Singh (Migration)

[2018] AATA 183

Singh (Migration) [2018] AATA 183 (7 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bikram Singh
Mrs Sukhwinder Kaur

CASE NUMBER:  1614287

DIBP REFERENCE(S):  BCC2015/3771255

MEMBER:Stephen Conwell

DATE:7 February 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 February 2018 at 5:15pm

CATCHWORDS

Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training Sector) – 10 year stay in Australia – Never studied at the higher education level in Australia – Personal circumstances – Wife’s difficulties during pregnancy – Australian born child – Latest course enrolment – Lack of value to applicant’s future plans – Non-genuine temporary entrant

LEGISLATION
Migration Act 1958, ss 65, 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 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 9 December 2015. The delegate decided to refuse to grant the visas on 18 August 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of sub-classes: 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 (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 1 February 2018 to give evidence and present arguments. The Tribunal Hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 sub-classes with the exception of sub-class 580;  and

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Subclass 580

1. At Hearing, the applicant was informed that the Subclass 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 Subclass 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 Subclass 580 visa.

2. The applicant confirmed that Form 157G was not used and a Subclass 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.

3. 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 Subclass 580.

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

   Genuine Temporary Entrant

5. 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)     …

6. 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.

7. 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.

8. 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.

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

   Background

10. At Hearing, the applicant confirmed that:

    a.He first arrived in Australia on a 573 student visa in September 2007;.

    b.He came to Australia after completing a Bachelor of Arts degree in India in 2003;

    c.He and his wife married in India in 2012 and their child was born in 2015 in Australia.

    Study History

11. Whilst he arrived in Australia under a sub-class 573 (Higher Education) visa, the applicant confirmed to the Tribunal that he has never studied at this level despite having been in Australia in excess of 10 years. His explanation to the Tribunal was that he had acted on the advice of his migration agent at the time, who had cautioned him regarding the greater expenses to be incurred by studying at bachelor degree level.

12. The Tribunal notes that it is the responsibility of a holder of a Student visa to continue to satisfy all visa criteria during the term of the visa. it is of concern to the Tribunal that the applicant was already a university graduate before ever coming to Australia and upon arrival, dropped his level of study, in breach of condition 8516 to a level below his foreign university achievement. However the Tribunal can accept that he was not aware of this technical breach at the time.

    s.359AA

13. 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 was not a genuine student and did not meet cl.572.223.. 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.

14. 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.

15. 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.

16. The information from PRISMS shows the applicant enrolled in the following courses during the more than 10 years he has been in Australia:

    a.English for Vocational Education  (completed December 2007)

    b.Advanced Diploma of Hospitality Management (completed May 2010)

    c.Diploma of Hospitality Management (cancelled due to non-commencement of studies)

    d.Bachelor of Business (Hospitality Management) (cancelled March 2010 due to non-commencement of studies)

    e.Certificate IV in Frontline Management (cancelled August 2010 due to non-commencement of studies; completed February 2011)

    f.Advanced Diploma of Management (completed March 2011)

    g.Certificate III in Automotive Mechanical Technology (Light Vehicle) (completed September 2012)

    h.Diploma of Automotive Management (cancelled due to non-commencement of studies);

    i.Diploma in Automotive Management (cancelled September 2012);

    j.Certificate III in Automotive Mechanical Technology (completed March 2013)

    k.Certificate III in Automotive Electrical Technology (cancelled October 2013)

    l.Certificate IV in Automotive Management (completed December 2014)

    m.Certificate IV in Automotive Technology (cancelled due change of enrolment)

    n.Certificate IV in Automotive Mechanical Diagnosis (cancelled October 2014 due to non-commencement of studies; completed in 2016);

    o.Diploma of Automotive Technology (cancelled due to non-commencement of studies).

17. The applicant was asked to explain his unsatisfactory course progress, his lack of academic progression and the apparent overlap of subject matter in his many automotive courses. The applicant’s oral evidence was that he wanted to thoroughly understand the automotive sector in all its facets, before embarking on his planned overseas career, hence his slow academic progress and enrolment in numerous automotive courses. The Tribunal is unconvinced by this explanation; it is not reasonable or possible for the applicant to expect to study every facet of a trade or discipline before venturing forth to seek employment or establish a business in that sector.

