Singh (Migration)

[2016] AATA 4896

Singh (Migration) [2016] AATA 4896 (1 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gaganpreet Singh

CASE NUMBER:  1419197

DIBP REFERENCE(S):  BCC2014/2904132

MEMBER:Alison Mercer

DATE:1 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 01 April 2016 at 1:11pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Genuine Temporary Entrant Criteria – Change to Vocational studies within 5 months of arrival – Misguided by visa agent – Poor academic performance due to personal issues – No clear career plan – Credibility issues – Signed statement with untrue assertions – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth) Schedule 1 Item 1222 Schedule 2 cls 572.222, 572.223 Schedule 8 condition 8516

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. Where used in this decision:

   ·     COE refers to Certificate of Enrolment in a course of study;

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

   ·     VET refers to Vocational Education and Training;

   ·     A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

   ·     The Department refers to the Department of Immigration and Border Protection;

   ·     Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   ·     IELTS refers to the International English Language Testing System.

3. The applicant applied to the Department of Immigration for the visa on 3 November 2014. The delegate decided to refuse to grant the visa on 6 November 2014. 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 visas because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations. The delegate found that the applicant did not genuinely intend to stay in Australia temporarily, having regard to his circumstances, immigration history and other relevant matters.  In particular, the delegate noted that:

   ·the applicant had come to Australia as part of the streamlined visa processing  arrangement (SVP) on a subclass 573 (Higher Education) student visa in order to undertake a Masters in IT from 18 March 2013 to 31 March 2015 but his PRISMS records indicated that he ceased his studies in the Masters course on 3 August 2013 and enrolled in a Certificate III in Hospitality on 4 November 2013 without notifying the Department;

   ·the applicant was now proposing to undertake various vocational level courses, including a Certificate III and IV in Commercial Cooking, a Certificate IV in Business Administration, a Diploma of Business Administration and an Advanced Diploma of Business;

   ·the applicant’s change within 5 months of his arrival in Australia to a lower level, shorter course indicated that he was not a genuine temporary entrant, and also indicated that he had breached condition 8516 of his subclass 573 visa; and

   ·he had not provided any plausible explanation from changing  areas of study from IT to Commercial Cookery.

5. The Tribunal received a review application from the applicant on 24 November 2014, which was accompanied by a copy of the delegate’s decision.

6. On 22 September 2015, the Tribunal wrote to the applicant to invite him to a hearing on 22 October 2015.  He was requested to provide evidence of his current enrolment, his previous studies in Australia and an explanation of any gaps in study at least 1 week prior to the hearing.

7. On 20 October 2015, the Tribunal received a submission from the applicant, in which he asserted (in summary) that his parents died when he was young and he had been brought up by his uncle, who had rigid ideas and expectations of the applicant. The applicant stated that he was obliged to study B Tech in India even though he had no interest in this field and struggled to understand the underlying concepts.  His uncle also influenced the applicant’s choice of course in Australia; the Masters in IT.  The applicant said that notwithstanding the course not being of his choosing, he was excited to study in Australia but this turned to fear and stress when he was unable to pass the Masters in IT course. The applicant stated that his desire was always to enter the field of management and hospitality but he learned that it was hard to change courses in Australia when his visa application to undertake these courses was refused.  He therefore requested the Tribunal give him an opportunity to complete his studies in his chosen field so he could move from the practical to the theoretical and onto the management issues and acquire a thorough knowledge of the intricacies of commercial cookery, people management, customer service and financial management.

8. Provided with this submission was a CoE for the applicant for a Diploma of Management at Technical Education Development Institute to run from 15 November 2014 to 14 May 2015.  The CoE states that it has been cancelled.

9. The applicant appeared before the Tribunal on 22 October 2015 to give evidence and present arguments. The Tribunal was assisted by the services of an interpreter in the Punjabi and English languages.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Having regard to the applicant’s current proposed course of study, 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.572.223. 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)     …

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. At the hearing, the applicant told the Tribunal that (in summary) he was 10 when his parents died in India and he had lived with his uncle since that time.  His uncle was a government teacher and had 3 adult children, one of whom was in Canada.  The applicant said that his uncle was keen on all of the children becoming professionally qualified.  His uncle’s children did Bachelor and Masters degree courses so he wanted the applicant to do the same.  The applicant completed a Bachelor of IT in India but was not really interested in this field.  He was interested in business.

