Suba Singh (Migration)

[2021] AATA 3804

Suba Singh (Migration) [2021] AATA 3804 (8 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suba Singh

CASE NUMBER:  2013435

DIBP REFERENCE(S):  BCC2018/1207432

MEMBER:Damian Creedon

DATE AND TIME OF

ORAL DECISION AND REASONS:         8 July 2021 at 9:31 am (WA time)

DATE OF WRITTEN RECORD:                24 September 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 24 September 2021 at 7:11am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– Federal Circuit Court remittal – applicant has demonstrated a steady academic progress – change in study and career pathway is reasonable –genuine temporary entrant for study – a credible witness – personal ties to home country – applicant is currently enrolled – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 2, cl 500.212

CASES
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 May 2018 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

Background

1. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.

2. The applicant applied to the Tribunal for a review of the delegate’s decision.

3. The Tribunal affirmed the delegate’s decision by an oral decision made on 28 February 2020 (First Tribunal Decision). 

4. The applicant appealed the First Tribunal Decision to the Federal Circuit Court (FCCA) by an application filed on 2 April 2020.

5. On 24 August 2020 the FCCA made orders that the applicant’s application be remitted the Tribunal for reconsideration.

Reconsideration

1. At the hearing on 8 July 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant satisfies cl.500.212(a).

2. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

Does the applicant intend genuinely to stay in Australia temporarily?

1. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, 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.

2. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

3. In Kumar v Minister for Immigration and Border Protection[1] the Full Court of the Federal Court held that the Direction requires that, in reaching the state of satisfaction required by cl 500.212(a), the decision maker should turn his or her attention to each factor during the decision-making process and consider whether and how that factor should be brought to bear in reaching that decision.[2]  The Court went on to note that:

   [The Direction] does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case.  Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.[3]

   [1] [2020] FCAFC 16 (24 February 2020).

   [2] Kumar, Para [82].

   [3] Kumar, Para [96].

Overview of evidence

1. The applicant is a 27-year-old Indian national who first arrived in Australia on 18 March 2014 as the holder of a Student (TU 573) visa.  The applicant was 19 years old when he first arrived onshore.

2. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

1. The Tribunal also had before it a number of documents provided by the applicant.  Save as required for the purposes of this decision it is unnecessary to list these documents in detail.  Relevant documents will be referred to as required.

2. According to the evidence submitted by the applicant, including his response to the Tribunal's s.359(2) invitation, he has successfully completed the following courses:

Course Name	Date Commenced	Date Completed
English for Academic Purposes	03/2014	08/2014
Certificate IV in Marketing	08/2015	02/2016
Certificate IV in Business Administration	04/2017	07/2017
Diploma of Leadership and Management	10/2017	09/2018
Advanced Diploma of Leadership and Management	10/2018	11/2020

1. The applicant’s evidence is that he is presently enrolled in and studying a Graduate Certificate in Management (Learning) (02/2021 – 08/2021) and holds a future enrolment in a Graduate Diploma of Management (Learning) (08/2021 – 08/2022).

2. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

3. The applicant was assisted in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Analysis and findings

1. The Tribunal found the applicant to be a credible and truthful witness who, where possible, supported his oral statements with documentary evidence.  The Tribunal found the applicant’s oral evidence to be consistent throughout and in giving his evidence he did not convey an impression of concoction or recent invention.

2. The Tribunal discussed with the applicant his motive for undertaking study in Australia and his history as a student here.  The applicant stated to the effect that after finishing his secondary schooling in India his parents made the decision that he would come and study in Australia.  He stated that he was 19 years of age when he arrived onshore and that he had never previously travelled outside of India.   It was submitted on behalf of the applicant that:

   [He] comes from a small village called Goraya in the Jalandhar district of state Punjab, India. His family is not very well educated and wanted him to pursue foreign education to improve his career and life prospects back home. They wanted him to fulfil the dreams that they could not achieve themselves and tried to guide him the best they could.

3. The applicant stated that, in coming to study in Australia, he had hoped to obtain qualifications to enable him to work in business and Information Systems in India.  In order to do so the applicant enrolled in a study pathway culminating in a Bachelor of Business (Information Systems).  He stated that, had matters gone as planned, he anticipated finishing the proposed study pathway at the end of 2017.  He stated, however, that although he was able to successfully complete his initial English course, he was unable to successfully complete study at the Certificate level.  When pressed he stated to the effect that after he commenced his studies in Australia, he found that he was unable to adapt to the teaching methods he found here or to meet the academic standards expected. 

4. The applicant stated that, despite attempting the course, he was forced to withdraw from the Certificate IV in Business Administration and, consequently, his bachelor’s pathway.  It was submitted on behalf of the applicant that:

   His failure to complete this resulted in the cancellation of three related Confirmation of Enrolehrjments (CoE’s) as it was a packaged course. When this happened, he went into panic mode and did not know what to do. He had immense pressure from home because his family had put all their hopes into him. He felt he had failed himself and his family which put him under immense stress.

   He did not wish to tell his parents of his struggles so he sought advice from migration and education agents he thought he could trust. Unfortunately, they saw him only as a money source and did not provide genuine advice. They did not care about his career progression or education, they simply sold him courses that would be most beneficial to them in terms of commission.

5. The applicant stated that he accepted the advice of his agent and, after again attempting study, he completed a Certificate IV in Marketing in February 2016.  He then commenced studying a Diploma of Business but was again unable to successfully adapt to Australian study expectations at this level and did not complete the course.  The applicant stated that he lost motivation at this setback and “fell into a deep depressive spiral” and was “unable to study”.