18. When asked by the Tribunal to explain the two “study gaps” identified by the delegate’s decision, the applicant responded that the first study gap between August 2013 to June 2014 was due to “the College having no teachers”.  In his GTE Statement of Purpose provided to the Department (DIBP File f.57), The applicant explains the reason for this study gap, “because the college is not providing classes timely(sic).” The Tribunal accepts this explanation for part of this study gap, however it is not persuaded that a genuine student intending to progress academically would accept this unsatisfactory situation for an extended period of 10 months.  Consequently the Tribunal gives no weight to this evidence.

19. The second study gap noted in the delegate’s decision extended for a year, between December 2014 to December 2015. The applicant’s explanation was that this was due to his wife having a difficult pregnancy, causing him mental stress and financial difficulties. When asked by the Tribunal why he had not elected to defer his studies during this stressful time and even perhaps return to India with his wife and newborn child where he could rely on the support of family, the applicant’s response was that the topic had been discussed between he and his wife but not acted upon; instead, his mother came from India to lend support for several months.

20. The applicant offered no evidence that he had sought the advice of his college on this critical issue of his wife’s pregnancy and ensuing complications. At a minimum the Tribunal would expect a university graduate with professional qualifications and being the “bread-winner” in the family might seek such advice. Being in a foreign country to study is a continuing and expensive obligation.

21. The Tribunal reminded the applicant that the primary responsibility of a person granted a Student visa in Australia is to remain enrolled in a registered course and to progress academically. When asked why he had not considered resuming his studies after his mother’s arrival in Australia, the applicant could not offer a clear explanation other than he had not done so.

22. The Tribunal finds the applicant’s evidence concerning his study history and the study gaps to be unconvincing and lacking credibility. It therefore gives little weight to this evidence.

23. At Hearing the applicant tendered a current COE to the Tribunal – a Diploma of Leadership and Management for the period 5 March 2018 to 3 March 2019. The applicant confirmed that he had obtained the COE on 31 January 2018, the day before the Hearing.  The Tribunal gives weight to the timing of the applicant’s obtaining the COE as it would appear that the applicant obtained the COE not out of a genuine desire to enrol in the subject in further pursuit of his stated future career plan, but in anticipation of the Hearing.

24. After completing a Certificate IV in Automotive Mechanical Diagnosis in 2016, it would appear that the applicant had not enrolled in any course of study for all of 2017 and only enrolled in the Diploma of Leadership and Management in anticipation of the Hearing.  This would appear to be the third substantial study gap for the applicant in his 10 year stay in Australia.

25. The applicant entreated the Tribunal to accept that he did not continue studying because the student visa application was refused and the applicant did not know if a student visa would ultimately be granted.  The proposition here is that if a choice is made to continue studying, the effort and fees that go into that might ultimately not yield a qualification. By electing not to study, when there was no legal bar to studying, the applicant’s conduct suggests to the Tribunal that the applicant might be more interested in the substantive student visa, than in the study itself.

26. The Tribunal finds the applicant’s study history, which is punctuated by three substantial study gaps, is not indicative of a genuine student intending to progress academically and with a genuine intention to reside temporarily in Australia.

    Applicant’s Future plan

27. At Hearing the applicant’s gave evidence that his career plan is to return to India to open a tyre retail/service store in India, which is consistent with the applicant’s GTE Statement submitted to the Department.  When asked by the Tribunal what value should then be given to the Diploma and Advanced Diploma of Hospitality Management that he had completed in his first few years in Australia, the applicant was unable to proffer a satisfactory reason for any value to be attributed to these hospitality courses.

