Singh (Migration)

[2018] AATA 1150

Singh (Migration) [2018] AATA 1150 (4 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ranjit Singh

CASE NUMBER:  1620796

DIBP REFERENCE(S):  BCC2016/1887663

MEMBER:Richard West

DATE:4 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 04 April 2018 at 1:29pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa – Previously held student, partner and bridging visas – Chequered study history – Factors outside his control – Bridging visa restrictions – Period of time as a dependant on a spousal visa – Ties to Australia do not suggest that he has a strong incentive to stay in Australia either – Genuine temporary entrant

LEGISLATION
Migration Act 1958, ss 65, 137J, 359AA, 499
Migration Regulations 1994, Schedule 1 Item 1222 Schedule 2 cl 572.223

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 27 May 2016. The delegate decided to refuse to grant the visa on 23 November 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 subclass 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 (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of 572.223 (1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant intended to stay in Australia temporarily.

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

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the applicant meets the requirement of cl.572.223(1)(a), and it will remit the matter to the delegate for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572 Vocational Education and Training Sector.

8. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(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)     …

9. 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.

10. 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.

11. The Tribunal is satisfied that the applicant had a proper opportunity to present his case both at the hearing and in written submissions filed with the Tribunal before the hearing.  The applicant appeared at the hearing on 13 March 2018 and gave evidence.  The Tribunal also had regard to the written statement of purpose provided to the Department in support of the application in 2016 and the documents provided to the Tribunal by the applicant’s agent on 9 March 2018.

    Immigration History

12. The applicant is an Indian national. 

13. He first entered Australia on 8 December 2007 having been granted a Student Class TU 573 visa off shore on 13 November 2007. The visa was valid until 8 January 2008. He was then granted a TU 573 visa on 8 January 2008 valid until 29 May 2008, then a TU 572 visa on 29 May 2008 valid until 12 May 2010 and then a further TU 572 visa on 12 May 2010 valid until 5 January 2011. This visa was cancelled in July 2010 for breach by the Minister pursuant to s.137J of the Migration Act and the applicant was granted a bridging visa which did not permit him to work, study or travel outside Australia. The cancellation was later revoked by letter dated 23 September 2010 on the basis that the breach was due to exceptional circumstances beyond the applicant’s control (AAT folio 93).

14. The applicant was married in November 2010 and subsequently was granted a dependant TU 572 visa on 5 January 2011 valid until 13 September 2011, a further dependant TU 572 visa on 13 September 2011 valid until 16 October 2012 and a third dependant TU 572 visa on 16 December 2012 which was cancelled on 25 June 2013 when his spouse advised the Department that their relationship was over following their divorce on 16 February 2013.  Following the cancellation the applicant was granted a bridging visa which did not permit him to work, study or travel outside Australia. 

15. The applicant then applied as a primary applicant for a TU 572 visa on 1 February 2013.  The application was refused on 22 August 2013 and following a successful appeal the application, was granted and a TU 572 visa on 23 October 2014 valid until 30 June 2016.  The applicant applied for a further TU 572 visa on 27 May 2015.  It was refused on 23 November 2016.  It is this refusal that is the subject of this appeal.

16. Since arrival the primary applicant has held either a student visa as a primary or dependant visa holder or associated bridging visas.   There is no evidence that the primary applicant has not complied with his visa conditions throughout this period. 

    Adverse Information

17. During the hearing on 13 March 2018 the applicant was advised in accordance with s.359AA of the Migration Act that the Tribunal intended to put information to the applicant that without explanation was something that the Tribunal considered would be a reason, or part of the reason for affirming the decision under review. The information was the applicant’s Provider Registration and International Student Management System (PRISMS) record. It was explained to the applicant that the information was relevant to the review because it may lead the Tribunal to form the view that it documents a long history of unrelated courses, courses that were not started or that were started and shortly after cancelled and that the consequences of the information being relied on may be that the Tribunal formed the view that the applicant is not a genuine student and his visa should be refused. The applicant was given a copy of the PRISMS record and an opportunity to read through it and offered additional time before responding to the document and the Tribunal’s questions related to it.

