Singh (Migration)

[2018] AATA 603

Singh (Migration) [2018] AATA 603 (7 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gulzar Singh
Mrs Kanvaljeet Kaur

CASE NUMBER:  1619627

DIBP REFERENCE(S):  BCC2016/1040320

MEMBER:Tim Connellan

DATE:7 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 07 March 2018 at 10:35am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether applicant genuinely intends to stay in Australia temporarily – Lack of academic progress – Courses undertaken not related - Limited evidence of Applicant’s intention – Applicant did not attend hearing – Applicant did not provide submissions to Tribunal

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

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 and Border Protection 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 for the visas on 10 March 2016. The delegate decided to refuse to grant the visas on 3 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 visas because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because the delegate was not satisfied the primary applicant was a genuine applicant for entry and stay as a student who intended to stay in Australia temporarily.

4. On 9 February 2018 the applicants were sent an ‘Invitation to Appear before the Tribunal’ at a hearing scheduled for 6 March 2018 to give evidence and present arguments relating to the issues in their case.

5. The hearing invitation asked that additional information be provided, including:

   ·     A copy of your current Certificate of Enrolment (CoE) as required for the grant of a student visa

   ·     Documents that show you are currently enrolled in a course, orl have an offer of enrolment in a registered course, as required for the grant of a student visa.

   ·     Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

   ·     An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.

   ·     The applicant was further advised the Tribunal would assess whether they intend to genuinely stay in Australia temporarily and requested a written statement addressing the issues of whether the primary applicant was a genuine temporary entrant by referring to ministerial direction number 53. A copy of which was attached.

6. The Tribunal received a response to hearing invitation signed and dated 22 February 2018 in which the applicants had ticked the box saying that they would not take part in the Tribunal hearing scheduled for 6 March 2018.

7. On 5 March 2018, the primary applicant telephoned the Tribunal to advise he would not be attending the hearing scheduled for the following day. The Tribunal officer advised the applicant his response had been noted.

8. The applicants did not attend the schedule hearing.

9. The applicants did not provide the requested evidence or make any submissions in support of their application.

10. In light of the applicants decision, the Tribunal has made a decision on the information available on file, including the primary decision record, a copy of which was provided with the review application.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The visa application listed the intended course of study as an Advanced Diploma of Management scheduled to run between 27 April 2015 and 10 April 2016, meaning the relevant subclass in this case is Subclass 572.

12. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.222 regarding enrolment and cl. 572.223 regarding Genuine temporary Entrant criteria. The regulations relevantly state:

    572.222
    The applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course).

    572.223

    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

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.

15. In the primary decision, the delegate detailed a number of concerns including the applicant’s study history of a number of unrelated courses in business, management, automotive technology and questioned the value of the proposed course to the applicant’s future.

16. The applicant only provided very generic responses as to why he was studying his intended courses and failed to detail a specific career goal which the delegate found indicated he was not a genuine student but was seeking to use the student visa program to maintain residency in Australia.

17. Despite a request to do so the applicant failed to provide any evidence of ties offshore that would represent an incentive to depart upon completion of his studies leading the delegate to find he was likely using the student Visa program to maintain defector residency.

18. The delegate was concerned that the timing of the applicant’s Visa application, expiry of his previous visa and enrolment of his intended courses indicated that his motivation was to secure a student Visa rather than a genuine interest in study and academic progress.

19. The delegate found the applicant had not provided any substantial reasons as to why he had chosen to study his intended courses.

20. The delegate stated “Overall, given your lack of academic progress, your study history, your potential circumstances in Australia, your immigration history and the lack of value of the courses to your future, I find that you are using the student Visa program to circumvent permanent migration programs and I am not satisfied that you are a genuine applicant for entry and stay as a student and that you intend to stay in Australia temporarily.

    In summary, I am not satisfied that you genuinely intend a temporary stay in Australia.

21. Given the applicant’s failure to provide evidence of current enrolment, the Tribunal is not satisfied the applicant is currently enrolled and therefore satisfies clause 572.222.

22. The applicant’s failure to provide a submission addressing the issues of whether or not he is a genuine temporary entrant and his failure to attend a hearing means the Tribunal is not in a position to consider his current views.

23. On the basis of the primary decision and without any evidence to the contrary, the Tribunal is not satisfied that the primary applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

24. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses 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 subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. 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.

25. The application of the secondary applicant Ms Kanvaljeet Kaur was dependent on that of the primary applicant, and was made on no other basis. Having found that the visa applicant does not meet the essential criteria referred to above, Ms Kaur’s refusal decisions must also be affirmed.

    DECISION

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

    Tim Connellan
    Member