16. The applicant confirmed that he came to Australia under the streamlined visa processing system to undertake a Masters of IT degree.  He said that he was misguided by an agent who advised him that he could change courses to a lower level course once he was in Australia and there would be no problem with his student visa.  This is why he changed to the Certificate III course in late 2013.  When asked why he applied for his initial student visa on the basis that he wanted to undertake a Masters degree, when his evidence was now that his intention was to study Business at vocational level, the applicant said that his education agent in India told him he would not be successful in getting a student visa unless he said that he was going to undertake a Masters degree because he had already completed a Bachelor degree in India in August 2012.  Between completing that degree and coming to Australia, he did an English course and applied for the subclass 573 visa. 

17. The applicant said that at the time he ceased the Masters course and enrolled in the Certificate III, he was very depressed anxious because his brother in India had been put in prison due to a false allegation that he killed a fellow student in India. The applicant said that his brother is now out of jail but must regularly attend court hearings.  The police also took his younger sister into custody as part of the investigations but she was released due to no evidence being found against her.  This happened around August 2013, near the end of his first semester of the Masters course.  He did not pass that semester as he did not complete 2 subjects due to the personal problems he was having.  When asked if he spoke to his education provider about the difficulties he was experiencing, the applicant said that he had not.  Nor had he spoken with a doctor or counsellor.  He said that his uncle was reassuring him that everything would be OK and not to worry about the situation in India.  However, his uncle also warned him not to return home because he might get caught up in the criminal case.  When asked why he would be likely to be involved in the investigation when he had been in Australia when the alleged crime occurred, the applicant said that the police took his aunt and uncle into custody and tortured them before releasing them, and this could have happened to him.  If he were the subject of criminal charges, he would not be able to travel outside India.  Due to these problems, he did not feel able to continue the Masters degree but felt that he could not return to India. 

18. In response to the Tribunal’s query, the applicant said that he returned to India in January 2014, by which time his sister had been released from police custody although his brother was still in jail.  His brother was released from jail in April 2014 but is subject to regular reporting to court.  The applicant said that the case was one of mistaken identity and that it had been reported in the Indian newspapers.

19. The applicant told the Tribunal that he enrolled in the Certificate III in Commercial Cookery in November 2013 on the encouragement of his agent, on the basis that it would be a less stressful course and would cost less, which would lessen the financial burden on his uncle who had to pay legal fees in relation to his brother’s criminal case.  When asked if he sought any advice about whether he could change course levels, such as from the Department, the applicant said he didn’t talk to anyone because he was depressed.

20. In response to the Tribunal’s query, the applicant said that until November 2013, he had never considered studying Commercial Cookery, and that he enrolled in this on the advice of his education agent.  The Tribunal noted that the applicant’s written statement of 20 October 2015 contradicts this, as he states in this that it was always his desire to enter the field of management and hospitality.  The applicant said that his migration agent Mr Bajwa wrote this statement, but it was not true that he always wanted to enter the field of management and hospitality.  The Tribunal noted that there was no record of the applicant being represented by a migration agent called Mr Bajwa.  The applicant confirmed that the email address provided for correspondence to the Tribunal was his own.  He said that he paid Mr Bajwa to lodge his review application online but was not sure what he did.  He said that he had email correspondence between himself and Mr Bajwa about this. Mr Bajwa had said he would attend the Tribunal hearing with the applicant but then wanted more money than the original $3,000 the applicant paid him. The applicant told him he could not afford to pay any more.  Mr Bajwa nevertheless prepared the statement dated 20 October 2015 and got the applicant to sign it.  In response to the Tribunal’s query, the applicant said that he read the statement, knew that parts of it were not true but signed it anyway and lodged it with the Tribunal.  When asked why he would do this, he said that he thought that he would be able to tell the true story at the hearing.  The Tribunal observed that it reflected poorly on his credibility generally that he would deliberately lodge a statement he knew to contain false information shortly before the hearing, and then come to the hearing and give conflicting evidence.  The applicant reiterated that he thought that his chance to tell the proper story was at the hearing, and he went along with the statement because his agent prepared it.  The story about him changing courses after his brother’s criminal case is what actually happened.

