SUKHVIR SINGH (Migration)

[2018] AATA 5193

SUKHVIR SINGH (Migration) [2018] AATA 5193 (18 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SUKHVIR SINGH

CASE NUMBER:  1710652

HOME AFFAIRS REFERENCE(S):           BCC2017/932795

MEMBER:Gabrielle Cullen

DATE:18 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 October 2018 at 12:57pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – academic progression – medical issues – non-payment of fees – unsatisfactory course progress – knowledge of proposed course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212

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 and Border Protection on 1 May 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The applicant arrived in Australia on 6 May 2014 on a subclass 573 visa valid to 15 March 2017. He has not departed since his arrival. The applicant applied for the visa on 9 March 2017.

4. Certificate of Enrolments attached to the applicant’s current application refer to the applicant studying an Advanced Diploma of Leadership and Management followed by a Bachelor of Accounting to 1 May 2020. Recent evidence from the applicant indicates he successfully completed the Advanced Diploma of Leadership and Management in August 2018. He submitted a further COE to the Tribunal to study a Bachelor of Accounting from 27 August 2018 to 13 August 2021.

5. The evidence at the time of this decision, from the applicant and the Department decision[1] indicates that he has the following course study history since his arrival and prior to his current application.

   ·He arrived in Australia to study a Diploma of Information Technology from 30 June 2014 followed by a Bachelor of Information Technology to 31 December 2016. Enrolment was cancelled in both courses on 14 November 2014. At hearing the applicant advised he failed 3 out of 4 subjects in the Diploma course as the study environment was drastically different to what he had experienced in India. He said he decided to change courses as he thought studying communications would be easier. He said he was depressed and his Doctor gave him a letter to defer study in the course for three months.

   ·He then became enrolled in a Diploma of Communications from 27 October 2014 to 12 June 2015 followed by a Bachelor of Media Arts and Production but enrolment was cancelled for unsatisfactory course progress in September 2015 and non-payment of fees in June 2015. He said at hearing that he decided to defer and change the course. He said he did not attend the course as he was sick and depressed as to his past study history. He said his Doctor advised him to change the course. He said he told the education provider and gave them a letter from the Doctor but there was no response and his enrolment was cancelled for unsatisfactory course progress. He said he decided to change to communications as he thought it would be easier. He said he could not pay his fees as his parents would not pay the fees as they were expecting him to complete his courses with distinctions and high distinctions.

   ·He then enrolled in a Diploma of Business Management from 10 August 2015 to 8 July 2016 followed by a Bachelor of Business from 11 July 2016 to 31 July 2018 but enrolment was cancelled in November 2015 for non-payment of fees and non-commencement of studies.

   ·From February 2016 to February 2017 he successfully completed a Diploma of Leadership and Management.

   [1] Attached to the Application for Review

6. The applicant provided a statement to the Department summarised as follows:

   ·He claims he was admitted to the D to D program at the University of Canberra and outlines the difficulties he faced in his study there. He claims he informed his Director of Study and academic coordinator of his difficulties but received no counselling.

   ·He claims he then went to QIBT and has completed the Diploma of Leadership and Management

   ·He wants to do accounting due to the great career opportunities and that accounting jobs are not just related to one industry. He claims he can both have a balanced lifestyle and good working conditions in the accounting area. He claims the skills he will learn from the accounting area will help him to attain jobs across various industries.

   ·He outlines the positives of studying accounting at UBSS and why he chose to study in Australia.

   ·He claims he is the eldest son and has the responsibility to assist his father after he completes his studies. He claims a Bachelor of Accounting from UBSS will help him to propel his career in the field of commerce. He notes that he will have better career opportunities after his study and he looks forward to being employed in the best commerce companies in the world. He claims his future plan is to obtain accreditation from the CPA in Australia.

7. The delegate decided to refuse to grant the visa on 1 May 2017. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned as to his poor study history and outlined this in some detail. The delegate was concerned that the applicant arrived in Australia on a subclass 573 visa but had not studied at this level and had breached conditions 8516 and 8202. He was concerned that despite this at no time did he contact the Department to advise of the change in circumstances.

8. On 18 May 2017 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.

9. On 31 July 2018 the Tribunal wrote to the applicant and invited him to attend a hearing on 27 August 2018. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

10. He provided  a letter to the Tribunal summarised as follows:

    ·He changed his course as he felt the Diploma of Information was tough and he changed to the Diploma of Communications. He notes that he was pressured by the load of his studies and it was a total change in environment in all respects, socially and at College between India and Australia. He claims he was depressed in his first semester in IT and he failed 3 out of 4 subjects.

    ·He could not pay his fees when studying the Diploma of Communications and his family did not want to support him. He claims he was very depressed at that time and he had to go to a Doctor for treatment. He claims he decided to defer his course due to treatment and then took admission in the Diploma of Leadership and Management which he completed in 2017.

    ·He claims the main aim of changing his course is so that his studies can help him set up his business and he can also help his father’s business.

    ·He claims he tried to contact a few education agents to obtain related studies to his previous studies but he was not guided properly and he was confused and had to change courses. He refers to now completing his Diploma of Leadership and Management, and then Advanced Diploma of Leadership and Management. He claims he is looking to start his Bachelor of Business which he will finish in May 2020.