    Study History

18. Based on the PRISMS record and the applicant’s responses to the Tribunal’s questions and the documents provided by the applicant, the Tribunal makes the following findings in relation to the applicant’s study history in Australia:

    ·    from 10 December 2007 to 15 February 2008 the applicant completed a Certificate in English Language Proficiency course from Holmes College;

    ·    from 17 March 2008 until 12 March 2010 the applicant was enrolled in but did not complete a Diploma and Advanced Diploma of Hospitality Management from Holmes College;

    ·    the applicant was enrolled in but did not complete a Diploma in Hospitality Management course leading to an Advanced Diploma and Bachelor of Business at the Technical University between March  and September 2010;

    ·    in September 2010 the applicant enrolled in a Certificate III in Automotive Mechanical Technology leading to a Diploma of Automotive Management course but did not complete the course;

    ·    .the applicant did not study from  January 2011 until October 2014;

    ·    from  21 October 2014 to 21 April 2015 the applicant completed a Certificate IV in Project Management;

    ·    the applicant was enrolled in a Diploma of Project Management course which was to run from 15 May 2015 until 30 April 2016 but he cancelled his enrolment in the course;

    ·     the applicant completed a Certificate III in Commercial Cookery from 6 July 2015 until 28 June 2016; a Certificate IV in Commercial Cookery from 4 July 2016 to 12 February 2017 and a Diploma of Hospitality from 3 April 2017 until 9 December 2017 at the Australian Vocational, Education and Training Academy (AVETA); and

    ·    the applicant is currently enrolled in an Advanced Diploma of Hospitality Management at AVETA to complete on 10 June 2018

19. The applicant was questioned by the Tribunal about his study program having regard to three distinct periods.  First the period from his arrival in Australia in December 2007 until he was granted a dependant student visa in January 2011, secondly the period from January 2011 until the grant of his student visa in 23 October 2014 and finally the period from October 2014 until the present.

    December 2007 – January 2011

20. During this period the applicant was the holder of a series of student visas commencing with two short duration TU 573 Higher Education sector visas and followed by two TU 572 Vocational Education Sector visas the latter of which was ‘interrupted’ for a period of 2 months by Ministerial cancellation and then reinstatement. The applicant said he applied for the initial TU 573 visa for the purpose of studying for a Bachelor of Business but he did not progress beyond the Diploma of Hospitality course in which he commenced.  The applicant explained that he found the course difficult and on the advice of his migration agent he decided to change courses to start at the Certificate III level and then progress through the Diploma course to eventually complete his degree.  He stated that he enrolled in the Victorian International College which shortly afterwards closed down and his enrolment transferred to the Technical University in Albert Park.  He gave evidence that he did not think the facilities at the institute were adequate for the practical aspects of the course and in particular that the cookery teaching was being conducted in a domestic kitchen.  He withdrew from the course and this led to the cancellation and later reinstatement of his visa.in September 2010.  The applicant then said that he lost faith in the hospitality option because of the problems he had had with the colleges and instead he enrolled in an Automotive course once his visa cancellation was revoked. He offered no explanation for not continuing with the Automotive course and it seems that he just lost interest in it.

21. In November 2010 the applicant married and he then was granted a dependant visa with his wife as the primary visa holder.

22. The Tribunal makes no specific findings in relation to this period as the evidence provided by the applicant was not sufficiently specific in many respects.  The Tribunal does accept, however, that the applicant was affected by circumstances during the period beyond his control as confirmed by the reinstatement decision of the Minister in respect of his visa cancellation.  Nevertheless the Tribunal is also satisfied that the applicant’s approach to his studies during this period was poorly managed and indicated that he lacked a genuine interest in his study options.