21. The applicant said that his CoEs for the Certificate III and IV in Commercial Cookery were cancelled after his application for a subclass 572 visa was rejected.  At that time, he had completed approximately 22 subjects.  Since the subclass 572 visa application in November 2014, Mr Bajwa advised the applicant to enrol in a Diploma of Management but the course provider would not let him continue this course as they told him that he did not have study rights.  The education provider then advised the applicant that he could study with them but he did not commence studies there as he did not want to breach his visa conditions.  When asked if he had checked what study rights (if any) he had with anyone, the applicant said Mr Bajwa told him that he held a Bridging Visa C and therefore could not work, study or travel outside Australia.  When he checked with the Department, they gave the same advice.

22. In July 2014, he was told by the Technical Education Development Institute (TEDI) that he could not enrol in the Advanced Diploma of Management as he had not completed the Diploma of Management.  He understood that he was not permitted to study and did not want to pay fees for a course that he could not undertake due to his visa issues.

23. The applicant said that he received a notice of intention to consider cancellation of his subclass 573 visa after he ceased his Masters course and enrolled in the Certificates III and IV of Commercial Cookery.  At that time, his agent Mr Bajwa told him that they would lodge a subclass 572 visa on the basis of his enrolment in a Diploma of Management at TEDI.  In response to the Tribunal’s query, the applicant said that he had not studied since February 2015 and was not enrolled in any course at present.  The Tribunal noted that cl.572.222 requires the applicant to have a CoE at the time of its decision, and he appeared not to meet this, regardless of the Tribunal’s conclusions as to whether he was a genuine temporary entrant.  The applicant said that he had a CoE from TEDI for the Diploma of Management at the time he lodged the review application but did not any more.  He said that TEDI have told him that he could complete the Diploma and Advanced Diploma in Management in about 18 months.  The applicant said that his uncle has been financially supporting him since February 2015 as he does not have permission to work. 

24. The applicant told the Tribunal that if his review application was successful, he wanted to continue his Commercial Cookery Certificate III, given he had already completed 22 units of these.  Then he could complete the Certificate IV and look for better options.  He said that he wanted to run a restaurant in India, as then he could support his younger siblings from the income and they could work in the business.  The applicant said that his uncle would support him to continue his Commercial Cookery studies, or IT, but it had been too long since he ceased his IT study and the Masters course was very expensive.  He wanted to complete the Certificate III and IV then do a Diploma of Hospitality Management.  He stated that he only enrolled in the Diploma of Management on the advice of his agent, who misguided him.  The applicant said that at the time he enrolled in the Diploma of Management, he actually wanted to enrol in a Diploma of Hospitality Management at AVETA but his agent overrode him.  The Tribunal indicated that it may not accept that he simply followed the advice of his agent on this issue, and might conclude that he changed enrolments between vocational courses simply to prolong his residence in Australia.  The applicant denied this.

25. When asked why he considered that Commercial Cookery and Hospitality would be a more lucrative field in India than IT, the applicant said that running his own restaurant would be a good business, and that even Masters in IT graduates were jobless in India.

26. The applicant said that he is the only member of his family in Australia.  He has not made any applications for any other kind of visa except for the student visas. He stated that if it were his intention to prolong his residence in Australia, he could have continued with the Masters degree.  The Tribunal noted that this course (on his own evidence) was significantly more expensive than the vocational courses he had subsequently enrolled in. The applicant reiterated that he just wanted to finish the Hospitality package of courses and return to India.

    The applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future

27. The Tribunal has considered the applicant’s situation in relation to his home country, India. The Tribunal acknowledges that the applicant’s uncle, 2 first cousins and 2 siblings remain living there, and that he has no immediate family in Australia.  It accepts that the applicant’s parents died when he was a child and that he and his siblings have been brought up by their uncle.   

