SINGH (Migration)

[2018] AATA 2612

SINGH (Migration) [2018] AATA 2612 (10 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaswinder SINGH

CASE NUMBER:  1615927

DIBP REFERENCE(S):  BCC2016/1032887

MEMBER:Stephen Conwell

DATE:10 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 10 June 2018 at 4:27pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the applicant is a ‘Genuine Temporary Entrant’ – Limited value of studies to future plans – Vague evidence of future plans – Limited ties to home country – Where applicant has previously applied for a permanent visa - Migration history not indicative of a Genuine Temporary Entrant – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 573.223, Schedule 8, Condition 8516

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 and Border Protection 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 8 March 2016. The delegate decided to refuse to grant the visa on 26 September 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the sub-class that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Sub-class 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Sub-class 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Sub-class 575); whether the applicant has the support of the relevant Minister (Sub-class 576); or whether the applicant has applied on the basis of being a Student Guardian (Sub-class 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of the “Genuine Temporary Entrant” (GTE) criterion which applies in each sub-class of the student visa.

4. The applicant appeared before the Tribunal on 13 February 2018 to give evidence and present arguments.

5. The applicant was represented in the Hearing by his registered migration agent.

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

7. Where used in this decision:

   a.   The applicant refers to the first-named applicant;

   b.   COE refers to Confirmation of Enrolment;

   c.   VET refers to Vocational Education and Training;

   d.   The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection);

   e.   Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications; and

   f.      IELTS refers to the International English Language Testing System.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Sub-class 580

8. At Hearing, the applicant was informed that the Sub-class 580 visa is for student guardians; where it is a requirement that the person will accompany a relative to or in Australia who is a student, and in order to make a valid application for a Sub-class 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1) and on the evidence it was not and therefore it appeared the application was not a valid application for a Sub-class 580 visa.

9. The applicant confirmed that Form 157G was not used and a Sub-class 580 visa was not sought, and was informed that the application appeared not to be a valid application for that sub-class in any event, and the Tribunal so finds.

10. For the remainder of this decision, a reference to sub-classes or all sub-classes of the Class TU visa does not include a reference to Sub-class 580.

11. Having regard to the applicant’s current proposed course of study, the relevant sub-class in this case is Sub-class 573.

12. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)     the Minister is satisfied that 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)     …

13. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

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

    At Hearing

15. At Hearing, the applicant was informed that:

    a.   a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter.

    b.   a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the Tribunal Hearing. The applicant confirmed that he had received and read the Direction.

    c.   all sub-classes of the Class TU visa have equivalent ‘genuineness’ criteria, and that if the criterion is not met, it would likely not be met for each of those sub-classes.

    d.   The primary objective of a Student Visa holder must be to study a registered course and progress academically.

    Background

    a.   At Hearing, the applicant confirmed the following that he first came to Australia on a 573 student visa on 18 August 2013.

    b.   In the GTE questionnaire that he completed just prior to the Hearing the applicant confirmed that he completed high school in 2012 in India, however he fails to mention that he’d also completed a Diploma in Computer Application and Hardware in India in 2013.  This information is disclosed in the Departmental file provided to the Tribunal and in the visa application which is the subject of this review. As this information does appear in the evidence before the Tribunal, the Tribunal gives no weight to its non-disclosure in the GTE questionnaire.

    Study History

16. According to the applicant’s PRISMS records (as discussed in the delegate’s decision) and the evidence submitted to the Tribunal the applicant’s study history is as follows:

    ·English for Academic Purposes (completed November 2013)

    ·Bachelor of Information and Communication Technology (Did not commence)

    ·Diploma of Information Technology (incomplete – ceased study October 2014)

    ·Certificate III in Commercial Cookery (completed December 2015)

    ·Certificate IV in Commercial Cookery (completed May 2016)

    ·Diploma of Hospitality  (completed December 2016)

    ·Bachelor of Business (commenced 20 March 2017; cancelled studies 4 September 2017)

    ·Bachelor of Business (re-commenced 4 September 2017; course ends 31 July 2020)

17. According to the applicant’s oral evidence and the written submission by his representative, upon arriving in Australia the applicant completed his English course, however he then experienced a period of homesickness, resulting in “low self-confidence, depressed mood, stress and anxiety”.  As a result of his homesickness and following discussions with his peers regarding his prospective studies at Swinburne University, the applicant decided to withdraw from the Bachelor of Information Technology which he was enrolled to study at Swinburne University, before the course commenced.

18. By withdrawing from the bachelor course for which his sub-class 573 visa had been granted, the applicant fell into breach of visa condition 8516. The applicant’s oral evidence was that he was unaware of this visa requirement and therefore ignorant of the breach. Whilst it is the responsibility of a visa holder to be apprised of, and comply with, the conditions attaching to his or her visa, the Tribunal accepts that Mr Singh was not aware of this technical breach at the time.