28. The Tribunal observed that by the end of 2016, the applicant had completed Certificate IV in Frontline Management and three automotive subjects (giving no value to the hospitality courses completed earlier). It would appear that by the end of 2016 the applicant had acquired enough skills to leave Australia to implement his stated business plan. The Tribunal then asked the applicant why he and his family had not left Australia at that point. The applicant’s response referred generally to his needing to learn all facets of the automotive trade before he felt confident enough to leave Australia and implement his future plan.  The Tribunal finds this explanation lacks credibility and therefore gives little weight to this evidence.

29. At Hearing the applicant was asked to elaborate on the details of his overseas career plan.  He stated that he came from a small town and therefore the prospects of setting up a tyre retail/servicing store were good; he would seek funds from his father and probably seek a bank loan to set up the venture.  Beyond these general statements the applicant was unable to provide further details on the set-up costs or business plans of this venture. The Tribunal is not persuaded that the applicant’s stated future plan of a tyre retail/servicing store is a well-developed or genuinely held career or business goal.

Value of Course to the Applicant’s Future

1. The Tribunal questioned the applicant on the value of his latest course - Diploma of Leadership and Management – to his stated future plan. It was put to him that this was a generic leadership and management course offering little value to someone who already has a Bachelor degree and who has completed a Certificate IV in Frontline Management and an Advanced Diploma of Management. The Tribunal was not persuaded by the applicant’s response that by enrolling in this course he would gain further practical knowledge in business leadership and management.

2. The Tribunal considers that the applicant’s degree level education from India, when combined with the skills and knowledge acquired from technical automotive training and the Diploma of Automotive Management, provide the applicant with sufficient skills to handle the technical, commercial and managerial aspects of an automotive business, and give him the ability to analyse the industry and its customer base.

3. Given the timing of his latest enrolment and the nature of the course, the Tribunal does not accept this latest enrolment as evidence of a genuine student intending to progress academically.

4. The Tribunal give weight to the lack of apparent value of the latest course to the applicant’s future which suggests to the Tribunal that he does not genuinely intend to stay in Australia temporarily and is using the student visa program as a means of maintaining residence in Australia.

   Circumstances in Home Country and Potential Circumstances in Australia

1. The applicant gave evidence that:

   a.he has held several part-time jobs during his time in Australia; he has worked at a car parts manufacturer for 2-3 years as a registered employee; he has also worked as a cleaner and car wash attendant on a casual basis – in both roles he was paid in cash and could not produce evidence of the hours worked or rate of pay;

   b.he resides with his wife and child in Australia; he also has two cousins in Melbourne, both of whom are Australian citizens;

   c.he has two other brothers – one resides in the US, the other lives with his parents in India. 

   d.his wife also has her family in India; both their families in India were living in comfortable circumstances;

   e.his preferred plan would be to send his wife and child back to India first, whilst he remains in Australia to gain work experience.

2. The Tribunal accepts that the applicant has some familial incentives to return to India, however by having his wife and child with him in Australia (indeed his child was born in Victoria), the Tribunal finds that these oversea incentives are unlikely to be strong enough to persuade the applicant to leave Australia; indeed if they had been strong enough, they would have persuaded the applicant to return to India with his family at the end of 2016 at the latest when he attained his latest automotive qualification.

3. The applicant confirmed that there was no adverse evidence pertaining to the following limbs of 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

4. In the 10 years that he has been in Australia the applicant has had three study gap periods totalling almost three years; further, his automotive and management studies reveal a great deal of repetition and overlap of subject matter between the various courses.

   Findings

5. 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. 

6. His own conduct in not pursuing any studies in 2017 and then enrolling in a Diploma of Leadership and Management the day before his Hearing, suggests that he will not yield to the incentives he has to leave Australia, including the presence of his parents and his wife’s parents in India; instead his conduct suggests that he intends to stay on in Australia.

7. The above factors cumulatively indicate the applicant is not a genuine student. Rather, he  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.

8. Overall, given lack of academic progress, his study history, his potential circumstances in Australia, his immigration history and the lack of value of the courses to his 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.

9. 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).

10. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 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 Subclass 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.

11. As the first named applicant does not meet the relevant criteria, it follows that the second named applicants also do not meet the relevant criteria.

DECISION

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

Stephen Conwell
Member