Singh (Migration)

[2018] AATA 1131

Singh (Migration) [2018] AATA 1131 (14 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Janakbir Singh
Mrs Kamal Neel
Miss Japleen Kaur

CASE NUMBER:  1613149

DIBP REFERENCE(S):  BCC2016/1083489

MEMBER:Stephen Conwell

DATE:14 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 14 March 2018 at 5:11pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether the applicant is a “Genuine Temporary Entrant” – Extensive time spent in Australia – Limited value of further studies – Limited incentives to return to home country  

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 2, cl 572.223(1)(a), 572.322

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 2 June 2016. The delegate decided to refuse to grant the visas on 2 August 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 the “Genuine Temporary Entrant” criterion which applies in each sub-class of the Student visa.

4. The applicants appeared before the Tribunal on 16 January 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Where used in this decision:

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

   b.COE refers to Certificate of Enrolment;

   c.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   d.VET refers to Vocational Education and Training;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application;

   g.GTE refers to the Genuine Temporary Entrant criterion for Student visa applications;  and

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Sub-class 580

7. 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 had not been used; therefore it appeared the application was not a valid application for a Sub-class 580 visa.

8. 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.

9. 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.

10. Having regard to the applicant’s current proposed course of study, the relevant sub-class in this case is Sub-class 572.

    Genuine Temporary Entrant

11. A major 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)     …

12. 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.

13. 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.

14. At Hearing, the applicant was:

    a.Given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;

    b.Informed that 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;

    c.Informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.Given an overview of the considerations laid out in Direction No.53 as summarised above;

    e.Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the tribunal Hearing;

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

15. The Tribunal then had a discussion with the applicant regarding the issue which focused  on the considerations laid out in Direction 53.

    Background

16. At Hearing, the applicant confirmed that:

    a.    He first arrived in Australia on a 572 Student visa in July 2009 for the purpose of studying for a Bachelor of Information Technology (IT);

    b.    He came to Australia after completing his high school education in India in 2003.

    Study History

17. The delegate’s decision observes that since his arrival in Australia as the primary holder of a Student visa, the applicant has been enrolled in 26 courses, yet has only completed 10 of those courses. Furthermore the applicant had made several changes between unrelated courses from Hospitality Management to Hospitality (Commercial Cookery) to Hospitality to Horticulture  (Wholesale Nursery) to Production Horticulture to Business to Management to Marketing to Management; he had also changed educational providers several times. 

18. At Hearing the applicant produced current COEs to confirm his enrolment in a Diploma of Marketing and Communication and an Advanced Diploma of Marketing and Communication.

19. According to the delegate’s decision. the applicant’s PRISM record shows that the applicant had been enrolled in the following courses at the time of the delegate’s decision:

7C5FEA64	Diploma of Marketing [073738J]	17/10/2016	17/04/2017	Cancelled
7D036D71	Diploma of Marketing [087399G]	17/10/2016	17/04/2017	Approved
7C5FBB62	Certificate IV in Marketing [073737K]	14/03/2016	14/09/2016	Cancelled
7D036A39	Certificate IV in Marketing [087103G]	14/03/2016	14/09/2016	Studying
6057C240	Advanced Diploma of Marketing [073736M]	16/02/2015	16/02/2016	Cancelled
60589C62	Advanced Diploma of Management [073735A]	16/02/2015	16/02/2016	Finished
5E88AA76	Advanced Diploma of Management [073735A]	24/11/2014	24/11/2015	Cancelled
6057A344	Diploma of Marketing [073738J]	21/07/2014	21/01/2015	Cancelled
60589114	Diploma of Management [067329K]	21/07/2014	21/01/2015	Finished
5E889E47	Diploma of Management [067329K]	21/04/2014	21/10/2014	Cancelled
60573F59	Certificate IV in Business (BSB40207) [067330F]	03/03/2014	03/07/2014	Finished
603B2536	Diploma of Production Horticulture [080645M]	18/11/2013	02/03/2014	Finished
5E888A81	Certificate IV in Business	16/09/2013	16/03/2014	Cancelled