19. Upon being granted a Release from the bachelor’s course, the applicant enrolled in a Diploma of Information Technology at Academics Australasia Polytechnic (AA Poly), which was to be a pathway to the Bachelor of Information Technology at the University of Canberra (Melbourne campus).  According to his representative’s submission the applicant, “experienced growing disillusionment with the field of Information Technology, whilst he was studying the Diploma of Information Technology … [and] no longer could envisage a fulfilling career in Information Technology upon his return to India.”

20. It is the applicant’s contention that his homesickness, low confidence and anxiety convinced him to withdraw from his bachelor course without ever commencing it.  Next, his growing disillusionment with the field of Information Technology led him to withdraw from the Diploma of Information Technology midway through the course.  The applicant has tendered no supporting evidence with respect to his claimed depression, disillusionment and anxiety.  The Tribunal therefore cannot be satisfied in the absence of corroborative evidence that the applicant was incapacitated from study throughout this entire period, by reason of these mental challenges.

21. The Tribunal notes with concern the applicant’s hasty transfer from the Higher Education sector to the VET sector, without ever attending the course for which his sub-class 573 visa had been granted.  Whilst the Tribunal accepts that travelling overseas to study in a foreign language presents considerable challenges, the fact is the applicant had elected to do so of his own volition and had invested considerable time and money in arranging his study in Australia. Furthermore the applicant had already obtained a computing diploma in India, so the subject matter should not have been entirely foreign to him, albeit the language of instruction, English, was so.

22. Even if the Tribunal were to accept the applicant’s claims that he had experienced homesickness and ‘mental stress’ not long after arriving in Australia, it is an option for an overseas student to consider seeking treatment in the home country or elsewhere; to convalesce amongst family, until such time as the student feels able to study effectively and successfully in Australia – and perhaps then consider seeking a student visa for that purpose. 

23. The applicant offered no evidence of having sought a deferment of his studies in order to deal with these personal challenges, and he makes no claim of having requested a deferment or release from his studies. Despite the applicant’s claimed homesickness, anxiety and disillusionment, he remained onshore, seeking neither family support by returning home nor medical help such as counselling whilst in Australia.

24. For the reasons above the Tribunal is not persuaded by the applicant’s claim that homesickness and his poor mental state led to the cancellation of his bachelor studies and his subsequent withdrawal from his diploma course.

25. In his GTE Statement submitted to the Tribunal the applicant states that whilst he was working in a restaurant he discovered his skills in the kitchen; after discussing his new-found interest with his family and obtaining their support, he determined that he would pursue it further and obtain formal qualifications in the field of hospitality.

26. Given that the applicant had already completed a diploma in computer studies before electing to come to Australia to pursue studies in the same field, the Tribunal does not find it plausible that within a few years of his arrival in the country the applicant experiences an epiphany with respect to a new-found passion in cooking which leads him to pursue a new direction in hospitality.

27. Having proceeded to complete Certificates III and IV in Commercial Cookery and Diploma of Hospitality the applicant then returned to the Higher Education sector by enrolling in a Bachelor of Business in early 2017 (scheduled to be completed in July 2020).  According to his representative’s submission his enrolment in business studies was in order that he not breach his visa Conditions.  Whilst it is commendable that the applicant has shown belated concern for compliance with his visa Conditions, the Tribunal observes that an applicant’s study choices should be determined primarily by reference to his or her stated career goals.

28. The applicant’s GTE Statement to state that, “Australian business qualifications will allow me to enter a wide range of careers in a variety of businesses… Employers want leadership skills, ethics, global views and independent thinking.  The skills gained by completing a Bachelor’s Degree in Business can improve my career progression anywhere in the world.”  The Tribunal is not convinced that these statements are the authentic sentiments of the applicant; they appear to be generic in nature and lack credibility; the Tribunal finds they are self-serving to the applicant and gives little weight to them.

    Value of Course to Applicant’s Future

29. It is of concern to the Tribunal that having already obtained a computing diploma before arriving in Australia the applicant soon after, turned his back on this industry, both at the bachelor and diploma level.  His decision to then enrol in hospitality courses does not indicate a clear career plan, but suggests instead, that his study selections are motivated by migration and visa considerations. 

30. The Tribunal finds that the applicant has invested time and money in studying courses he claimed once had value to his career ambitions only to abandon that investment not long after his arrival in Australia.  Consequently the Tribunal attaches little value to the applicant’s current course selection with respect to the applicant’s future.