    January 2011 – October 2014

23. During this period the applicant did not study at all.  During the initial period from January 2011 and June 2013 when he was a dependant visa holder the applicant was not required to be enrolled in any course. During the latter period from June 2013 until October 2014 the applicant was subject to a bridging visa which prevented him from studying or returning after travelling outside Australia. 

24. Given these circumstances it is difficult to draw conclusions about the applicant’s genuine intentions and whether his conduct at that time can be relied on to indicate one way or another whether at the time of the Tribunal’s decision he is a genuine student who genuinely intends to remain in Australia temporarily.  It is understandable that the applicant remained in Australia during this period even though he was not engaged in study.  Initially he was here with his spouse who was studying and then after the relationship ended he could not re-enter the country if he left.  Accordingly the Tribunal does not attach significant weight to the events during this period in assessing whether the applicant now meets the relevant criterion.

    October 2014 - Present

25. The applicant stated in his evidence that once he was granted a TU 572 visa in October 2014 and was no longer subject to the restrictions on his bridging visa he was able to return to his first area of interest, hospitality.  Since that time the applicant has applied himself diligently to his studies and has completed a Certificate III, Certificate IV and a Diploma of Hospitality.  He is currently part way through his Advanced Diploma course and stated in his evidence that upon completing the course he intends to return to his home country to pursue a career in hospitality.  The Tribunal has considered the applicant’s conduct in this period and is satisfied that during this period the applicant has demonstrated that he is a genuine student who has undertaken a course of study which has a specific career focus which would be relevant to a future career in his home country. The Tribunal also accepts that the applicant has sound reasons for undertaking that study in Australia.

    Direction 53 Issues

26. Direction 53 requires the Tribunal to have regard to whether the student is undertaking a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. 

27. The applicant gave evidence that his intention when he completes his Advanced Diploma is to return to India and seek a managerial position in the hospitality industry.  The applicant gave no specific indication of his employment options in India and no evidence of having researched the issue beyond a general assessment that he would have enhanced employment prospects with the Australian qualifications for which he is currently studying.  The Tribunal accepts as a general proposition that the applicant’s current course of study will assist him to obtain employment and improve his employment prospects in India.

28. Direction 53 further requires the decision maker to consider whether the applicant has used the student visa primarily for maintaining ongoing residence and/or to circumvent the intentions of the migration program and/or has enrolled in his current course for the purpose of maintaining ongoing residence in Australia contrary to the intention of the student visa system..

29. The evidence in relation to this factor is not definitive.  On the one hand there is evidence which suggest that the applicant is primarily concerned with maintaining residence in Australia. The simple fact that the applicant has been in Australia for over 10 years lends weight to that suggestion.  As does the applicant’s evidence that he has been back to India for only 60 days in that time, once in 2012 for his father’s funeral and another time in 2015 for a family religious function.  He admitted that he has not been back since 2016 because he claims he did not want to interrupt his studies.  In addition the applicant’s lack of progress and clear focus in the early period in Australia does suggest that he was motivated by a desire to stay in Australia rather than seriously pursue his studies. 

30. On the other hand, the applicant has had ties to Australia in the past which do provide some plausible explanation for him not travelling home frequently.  First he was married in Australia and for the time he was married his spouse was studying in Australia.  This factor is no longer relevant to the applicant’s intentions since he is no longer married but it does provide a legitimate reason why the applicant may not have travelled home during that period. Secondly, there were two periods in the past 10 years when he was subject to travel restrictions under his bridging visas.

31. The Tribunal also notes that the applicant’s conduct since October 2014, in contrast to earlier periods, has seen him focus on his studies and exhibit the behaviour of a student who is genuinely seeking to complete his studies in order to return home to pursue his career.

32. On balance the Tribunal is not satisfied that the applicant is now deliberately using the student visa system to maintain residence in Australia.

33. Direction 53 also requires the Tribunal to consider whether the primary applicant’s ties to his homeland provide an incentive for him to return and whether his ties to Australia provide an incentive for him to remain in Australia.  The primary applicant gave evidence about both matters.