28. While the Tribunal considers that the fact that the applicant’s 2 siblings, uncle and 2 cousins remain in India provides a significant tie for the applicant to his home country, the Tribunal gives weight to the fact that the applicant has returned to India once only since arriving in early 2013, that visit being in early 2014. In the Tribunal’s view, this undermines a conclusion that his family ties are a strong reason for him to return to India at the conclusion of any further study in Australia.

1. The Tribunal has considered the applicant’s explanation that he was told by his uncle not to return before then due to a false criminal case brought against his older brother which resulted in his brother being jailed and his sister and aunt and uncle being detained and mistreated before they were all released from custody in 2014. The Tribunal rejects this explanation as implausible.  It notes that the applicant did not provide any evidence (such as a newspaper report) to support the existence of a criminal case involving his brother in India, but even if such a case existed, the Tribunal rejects as implausible that the police in India would have detained family members, particularly the applicant who (on his own evidence) was in Australia when the alleged criminal incident involving his brother took place.  It does not accept that this was the reason for the applicant not returning to India before early 2014, and notes that although on his evidence all family members were released from custody by

   
   

   April 2014, he has not returned to India since then.

2. The Tribunal has concerns that the relatively less favourable economic situation in India has provided, and would continue to provide, an incentive for the applicant to attempt to maintain residence in Australia for an extended period in order to work.  However, the Tribunal notes the applicant’s evidence at hearing that he has not worked in Australia since the cancellation of his subclass 573 visa in January 2015 as he understood that he did not have work rights, and that his uncle has supported him financially since that time and is in professional employment in India. Accordingly, the Tribunal does not consider the economic situation in India in and of itself to be a significant disincentive for the applicant to return there. 

3. The Tribunal has significant concerns about the value of the previously undertaken and proposed courses to the applicant’s future. The applicant maintained that, despite having a Bachelor level IT qualification in India, it would enhance his career prospects if he now completed a Certificate III and IV in Hospitality (Commercial Cookery) and an Advanced Diploma in Hospitality Management. This evidence was given in the context, acknowledged by the applicant, that he originally came to undertake a Masters of IT course, discontinued this course of study within a matter of months, then enrolled in a package of courses in Commercial Cookery/Hospitality which he did not complete, then enrolled in a package of Business courses, which he also did not complete. He now proposes to re-enrol in a package of Commercial Cookery/Hospitality courses.  In his written statement to the Tribunal provided on 20 October 2015, prior to the hearing, he maintained that he had been pressured into enrolling in the Masters of IT course by his uncle and misadvised by an agent that he could change to a VET course Hospitality Management, which he stated was always his aim.  At the hearing, he denied that his aim was always to do Hospitality Management, and stated that his agent had written the statement he provided to the Tribunal and that he read it and signed it although he knew parts of it were not true. He also said that this agent advised him to enrol in Business courses as well, for the purposes of the present visa application.  At the conclusion of the hearing, the applicant maintained that studying a package of Commercial Cookery/Hospitality Management courses would enhance his career prospects in India as he wanted to run a restaurant to support his siblings and he had completed 22 subjects of Commercial Cookery previously before his visa application was rejected. As discussed with the applicant at hearing, the Tribunal considers that it does the applicant no credit at all that he would sign a statement drafted by his agent which he knew to contain untrue assertions.  Having considered the applicant’s explanations, the Tribunal finds them incoherent and vague.  The applicant failed to articulate in any plausible way why now completing a package of Commercial Cookery/Hospitality courses would assist him in his career on his return to India.  While he stated that he wanted to open a restaurant, he did not provide any detailed explanation of his plans.  The Tribunal considers that the overwhelming impression given by the applicant’s course choices and evidence was that he was willing to change courses of study in Australia simply to prolong his stay here, without any realistic appraisal as to their value to his future.