    ·He claims he will return to India on completion of his studies, join his father’s business and help look after his parents and younger sister.

11. On 24 August 2018 he also attached a COE to study a Bachelor of Business (Accounting ) to 1 May 2020 although it was dated 8 March 2017, and a letter from Dr Shirin to the University of Canberra dated 24 November 2014 noting that at that time the applicant was suffering depression. The letter requested that the applicant be allowed to withdraw from the semester without penalty. A letter from Dr Newbery dated 10 May 2017 notes the applicant was seen by Dr Shirin in the later part of Semester 2, 2014 and was diagnosed with recurrent depression and she was of the opinion he was not fit to study at that time.

12. The applicant appeared before the Tribunal by telephone on 27 August 2018 to give evidence and present arguments. The applicant’s representative also attended the hearing. The Tribunal noted that the issues before it are whether he meets the enrolment criteria as per cl.500.211 and the genuine temporary entrant criteria as per cl.500.212. It outlined these requirements and Direction 69.

13. The Tribunal questioned whether he is currently enrolled in a course and he referred to past courses completed. It asked him again whether he is currently enrolled in a course and he said he is not. The Tribunal raised with the applicant via the process outlined in s.359AA that he is not currently enrolled in a course of study having completed the Advanced Diploma of Leadership and Management on 10 August 2018. He said he was not currently enrolled in a course.

14. As to his education in India, he said he finished two years of a Diploma of Computer Applications. He said he did not work in India.

15. As to his family, he said he has no family in Australia and his sister and parents are in India. He said he also has a sibling in the UK.

16. As to why he came to Australia to study in 2014, he said because his parents sent him as the education standard in Australia is higher. He said he also wanted to finish his higher studies in Australia

17. He said since approximately 2016 he has worked as a cleaner in Australia. He said he worked before  for a few hours here and there with some other employers.

18. The Tribunal discussed his study history and he gave the evidence as outlined in paragraph 5 above. The Tribunal raised its concern that from his arrival in May 2014 to February 2016 he did not complete any course and only one subject in the Diploma of IT.

19. The Tribunal referred to the medical evidence and notes that this only related to the second semester in November 2014 and noted the report indicates he has improved. It noted that there is no evidence that he was continuing to face medical difficulties in 2015. It questioned why he could not complete courses in 2015 and that it is odd his Doctor does not refer to difficulties in 2015. He said he was still suffering in this period.

20. The Tribunal asked about the value of his study in Australia to his future, and he said he wanted to complete higher studies and help his father expand his business. When the Tribunal asked about his father’s business; he said he owned a shop.

21. As to his future plans, he said he will return after completion of his higher studies. The Tribunal raised with him that on the evidence before it he had completed these and was not enrolled in a further course. He said he wants to study a Bachelor of Accounting and then return to India. The Tribunal raised with him that there is no longer a current COE for him to study a Bachelor of Accounting. The Tribunal queried how he is going to study a Bachelor of Accounting when he doesn’t have a current COE. He said he had applied for a further COE to study this  course.

22. The Tribunal noted that the COE he had submitted was dated in 2017 and noted he was not enrolled. He said he had a COE and his agent could send a current COE. The Tribunal raised its concern as he had said that he is not currently enrolled. He said he has a current COE. He said the College told him he could not study two courses at the same time so could not study the Bachelor of Accounting from May 2017 and had to complete the other courses first. He said he is waiting for the new COE and hopes he will start

23. As to why he needs a Bachelor of Accounting; he said as there are many workers in the grocery shop in India. The Tribunal asked about his father’s shop and he said it had many workers and they needed to be managed. He said he will help his fathers in the business.

24. The Tribunal asked him when he needed a Bachelor of Accounting to help his father’s business; he said from 2016. The Tribunal raised with him its concerns as to whether he is genuine in of his evidence as to the reasons he is studying the Bachelor of Accounting and referred to his different evidence provided to the Department as to why he wants to study the Bachelor of Accounting. He responded that his parents what him to complete his studies. The Tribunal read to him from his statement to the Department that while he said he wanted to help his father he stated that that he wanted to look for a job in India in accounting and commerce. He then said that he did want to look for a job.

25. The Tribunal asked whether he had paid any money towards studying the Bachelor of Accounting in the future and he said he did back in 2017.

26. He said he had no military commitments in India or civil and political reasons why he cannot return home. He said his parents want him to complete his studies and they are expecting something of him and he wants to complete his higher studies.

27. The applicant confirmed he had not returned home since his arrival in 2014. The Tribunal questioned if he was so depressed he could not study in 2015 why he did not return home. He said his parents did not want  him to return without completing his education.

28. The Tribunal repeated that he did not attend any class from the Diploma of IT to February 2016 when he started the Diploma course. It raised with him its concerns that he had been in Australia for approximately four years but only completed 2 years of study. It noted the Doctors evidence as to why he could not study was only for 2014.

