SINGH (Migration)

[2018] AATA 2999

SINGH (Migration) [2018] AATA 2999 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gagandeep Singh

CASE NUMBER:  1704912

DIBP REFERENCE(S):  BCC2017/237409

MEMBER:David Barker

DATE:5 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 05 July 2018 at 1:32pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant genuinely intends to stay in Australia temporarily – Significant time spent not studying – Lack of future plan – Limited incentives to return to home country – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 March 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 January 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they were not satisfied the evidence demonstrated the applicant had a genuine intention to remain in Australia temporarily

4. The applicant appeared before the Tribunal on 1 May 2018 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

6. The applicant is a national of India and is 26 years old.

7. The Department delegate’s decision record, a copy of which was provided with the review application, states the applicant arrived in Australia in January 2014, holding a subclass 573 student visa, which was granted on the basis of his enrolment in a Certificate IV in Business, Diploma of Management and Bachelor of Business.

8. The delegate stated that after arriving in Australia the applicant had not commenced any of the courses he was initially enrolled in and undertook no study between January 2014 and September 2015, a total of 616 days. The delegate reports the applicant then completed a Certificate IV in Business course and at the time of the current application was enrolled to study a Diploma of Leadership and Management, Advanced Diploma of Leadership and Management and a Bachelor of Business, which would extend his stay in Australia until November 2019.

9. On 5 April 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 1 May 2018. That invitation among other matters, requested the applicant provide an explanation of any gaps in his enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

10. On 23 April 2018, the applicant provided the Tribunal with a written statement and evidence of his academic studies whilst in Australia.  In the written statement received by the Tribunal on 23 April 2018, the applicant stated:

    BACKGROUND
    The Applicant myself, [name supplied], 26 years old Indian National living in Seven Hills,
    Sydney ("the Applicant").
    The Applicant lodged electronically, an application for a Subclass 500 visa at on 18 January
    2017. On 02 March 2018 [name supplied] ("the Case Officer") refused the Applicant's visa application for a Subclass 500 visa.

    [name supplied] reasons for refusing the visa application are recorded in his Record of Decision dated 02 March 2018 and are summarised as follows:
    [name supplied] (the Case Officer) states that he is not satisfied with the my circumstances about how my gaps in study occurred. Mainly based on that my student visa was refused. I applied for a 500 (Student) visa on 18 January 2017. I was continuing my study in Australia. I first arrived in Australia on 20 January 2014 as the holder of a TU 573 visa. I have lodged an ap­plication for a further student visa Higher Education Sector 500 to study Diploma of Leader-ship and Management, Advanced Diploma of Leadership and Management and a Bachelor of
    Business.

    2. SUBMISSIONS
    The Case officer firstly stated circumstances in my home country. In the refusal letter he stat­ed that, I did not provide any significant evidences of my personal, employment or financial ties with my home country. He also stated that I am not married and have no dependent fami­ly member. The Case officer considered against the fact that I am single and have lack of strong employment or economic circumstances in my home country in India. Considering those perspective, he stated, my intend to stay Australia is not genuine. As I mentioned, I am 26-year-old now, but when I came to Australia in 20141 was only 22. In that age in my home country barely some students do part time jobs but does not have a strong employment. More on that my funds for staying in Australia was sponsoring by another person. And also, in the very young age, it's not a common scenario in India to be married or have a dependent family
    member as it has been in my case.

    The Case officer secondly stated on my refuses my educational history in Australia. He took into account my gaps in study and stated, my intend to stay Australia is not genuine. I re­mained in Australia for 616 days but not continued my study properly. Now in this matter I Feel very helpless. I am afraid to talk about those days and wish to not face days like those
    loneliness burden used to make me sad all the time. I was kind of mentally traumatised. I was not able to maintain my daily tasks. Sometimes I did not even take my meals as well. I do not know why exactly mentally unstable I was in those times. Maybe this was because, I was so
    emotionally attached with my family and friends in my home country

    It took too long to recover. I did not meet any specialist for my mental situation. Because in my home country, middle class peoples are not used to meet specialist for mental illness. Now, I'm continuing my study properly. I have completing my courses. I came Australia with a goal to gain higher education knowledge. With this knowledge I can get a good career path in my home country about what I always dream for. I want to live a happy life in my motherland with my loving family and friends. It is almost impossible to prove my mental condition those days. I know without evidences or strong prove no one can believe the situation like me but I am telling you true thing that I was in silent trauma which is not fit me to study properly. Now your generous consideration and faith on my honest statement can help a student who only wishing to finish his study and go back to his dream life path in his home country Otherwise this incomplete study history will destroy my life.