4. Having considered the applicant’s evidence on this issue, the Tribunal is not satisfied that the course that the applicant proposes to undertake would be of any significant, realistic benefit to him in India. It further considers that his study history to date indicates a swift downgrading of the relatively expensive tertiary level course, enrolment in which was the basis of his initial visa grant, to a pattern of enrolment in seemingly unrelated, generalist vocational level courses that had little to do with any coherent career or study plan.  The Tribunal accepts that many students may legitimately change their field of study as they work out what they truly wish to pursue, but it considers that this is typical of young students going straight from secondary education into tertiary education. In contrast, the applicant was 22 at the relevant time that he began undertaking study in Australia and had already completed a Bachelor degree in India. He had had time to assess what course(s) would best serve his career plans. While he may have legitimately decided that further study in the field of IT was not what he wanted to pursue, his course choices since then appear to have been largely dictated by what he was told by a former agent would entitle him to a further visa and not be as expensive as a tertiary course.

5. This strengthens the Tribunal’s view that the applicant is utilising the student visa program to remain in Australia indefinitely, in contravention of the purpose of the student visa program.

   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;

6. The Tribunal does not have any information in relation to the applicant’s visa applications to other countries (if any). 

7. In relation to his Australian immigration history, the Tribunal finds that the applicant arrived in Australia in February 2013 as the holder of a subclass 573 (Higher Education Sector) visa.  Based on the evidence before it, the Tribunal finds that since August 2013, when he discontinued his Masters of IT course, the applicant has been enrolled in the following courses:

   ·Certificate III in Hospitality (Commercial Cookery);

   ·Certificate IV of Business Administration;

   ·Certificate III in Hospitality (Commercial Cookery);

   ·Diploma of Hospitality;

   ·Diploma of Management;

   ·Certificate IV in Hospitality (Commercial Cookery);

   ·Certificate IV in Business Administration;

   ·Diploma of Business Administration; and

   ·Advanced Diploma of Business.

8. The Tribunal further finds that the applicant completed 22 subjects towards the Certificate III and/or IV of Commercial Cookery (and approximately 1 to 2 semesters of the Masters of IT course).  Although he subsequently enrolled in a package of courses in Business/Business Administration and another package of courses in Commercial Cookery/Hospitality, it appears that he did not complete any of these courses and he conceded this at hearing.  At the hearing, the applicant acknowledged that he had not studied since February 2015, when his subclass 573 visa was cancelled, and was not currently enrolled.  The Tribunal considers this record of academic progress to be poor, given the applicant has been in Australia for the purpose of studying for over 3 years.

9. For the reasons set out in paragraphs 28 and 29 above, the Tribunal finds that the applicant has essentially been residing mainly in Australia from early 2013 to date (with an approximately 1 month return to India in early 2014).  This causes the Tribunal concern about whether he genuinely intends to return to India at the completion of any further course.

10. The Tribunal finds that the applicant has downgraded the level of course in which hye ws enrolled, has undertaken and/or enrolled in a series of low level, short, inexpensive courses for over 3 years and has not in fact studied for over a year. The applicant is seeking a further student visa to continue to study further low level short inexpensive courses for a further period. If the visa were granted, the Tribunal estimates that the applicant would been in Australia for 5 years to pursue low level inexpensive courses. The Tribunal considered the length of time spent in Australia studying a series of various inexpensive short courses was indicative of the applicant seeking to maintain ongoing residence.

    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

11. The Tribunal has considered the totality of the applicant’s circumstances and considers that his time in Australia has been characterised by a lack of academic progress towards a realistic goal. It does not accept his explanation for his proposed further study in Australia as plausible or credible in relation to his future career prospects. 

12. The Tribunal has taken into account that the applicant appears to have experienced some family difficulties during the time that he has been in Australia, but it is required to consider whether, at the time of the Tribunal’s decision, he is a genuine applicant for temporary entry and stay in Australia as a student.

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 Tribunal finds that the applicant does not meet cl.572.223(1)(a).

14. The Tribunal further finds, on the applicant’s evidence that he is not currently enrolled in any course and did not provide a letter of offer for enrolment, that he does not meet cl.572.222.

15. The Tribunal has found the applicant does not meet essential requirements 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

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

    Alison Mercer
    Member