4C57F863	Diploma of Production Horticulture (RTE50303) [063157B]	03/10/2012	02/10/2013	Finished
4C57F123	Certificate III in Horticulture (Wholesale Nursery) (RTF30603) [066987F]	03/10/2011	02/10/2012	Finished
44664571	Diploma of Hospitality (SIT50307) [068349J]	16/05/2011	13/11/2011	Finished
362B8190	Diploma of Hospitality (SIT50307) [068120G]	11/04/2011	23/09/2011	Cancelled
43241624	Diploma of Hospitality (SIT50307) [068120G]	11/04/2011	09/09/2011	Cancelled
3680CF65	Diploma of Hospitality (SIT50307) [068120G]	21/03/2011	23/09/2011	Cancelled
44662E73	Certificate IV in Hospitality (Commercial Cookery) (SIT40407) [068348K]	15/11/2010	15/05/2011	Finished
3680C412	Certificate IV in Hospitality (Commercial Cookery) (SIT40407) [068118B]	01/11/2010	18/03/2011	Cancelled
362B7F44	Certificate IV in Hospitality (Commercial Cookery) (SIT40407) [068118B]	01/11/2010	25/03/2011	Cancelled
43241216	Certificate IV in Hospitality (Commercial Cookery) (SIT40407) [068118B]	27/09/2010	25/03/2011	Cancelled
35444537	Advanced Diploma of Hospitality Management (THH60202) [046988D]	28/09/2009	09/09/2011	Cancelled
362B7C12	Certificate III in Hospitality (Commercial Cookery) (SIT30807) [068116D]	28/09/2009	29/10/2010	Finished
35443822	General English Beginner to Advanced (10/20/40 Weeks) [026952D]	20/07/2009	25/09/2009	Finished
302B4F60	Advanced Diploma of Hospitality Management (THH60202) [046988D]	06/07/2009	17/06/2011	Cancelled
2FD3E758	Advanced Diploma of Hospitality Management (THH60202) [046988D]	06/07/2009	17/06/2011	Cancelled
2F0ED211	Advanced Diploma of Hospitality Management (THH60202) [046988D]	14/04/2009	25/03/2011	Cancelled
2FD3C758	General English Beginner to Advanced (10/20/40 Weeks)	16/03/2009	22/05/2009	Cancelled

2FDA4B11	General English Beginner to Advanced (10/20/40 Weeks) [026952D]	16/03/2009	22/05/2009	Cancelled
302B4496	General English Beginner to Advanced (10/20/40 Weeks) [026952D]	16/03/2009	22/05/2009	Cancelled
2F0ECB60	General English Beginner to Advanced (10/20/40 Weeks) [026952D]	12/01/2009	20/03/2009	Cancelled

s.359AA

1. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant information from the Provider Registration and International Student Management System known as PRISMS. The Tribunal explained:

   a.that this information is relevant to the review because, when considered alongside all the other information before the Tribunal it could have reason to believe that the applicant was seeking to circumvent the ordinary migration program by using the Student visa program as a means to maintain ongoing residence in Australia;

   b.that if it relied on this information it may lead it to believe that he did not intend to stay in Australia temporarily, and did not meet cl.572.223(1)(a). If the Tribunal finds this to be the case, it would be the reason or a part of the reason for affirming the decision that is under review.

2. The applicant was informed that he could comment or otherwise respond to the information or that he may seek additional time to comment or respond to the information.

3. The applicant confirmed that he understood the relevance of this information to the process. He did not elect to seek additional time and agreed to discuss the PRISMS information during the course of the Hearing.

4. At Hearing the applicant explained that his enrolling in a catalogue of courses during his stay in Australia was influenced by his career goal of establishing an organic food business in India. For that reason he believes it was necessary for him to study Hospitality, Horticulture Production as well as Marketing.  In his “Natural Justice” letter submitted to the Department (DIBP File f.27) in June 2016, the applicant states that he has plans to establish an organic restaurant in India.