    The Case officer thirdly stated on visa refused my value of the course I am studying to my future. I do have a study background from IT but later I enrolled into a business course. This is because I was little interested in IT sector for my career. But soon I realised the job sector in my home country for IT is not so reliable. Taking into account this matter it raised serious concern to me. During my school days I have seen that great number of management executives who have qualified skills have obtained their qualifications from abroad, I also find out that there are huge opportunities for business professionals with overseas qualification in India. As very big country like India, there is uncountable private and multinational companies who are seeking qualified business professionals. Then I have decided to go abroad for higher studies and come back to my country and join in a company providing good salary and benefits, so I have discussed with my parents who are financially well, have agreed to send me abroad for further studies. I am convinced that It will be the best choice for my future career in my home country with the knowledges would acquire in Australia through my study Your kind consideration will help me to gain knowledges that can take me one step ahead in the competitive job market in my home country

    CONCLUSION
    We submit that me satisfy the Subclass 500 criteria, My courses of study is genuine but in the middle of the studies I have faced some problem which was behind my control but current!) I am studying well. I have stated in this honest explanation best to my understanding and knowledge and tried my best to satisfy the raised concerns while taking decision for my student visa application. I really hope to be granted this visa for continuing my genuine study:

    The hearing

11. In relation to his current study, the applicant said he has completed the Diploma of Leadership and Management and will finish the Advanced Diploma of Leadership and Management course in June 2018.  He said the Bachelor of Business course he has enrolled in will finish in June 2020.

12. The applicant said he came to Australia in January 2014 to study because in his home country he saw people that went abroad to study and got good jobs on their return to India.

13. With regard to not commencing the business courses that were the basis for his application for a subclass 573 Student visa, the applicant said he was lonely and does not remember much about the problems he had at that time.  He said he has studied consistently since he recommenced study in 2015. The Tribunal noted that in his written submission the applicant stated he was lonely and referred to having mental difficulties, which he had not wanted to talk about and that he had not sought any assistance from health professionals in relation to these difficulties.  The Tribunal asked the applicant if he wished to say anything further during the hearing about how these difficulties had impacted him and he indicated that he did not.

14. In response to a question from the Tribunal as to what he did in the period from January 2014 until September 2015, the applicant said he has no idea what he did during that time.  He then said he was in Brisbane for the first eight months and then moved to NSW.

15. In response to a question from the Tribunal as to whether he had any paid employment during the period he was not studying until September 2015, the applicant said he did not work.  In response to a question as to how he financially supported himself during that period of time, the applicant said he had $1,000, which his parents had given to him when he came to Australia and also friends gave him money from time to time. The applicant told the Tribunal he commenced work in a chicken factory in September 2015 and continues to work for this business.  He said he has a weekly net income of between $550 and $600.

16. The applicant told the Tribunal he completed the equivalent of year 12 in secondary school in India and also completed a diploma in information technology.  He said there is not much scope for jobs in the information technology sector in India and this is why he decided to study business courses when he came to Australia.  He said his plan is to finish his studies in Australia so that he can return to India and get a job and also be back with his family.  He said he plans to return to India after he completes his studies in 2020.

17. In response to a question as to whether he had looked into the option of studying the same or similar types of business courses in India, particularly in light of the claimed difficulties he had commencing his studies in Australia during 2014 and 2015, the applicant did not initially respond to this question and then said Australian qualifications are well regarded in India and that he wants to finish his studies in Australia.

18. The applicant said he lives in rental accommodation in Seven Hills, NSW with a close friend and that friend’s wife. He said he has no relatives in Australia and that back in India he has his mother and father, but no siblings.  He said his father is a farmer and his mother has no paid employment.  The applicant said he has returned to India on one occasion since his arrival in Australia and this was for four weeks in August 2016.