6. On the advice of the same agent, that applicant again changed his study pathway to a Certificate III/IV in Commercial Cookery and Diploma in Hospitality Management as a vehicle to higher qualifications.  He stated, however, that the subject matter was so different from his study experience that he was unable to successfully pass the course requirements and his CoEs were cancelled.  It was submitted on the applicant’s behalf that:

   These further cancellations crushed the applicant’s mental wellbeing and crippled his ability to study altogether. His mental health deteriorated further because he had failed once again. He reached a stage where he just quit everything and went back home to India in December 2016. He told his family what had happened and the struggles he had to face in Australia. Although they were mad at his lack of progress, they were extremely concerned about his wellbeing and just wanted him to be happy.

   They told him they forgave him for his mistakes and encouraged him to get back on his feet and finish off what he had set to complete. They told him they were with him and wanted him to do well. They motivated him and this motivation pushed him to go back to Australia and recommence his studies.

7. On his return to Australia in January 2017 the applicant recommenced study in a business pathway, this time successfully completing a Certificate IV in Business Administration in July 2017.[4]

   [4] The applicant provided the Tribunal with a copy of his certificate of completion.

8. The applicant was enrolled to commence a Diploma of Business from the Australian College of Management & Technology, however the college shut down and instead he enrolled in a twelve-month Diploma of Leadership and Management at Queensland International Business Academy (QIBA) which he successfully completed in September 2018.[5]

   [5] The applicant provided the Tribunal with a copy of his certificate of completion.

9. It was submitted on behalf of the applicant that, following this academic success:

   As he was still familiar with the QIBA staff, he sought advice from them regarding what further studies he should pursue. They told him the most appropriate course would be an Advanced Diploma of Leadership and Management as it was in direct continuation of his previous studies and would be better suited to his education level as any bachelor degree would be too hard for him. They referred him to Richmond School of Business (RSB) to complete this course because RSB had the same management as QIBA. He commenced this course on 08/10/2018 and successfully completed it on 08/11/2020.[6]

   [6] The applicant provided the Tribunal with a copy of his certificate of completion.

10. In respect of his current and future studies, the applicant stated that he was advised by the student support officers to complete his study pathway a Graduate Diploma of Management (Learning) and a Graduate Certificate of Management (Learning).  These courses to be completed in August 2021 and August 2022 respectively.  The applicant stated that his is successfully completing the required study for these courses and that he did not intend to undertake any further studies in Australia upon their completion. 

11. The Tribunal considers that the applicant has demonstrated a steady academic progress since visiting his family and settling into his new study pathway in January 2017.  The Tribunal places weight on this evidence in the applicant’s favour. 

12. In respect of his ties to his home country, the applicant’s evidence is that he was married in November 2019 and his wife is resident in India.[7] 

    [7] The applicant provided the Tribunal with a copy of his marriage certificate, confirming his marriage on 4 November 2019.

13. In respect of his economic ties to India, the applicant’s evidence[8] is that:

    a.he is the legal heir to a double storey residential property situated at: Village Goraya, Tehsil Phillaur, District Jalandhar, Punjab, India that is worth 36,37,500 INR (~AUD $65,000).

    b.he is the legal heir to agricultural land situated at: Village Goraya, Tehsil Phillaur, District Jalandhar, Punjab, India that is worth 20,18,750 INR (~AUD $36,000).

    c.he has access to cash, bank and other liquid assets of 8,62,315.93 INR (~AUD $15,500).

    d.he has access to movable and other assets of 11,75,800 INR (~AUD $21,000) in India.

    [8] The applicant provided the Tribunal with a report from Minkal Gupta & Associates, Chartered Accountants in Goraya, India.

14. Overall, the applicant’s evidence did not persuade the Tribunal that he has ties to Australia, either social or economic, sufficiently strong to act as an overwhelming incentive for him to remain in Australia at the conclusion of his studies.

15. In respect of his future career path, the applicant’s evidence is that his wife works as a Branch Coordinator at a company called Grey Matters English Academy located at S.D Manila Tower, Nawanshahr, Punjab.  The applicant has been offered a position as an Area Manager for this company at the conclusion of his study pathway in Australia.[9]

    [9] The applicant provided the Tribunal with a letter from “Grey Matters English Academy” dated 1 May 2021.

16. Overall, the Tribunal found the applicant’s evidence to be persuasive as regards his chosen career path.  The Tribunal is mindful, in assessing whether a study pathway will assist an applicant to obtain employment or improve employment prospects in their home India, that it must allow for reasonable changes to career or study pathways.  In all of the circumstances the Tribunal is persuaded that the applicant’s change in study and career pathway is reasonable in the circumstances that he found himself in since arriving onshore.  The Tribunal finds support for this conclusion in the applicant’s academic success since commencing his resetting his study pathway in January 2017.

17. There is no evidence before the Tribunal of any civil unrest or military service commitments in the applicant’s home India that would act as a clear incentive for the applicant to remain in Australia. Overall, the applicant’s immigration history does not raise concerns for the Tribunal. 

18. The Tribunal has had the benefit of speaking to the applicant which has enabled it to obtain more information regarding his circumstances and genuineness in the presentation of his evidence.  The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has previously completed the courses claimed in Australia, has said he will return home on completion of his studies, has strong family and (embryonic) business ties to his home India and all the other matters he has raised.

19. Overall, the Tribunal is persuaded that the student visa programme is not being used by the applicant to circumvent the intentions of the migration programme.  For the reasons outlined above the Tribunal accepts that the applicant is undertaking his current study or future study for the reasons he claims.

20. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. It follows that the applicant meets cl.500.212(a).

21. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

22. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

DECISION

1. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.212(a) of Schedule 2 to the Regulations.

Damian Creedon

Member