    Applicant’s Future Plan

31. At Hearing the applicant was questioned about his change of courses and his current enrolment in a Bachelor of Business. The applicant expressed a wish to gain a wide range of business skills to make him employable across a variety of industries; he also wished to finally acquire a Higher Education qualification, which is the reason he had originally sought entry into Australia.

32. In totality, the Tribunal finds the GTE Statement to be generic in nature and anodyne in content; it does not allay the Tribunal’s concerns regarding the applicant’s hasty transfer from the Higher Education sector to the VET sector, nor its concerns regarding the authenticity of the applicant’s stated career goals.

33. The Tribunal finds the applicant’s claimed career aspirations to be tailored to fit with his current, or then current, course selection in Australia.  That is not as it should be.  If the applicant has career aspirations that are claimed to lead out of Australia back to the home country, the courses selected should seek to serve those purposes, and not the other way around.  The Tribunal finds the applicant’s professed declaration of a future career in hospitality lying overseas to lack credibility. The Tribunal is not persuaded that the applicant’s stated plan to pursue a career in hospitality back in India is a well-developed or genuinely held future plan.

    Ties to India

34. The applicant submits that he has strong ties to India, given that his parents and extended family are there. However in the GTE questionnaire completed before the Hearing, he confirms that since his arrival in Australia, he has returned there on only one occasion.  The Tribunal notes that the applicant is a single male with no children; he is eminently mobile and free to choose his current and future places of abode.

35. The applicant confirmed that there were no adverse reasons pertaining to the following factors indicated by Direction 53 that would prevent him from returning to India (and the Tribunal makes no findings against the applicant based on): any potential military service in the home country, economic or political circumstances in the home country, civil unrest in the home country, circumstances in the home country relative to Australia or any other country, the applicant’s circumstances in the home country relative to others in that country.

36. The Tribunal is not persuaded by the applicant’s claim to have strong ties to his home country, India.

    Immigration history

37. Despite his claims to having close ties to his home country, the applicant confirms that since arriving in Australia he has made only one return visit to India.  The applicant also confirmed that he has applied for permanent migration via the Regional Sponsorship scheme (sub-class 187). The Tribunal finds such an application to be at odds with the applicant’s claim to intend a temporary stay in Australia.

38. In weighing up the evidence the Tribunal is not persuaded by the applicant’s stated claim to be a genuine student, intending to reside temporarily in Australia, and having strong ties to his home country. The Tribunal finds the applicant’s immigration history, including his efforts to seek permanent residency in Australia, shows the applicant to be, not a genuine student intending to progress academically, but rather someone who is using the Student visa program to maintain residence in Australia whilst he pursues avenues for permanent residency. 

    Potential Circumstances in Australia

39. Should his visa be granted the applicant’s proposed study plan would see him remain in Australia until 2020; this would bring his total time spent in Australia on temporary visas to over seven years. Whilst the Tribunal accepts that some educational and career pathways require many years of study, on the evidence before it, the Tribunal is not satisfied that the applicant’s stated future plans fall into this category.

40. In oral evidence, the applicant confirmed that his only other sibling, his elder sister, is currently in Melbourne on a Student visa; she is married and her husband remains in India. The Tribunal finds that having his only sibling also here in Australia provides a further incentive for the applicant to seek to maintain ongoing residence here for an indefinite period.

41. Overall, the Tribunal finds it difficult to reconcile the applicant’ proposed stay onshore and his application for Regional Sponsorship visa with his claim that he is a genuine temporary resident. Taking account of his immigration history, and the fact that his only other sibling is also currently studying in Australia, the Tribunal finds that the applicant’s potential circumstances in Australia outweigh any incentive he may have to depart.

    Findings

1. The Tribunal finds that the applicant has, by his conduct, shown that he is unwilling to depart Australia despite having acquired qualifications and skills in fields that he chose for himself for the stated purpose of pursuing a career in his home country or elsewhere.

2. The Tribunal considers that the applicant’s actions in seeking further stay by seeking to extend his stay through enrolment in business studies indicate that the proffered reasons and incentives he has to return to his home country do not carry the weight he claims.

3. His actions in applying for permanent residency under Australia’s Regional Sponsored Migration scheme suggest that the applicant’s primary goal is to seek permanent residency in Australia rather than to study and progress academically as he claims. 

4. For these reasons, the Tribunal is not satisfied that the applicant intends to cease his residence in Australia as claimed.  Rather, the Tribunal finds that, if given the opportunity the applicant will continue to seek to prolong his stay in Australia indefinitely or at least until such time as he is able to secure a more favourable visa status here.

5. On the basis of the above, and having considered Direction 53 as well as the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.573.223(1)(a).

6. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. With the exception of Sub-class 580, the other sub-classes within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these sub-classes. In respect of Sub-class 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that sub-class. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

   DECISION

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

   Stephen Conwell
   Member