19. The applicant said he has no military service requirements that he needs to serve upon his return to India and no concerns regarding the political situation in India or civil unrest there.

20. In response to the Tribunal inviting the applicant to comment on its concerns, which include that he had failed to commence studies that were the basis for the higher education sector visa he was initially granted in 2014 and then had not then studied for a period of over 18 months. The Tribunal told the applicant  it was also concerned his evidence in relation to how he financially supported himself in Australia since January 2014 was not convincing and that he had only very general non-specific plans for how he would apply his studies to assist him gain employment in the future in his home country.  In response to these concerns the applicant said he wants to finish his studies and if he does not finish his studies it will spoil his future.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay in Australia as a student.

22. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

23. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

24. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

25. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

26. The applicant has not provided convincing reasons for his failure to complete the Certificate IV in Business, Diploma of Management, and Bachelor of Business courses he had initially enrolled in when he came to Australia.  His failure to commence these courses resulted in a very significant gap in his study history in Australia, from January 2014 to September 2015. In his   The Tribunal is not satisfied he has provided credible evidence to support the claim he made in his written statement that loneliness, sadness and mental trauma disrupted his studies.  The Tribunal noted the applicant gave evidence during the hearing that  he was at the time lonely  but declined the invitation to further elaborate on this claim, or explain why he had not sought assistance from mental health professionals, or a formal deferment of his study commitments if he was experiencing mental health difficulties during the January 2014 to September 2015 period. The Tribunal does not consider the applicant’s oral evidence that he cannot now recall clear details of how he spent his time during the January 2014 to September 2015 period to be plausible.  The Tribunal has accordingly placed no weight on the applicant’s claim he was unable to study due to a mental health condition or other emotional difficulties.  The applicant has provided no other explanation for not studying or maintaining enrolment in a registered course during the 616 days he remained in Australia between January 2014 and September 2015.  The Tribunal considers the aforementioned gap in the persuaded studies gives rise to a major concern he has sought to maintain his residency in Australia for reasons other than study and academic progression.

27. The Tribunal accepts the applicant has, since recommencing studies in September 2015, completed a Certificate IV in Business, Diploma of Leadership and Management. However the applicant has failed to provide credible evidence as to how he intends to apply the skills and knowledge he may gain from these and the further studies he intends to undertake in Australia. He claims he intends to seek work as a management executive or business professional in his home country on the basis of having gained overseas qualifications, which are well regarded in India.  He has however provided no further detail as to any specific research he has undertaken into job opportunities or potential employers in India. The Tribunal finds the applicant’s claims with regard to his future employment in his home country lack detail and specificity.  It is also not apparent on what basis the applicant determined there was no scope for employment in India with the information technology qualifications he acquired in his home country before coming to Australia.

28. The Tribunal is also not persuaded by the applicant’s evidence with regard to how he supported himself from January 2014 to September 2015.  Whilst accepting he may have received financial support from his parents to the amount of $1,000 and also money from friends gave from time to time, the Tribunal is not convinced this can reasonably account for all of his living expenses during the aforementioned period. 

29. The applicant has had stable employment in a chicken factory since September 2015.  The Tribunal notes this employment does not appear to have particular relevance to the studies he has undertaken since that time.  The Tribunal also considers the applicant’s employment in Australia gives reside to concern that his earning potential in Australia, in comparison to that in his home country, provide him with an economic incentive to maintain his residency in Australia.

1. The Tribunal accepts the applicant has no military service commitments, no concerns regarding civil unrest in India, or the political situation there, which would provide a clear incentive for him to not return there.  The Tribunal also accepts the applicant has family ties to India and whilst he also has close friends in Australia, the Tribunal is satisfied his familial ties to India are stronger than his ties to Australia.  However, the Tribunal has formed the view that the applicant’s lack of travel back to his home country, when viewed in conjunction with the other available evidence, gives rise to concern he has not maintained a strong connection to his home country since coming to Australia in January 2014.  The Tribunal considers the length of time he has now spent in Australia, along with his stable employment since at least September 2015 are indicative of the strong ties he has developed to Australia.

2. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

3. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

4. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

   David Barker
   Member