5. In a written submission prepared by his migration agent and received by the Tribunal via email dated 22 January 2018, the migration agent writes:

   The reason why Mr. Singh changed VET courses is that he is looking for qualifications that better suit his personal abilities and skills.  Further, with the considerable increase in the cost of education and living in Victoria, Mr. Singh opted for a course that would give him better payment options – Mr. Singh’s student visa conditions only grant him 40 hours of work fortnightly.

6. This statement appears to suggest that Mr. Singh’s subject choices are governed by what he can afford during his lengthy stay in Australia, rather than by alignment with his stated career goals, which he contends lie outside Australia. The Tribunal accepts that studying in Australia requires a considerable financial investment by an overseas student; however having made  that financial commitment to study in Australia, a genuine student is expected to study in a manner which indicates academic progression, particularly since by doing so, the overseas student can achieve their study outcomes in the most timely and cost-effective manner.

7. The Tribunal finds that the applicant’s study history shows that the applicant has made numerous course changes during his almost 9 years in Australia. The Tribunal finds that these changes between unrelated courses could not be adequately explained by the applicant’s evidence or by reference to his stated career plan. The Tribunal is not persuaded by the explanation offered by and on behalf of the applicant, that his many enrolments in almost 9 years in Australia have been driven by his stated career goal or by his desire to obtain qualifications “that better suit his personal abilities and skills”.  The Tribunal therefore gives little weight to this evidence.

8. The applicant’s study history also suggests to the Tribunal that the applicant has the financial means to support himself and his family whilst in Australia – and that may include financial support from family in India; what the Tribunal does not find in the applicant’s study history is evidence of academic progress towards a clear and credible career goal which lies overseas.

   Applicant’s Future plan

9. In his “Natural Justice” letter, provided to the Department (DIBP File f.26-27) in September 2015, the applicant states that his long-term career goal is to set up “restaurant chains in India”. and further that his intention is to introduce [the] “organic restaurant Concept(sic) [to] India.” The Statement contains no further details regarding the implementation of such a plan, its potential costs, challenges or strategies for its success. Similarly the submission prepared by the applicant’s representative speaks generally of the applicant’s “great potential to become a successful business man and find himself a carrear(sic) in his home-country”. 

10. At Hearing the applicant was unable to imbue this plan with further details regarding the set-up costs or business plans of this venture. This suggests to the Tribunal that it is not a genuine career goal of the applicant since it is apparent that the applicant has given little thought to its practical implementation.

11. The Tribunal observes that by the early 2016, the applicant had already attained a Diploma of Hospitality ( (2011); Diploma(s) of Production Horticulture (2013/14) and an Advanced Diploma of Management (2016), thus it would seem that the applicant had acquired more enough skills to leave Australia to implement his stated business plan. By February 2016, he had acquired horticultural, hospitality and management qualifications, skills and knowledge.

12. The Tribunal asked the applicant why he had not left Australia at that point, particularly as his Student visa expired in March 2016, shortly after completing his Advanced Diploma studies. The applicant’s response referred generally to his needing to learn all facets of the hospitality sector, including marketing before he felt confident enough to leave Australia and implement his future plan.  Given the applicant’s lengthy stay in Australia, at considerable financial cost, the Tribunal finds this explanation lacks credibility and gives little weight to this evidence.

13. The Tribunal is not persuaded that the applicant’s stated future plan of establishing “an organic restaurant or “restaurant chain” in India is a well-developed or genuinely held career or business goal.

    Value of Course to the Applicant’s Future

14. The Tribunal questioned the applicant on the value of his latest course - Diploma of Marketing  and Communication – to his stated future plan. It was put to him that this was a generic marketing course offering little value to someone who already has both hospitality and advanced managerial skills in order to start a restaurant business in his home country. The Tribunal is not persuaded by the applicant’s response that by enrolling in this course he would gain further practical knowledge in marketing.

15. The Tribunal considers that the skills and knowledge that the applicant had acquired by early 2016 armed him with sufficient skills to confidently tackle the operational and managerial challenges of establishing a restaurant or chain of restaurants in his home country.

16. The applicant had a very definite choice when his student visa was to expire in March 2016 and it was suggested to him that by that time he had (as noted above) more than sufficient skills, knowledge and qualifications for the plan that he claimed for himself there.