34. The applicant has ties to his family in India but the Tribunal is not convinced that they are particularly strong ties.  The fact that the applicant has been in Australia for over 10 years and only travelled back to India for 60 days in that time strongly suggests that family is not a significant incentive for the applicant to return home.  The applicant also gave evidence that he has reached a point in his life where he now wants to return to India to settle down and get married.  He also said that he has friends in India and he is positive about his future employment prospects.  He also gave evidence that his mother has assets in the form of a substantial house in India which is an unencumbered property in which he could live when he returns.

35. As to his ties to Australia, the applicant gave evidence that he has had various jobs since coming to Australia including working in a carwash, as a team member at Hungry Jacks restaurant for 4.5 years and as a casual worker at the Paradise Valley Hotel.  He is currently working as a part time lessee taxi driver and has done so since 2014.  He gave evidence that he lives with friends in a shared house and has no relationship ties in Australia.  He said that he has enjoyed living in Australia and respects Australian values but insisted that he wants to return home once he has completed his current course.

1. On balance the Tribunal is not satisfied that there are strong incentives for the applicant in either case.  There are no really strong ties to Australia for the applicant.  He has no apparent future career here and no significant personal relationships. His family ties to India are not likely to provide a strong incentive for him to return home.  The best that can be said is that the applicant appears to see that he has a better opportunity to establish a settled family life in India with a wife and family and a realistic career in the hospitality industry. 

2. The Tribunal has considered the economic circumstances of the applicant and the remuneration the applicant could expect to receive in Australia and in India.  While the relative wages the applicant could earn as a taxi lessee and possibly in the hospitality industry in Australia are likely to be significantly higher than for equivalent positions in India the bare wages do not tell the complete story.  Factors such as the cost of living and the financial benefit of family support are also factors which may be relevant.  In the absence of any detailed evidence the Tribunal is not in a position to make a quantitative assessment of the issues.  The Tribunal is satisfied, however, that when all things are taken into account financial disparity is unlikely to be the determinitive factor in influencing the applicant to return home or to try to stay in Australia permanently.

3. There are no issues of military service or civil unrest relevant to the applicant’s circumstances.

4. In assessing whether the applicant meets the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations at the time of its decision the Tribunal is required to consider the applicant’s circumstances as a whole having regard to the factors set out in Direction 53. This is a case where that assessment is finely balanced.

5. The applicant had a chequered study history during his initial three years in Australia, although affected to some extent by factors outside his control. In the period 2011-2014 the applicant did not study.  He was for part of the time on a dependant visa and then later subject to restrictions under his bridging visa.  The Tribunal gives little weight to the circumstances which prevailed in these earlier periods in assessing whether the applicant is now genuine in saying that he intends to stay in Australia temporarily.  These periods are, however, relevant in that they add to the length of the applicant’s stay in Australia and support an inference that the length of his stay evidences an intention to maintain residence in Australia. The more relevant period is the period since October 2014 during which the applicant has demonstrated that he is a genuine student who has undertaken a course of study with a specific career focus which would be relevant to a future career in his home country.  Other factors are equivocal.  The applicant has not demonstrated strong ties to his home country but then his ties to Australia do not suggest that he has a strong incentive to stay in Australia either.  The applicant says that he now feels it is time for him to go home and settle down.  The Tribunal accept this evidence and takes some comfort from the fact that the applicant’s conduct in focussing on his studies is consistent with that evidence. 

6. Taking these matters into account and assessing the applicant’s circumstances as a whole the Tribunal is satisfied that the applicant is genuine when he says that he intends to return to India at the completion of his current course of study.

7. Accordingly, on the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.572.223(1)(a).

8. As the Tribunal has found the applicant meets the requirement of cl.572.223(1)(a), it will remit the matter to the delegate for reconsideration.

   DECISION

9. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

   ·cl.572.223(1)(a) of Schedule 2 to the Regulations.

   Richard West
   Member