Singh (Migration)

[2017] AATA 2402

Singh (Migration) [2017] AATA 2402 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Hartejpal Singh

CASE NUMBER:  1618877

DIBP REFERENCE(S):  BCC2016/1874701

MEMBER:Lilly Mojsin

DATE:9 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 09 November 2017 at 12:14pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Inconsistent evidence – Intention to open business in Australia – Vague Information about subjects – Not a genuine temporary entrant

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 572.223, cl.273.223

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 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 to the Department of Immigration for the visa on 28 May 2016. The delegate decided to refuse to grant the visa on 21 October 2016.

3. 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).

4. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.223(1)(a) of Schedule 2 to the Regulations.

5. The applicant appeared before the Tribunal on 12 October 2017, by telephone, to give evidence and present arguments. A previously scheduled hearing was adjourned as the applicant was not well and had a provided a medical report to the Tribunal.

6. The applicant was represented in relation to the review by his registered migration agent who did not attend the Tribunal hearing. The applicant was assisted by an interpreter.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The delegate found that the applicant was utilising the student visa program to maintain on-going residence in Australia and was not a genuine student.

8. The applicant provided to the Tribunal

   ·Letter from the Oceania College with an Offer of Enrolment to study a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management commencing on 15 August 2017 and ending on 11 August 2019.

   ·Medical report Dr Rajiv Singh

   ·Bank account

9. At the Tribunal hearing the applicant said that he is not studying because he does not have work rights. He said that he had a Confirmation of Enrolment [CoE] but then stated that he did not have a CoE. It was explained that if he did not have an Offer of Enrolment or CoE the Tribunal would have to refuse his application.

10. He explained that he was last a student in 2016.  He initially applied for a visa to study Information Technology.  Since arrival in Australia he studied a Diploma of Business but could not get the certificate. It was put that the letter of offer he produced to the Tribunal,  dated 11 July 2017, stated that he must pay $1000 on 11 August 2017 or the offer expired. He said that he has paid the money to the College. When asked why he does not have the confirmation if he paid the money he said that the Director said he can give an offer letter but he cannot grant the CoE as he does not have study rights. When asked again if he had paid the $1000 deposit, he said that he has not paid the amount. 

11. When asked what he intends to study he said it was business management and it is a very good course. It has many benefits for the future. When asked about his future career, he said that he wants to start his own business in Australia when he finishes the course. When asked when he intends to return to India, he said he will start a business in India and Australia and if not successful he will go to India. It is a transport business. He will start the business in different states. Once he completed his studies he will get permission from the government to start the business.

12. The applicant is single and does not have family in Australia. His family are in India, in the Punjab. His family comprise his father, mother and married sister. He does not work in Australia. His family and friends support him. His friends give him money and his family pay their family in India. When asked why he is not studying this course in India he said it is better to study this course in Australia as he gets more knowledge. After finishing year 12 in India he did not get a job, as one need to do more studies so he came to Australia.  He does not have military service commitments.

13. He came to Australia in 2014 and his been here for 3 years and he has only completed an English course. After that he had a passport issue. He is not studying at the moment. When asked what subjects he anticipates studying in the course that he will study how to manage a business. He wants to study and he already has paid his fees.

    REASONS AND FINDINGS

14. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

15. The issue in the present application 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)………… and

    (iv)any other relevant matter; and

    (b)     …

16. 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;

    ·…..; 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.

17. 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.

18. As discussed with the applicant at the Tribunal hearing the Tribunal has taken into account the following relevant factors as required by Direction 53

19. In regard to incentives for the applicant to return to India at the completion of his studies, the applicant is single, he has no family in Australia and his parents and sibling reside in India.

20. The applicant completed high school in India but did not work there, preferring to come to Australia to study an IT course. He also attempted to study a Diploma of Business but could not get the certificate. He has only completed an English course since his arrival in Australia in 2014.

21. The applicant claims that he does not work in Australia and is supported by his family and friends. He also claims that his parents pay money to his friend’s parents to payback monies he has received from his friends.

22. The applicant does not have any military commitments in India and the Tribunal is not satisfied that there is political and civil unrest in India that may induce the applicant to apply for a Student visa as means of obtaining entry to Australia for the purpose of remaining indefinitely.

23. The Tribunal does not have any information before it that the applicant has an adverse immigration history.

24. The Tribunal accepts that studying in Australia would give the applicant more knowledge than studying in India.

25. The Tribunal places great weight on the following:

    ·The applicant’s evidence in relation to payment of fees for his course. Initially he told the Tribunal he had paid the $1000 fee due on 11 August 2017 in order for the Offer of Enrolment not to lapse, then he said that he had not paid the money. 

    ·The applicant has only completed an English course since his arrival in Australia in 2014 as the holder of a student visa.  

    ·In relation to the value of the course to the applicant’s future,  the applicant provided vague information about the subjects in his course, stating he wanted to study how to manage a business. He claimed that he wanted to start a transport business but did not provide any information to the Tribunal as to how he intended to do so other than to say that he would he will get permission from the government to start the business.

    ·The applicant informed the Tribunal that he intended to open a business in Australia and India when he completed his studies.

26. As the applicant intends to open a business in Australia, the Tribunal is satisfied he does not intend to return to India on completion of his studies. The Tribunal find on balance, the genuine temporary entrant criterion is not satisfied by the applicant.

27. 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).

28. 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.

    DECISION

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

    Lilly Mojsin
    Member