17. Despite this, the applicant did not yield to his incentives to return to India.  He applied for another student visa and proposed a course of further study that the Tribunal finds has limited incremental additional value to his future plan when placed alongside the catalogue of qualifications he already has acquired in Australia. 

1. Put simply, if as he contends, the applicant is a genuine student with a genuine intention to reside temporarily in Australia the Tribunal finds that by March  2016, at the expiry of his student visa, the applicant had every personal and professional reason to cease his residence in Australia. His own conduct in proposing a further stay to study a course of very limited value to his future suggests that he will not yield to the array of incentives he has to leave Australia, but rather intends to stay on in Australia.

2. The Tribunal does not accept that this latest proposed course is of appreciable additional value to the applicant’s stated future plan. The Tribunal finds that the applicant has sought to enrol in this course as a means of supporting the grant of yet a further student visa for the purposes of prolonging the applicant’s already lengthy stay in Australia, rather than because the course held distinct value when placed next to the practical and relevant qualifications already completed.

3. The applicant’s proposed study plan would see him and his family remain in Australia until at least March  2019, thereby bringing his total time spent in Australia on temporary visas to almost a decade. Although the Tribunal accepts that some educational and career pathways require many years of study, on the evidence submitted, the Tribunal is am not satisfied that the applicant’s stated future plans fall into this category.

4. Overall, the Tribunal finds it difficult to reconcile the applicant’s protracted study history in the VET sector and his lengthy residence in Australia with his claim that he is a genuine temporary resident. Rather, the significant period of time spent in Australia since his initial arrival in 2009 coupled with his infrequent departures out of the country suggest that his potential circumstances in Australia outweigh any incentive he may have to depart.

   Circumstances in Home Country and Potential Circumstances in Australia

5. The applicant gave evidence that:

   a.his siblings - a brother and sister live in India, as do his parents; 

   b.he married in 2012 and has a young daughter who was born in Australia;

   c.his wife and daughter are with him in Australia on dependant visas.

6. In the GTE questionnaire that he completed before the Hearing the applicant listed his wife and daughter as residing in India; whilst this is incorrect and inconsistent with his oral evidence, the Tribunal accepts that this may have been a simple misunderstanding by the applicant in completing the form.

7. The Tribunal places weight on the applicant’s potential circumstances in Australia. The Tribunal notes that the applicant’s spouse and child are included in his application; it finds that having his immediate family in Australia with him greatly diminishes any incentive he may have to depart Australia upon completion of his studies.

8. The applicant confirmed that there was no adverse pertaining to the following factors indicated by Direction 53 that would prevent the applicant 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.

   Applicant’s immigration history

9. In the GTE questionnaire the applicant states that in the course of the nine years that he has been in Australia, he has left the country only on two occasions of short duration.  The Tribunal finds that the applicant’s immigration history, coupled with the fact that his immediate family are with him in Australia suggest that he will not yield to any incentives that he may have to return to India.

   Findings

10. Taking consideration of all the factors in Direction 53 overall, by December 2016, the applicant had every personal and business reason to cease his residence in Australia.  His own conduct in not doing so suggests that he will not yield to the incentives he has to leave Australia, including the presence of his parents and siblings in India; instead his conduct suggests that he intends to stay on in Australia with his immediate family.

11. The above factors cumulatively indicate the applicant is not a genuine student. Rather, the  appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and the applicant does not genuinely intend to stay in Australia temporarily.

12. Overall, given his study history, his potential circumstances in Australia, his immigration history and the lack of value of his current courses to his stated future, the Tribunal find that the applicant is using the Student visa program to circumvent permanent migration programs and the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that he intends to stay in Australia temporarily.

13. On the basis of the above, and having considered 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.572.223(1)(a).

14. The Tribunal finds the applicant does not meet an essential requirement of cl.572.223. 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.

15. The secondary visa applicants are the wife and daughter respectively, of the first-named applicant. As the first-named applicant has been found to not meet the above criterion the secondary applicants cannot meet the requirements of cl. 572.322. 

    DECISION

16. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

    Stephen Conwell
    Member