29. The Tribunal asked about details of the Bachelor of Accounting. He said he researched it back in 2017. He could not name the subjects. He said cost is $31,416. He said they could not tell him the subjects when he went there. He said they told him when he completed the Advanced Diploma to come back to start the Bachelor course. When asked when he least spoke to the education provider he said 2017 but he said he had been contact with them through his agent. He then said he had directly had contact with them a couple of times. He said they told him he could only study the Bachelor degree once he completed the Advanced Diploma. The Tribunal noted he had now completed this course and asked whether he had been in contact with them and he said he has been in contact with them through his agent.

30. The Tribunal raised its concern as to his lack of knowledge of the Bachelor of Accounting  course particularly as he will commence study in a couple of weeks.

31. When asked to add anything, he referred to his depression and that he was confused. He said he is keen to start the Bachelor of Accounting.

32. The Tribunal asked when he came in 2014 whether it was the aim to return to work in his father’s business and he answered in the affirmative.

33. The representative noted that when he came to study IT he was doing so to assist his family. He said many students in India are mismanaged by agents in India. Many students look to study overseas and complete a Bachelor degree.  He referred to the applicant’s changes in courses. He said that the applicant came to him for the Tribunal hearing and noted the Department did not refer to him completing the Diploma. He noted the education provider will give him a new COE and new dates to study the Bachelor course.

34. He referred to the letter issued by the Doctor in 2017 which noted initial consultant was in November 2014 and that his condition improved with treatment.

35. The Tribunal questioned the applicant’s intention when he had no COE, had not paid any fees towards the course and did not know much about the course.

36. The applicant was given to 31 August 2018 to provide further evidence as to enrolment and any further matter.

37. On 30 August 2018 the applicant provided a new COE to study a Bachelor of Accounting at UBSS from 27 August 2018 to 13 August 2021. Attached was a receipt noting he paid $1597.50 on 27 August 2018 to study the Bachelor of Accounting.

    CONSIDERATION OF CLAIMS AND EVIDENCE

38. 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 meets cl.500.212 (a).

39. Clause 500.212(a) 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

40. 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 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.

41. 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.

42. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

43. As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to India. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. The Tribunal accepts that study in Australia is highly regarded for future employees and there are more opportunities if a person studies in Australia. The Tribunal accepts his parents and sister are in India, he has a sibling in the UK and he has no family in Australia. It accepts his father is elderly. It accepts that these circumstances in India and offshore are indicative of a person who is only a temporary entrant and wishes to return to their country.

1. The Tribunal also accepts that the applicant has since his arrival in Australia successfully completed a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management and since the hearing is enrolled in a Bachelor of Accounting. However, the successful completion of courses is but two of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.

2. The above information indicates the applicant has been in Australia since his arrival in May 2014. Of concern is that in the over 4 years that he has been studying in Australia he has only successfully completed two courses at the vocational level being a Diploma  and Advanced Diploma of Leadership and Management commenced in February 2016. This is particularly of concern as he arrived in Australia on a subclass 573 visa and while he has been enrolled in courses at this level on a number of occasions he was at the time of the hearing yet to commence a course at this level with all enrolments in the Bachelor courses not being commenced.

3. The evidence indicates that from his arrival in May 2014 to February 2016 he only successfully completed 1 subject in the Diploma of IT which he studied in 2014 and ceased studying in November 2014. He gave evidence that the reason for his slow course progress in the IT course studied in 2014 was that it was a different study environment from India, he faced difficulty settling in and he was suffering depression.  He provided medical evidence to support he was suffering depression in 2014. The Tribunal accepts his slow course progress in the Diploma of IT, he studied in 2014 was for the reasons he claims. However his evidence is that he did not attend the Diploma of Communication he was enrolled in from 2015. He said this was also as a result of his depression for which he was being treated and deferred but there is no medical evidence from 2015 to support this. Rather the evidence indicates his enrolment was cancelled for non-payment of fees and unsatisfactory course progress. As raised with the applicant the Tribunal is of the view that if he could not attend for the reasons he claims and he continued to be under medical treatment that he would be able to provide medical evidence in this regard. Without the supporting medical evidence, as he provided for 2014, the Tribunal does not accept he did not study for this reason. It also does not accept that he did not attend as he was given poor advice by his agents and the environment was new and he had now been in Australia for some time. It views his lack of study, particularly his lack of attendance and course completion in 2015 to February 2016 to be of concern.

4. While the applicant provided evidence of current enrolment in the Bachelor of Accounting to commence on 27 August 2018 following the hearing and payment of approximately $1500 towards the course, it found his evidence at hearing as to his knowledge of this course and the value of the course to his future to undermine his claims he is a genuine student.

5. Firstly, despite his claim at hearing that he decided he wanted to study the Bachelor of Accounting when he began the Diploma of Leadership and Management, submitting the COE to study this with his application and a new COE to study it again with the same education provider after the hearing, his knowledge as to this course was lacking in detail. When asked as to the subjects he will study; he said he had not discussed this and could provide no detail or information. The Tribunal is of the view if he was and is genuine and committed to his study for the reasons he claims he would have been able to provide more information as to the subjects of the course he was enrolled, particularly as he was going to start soon after the hearing.

6. Further, his evidence at hearing as to why he wants to study the Bachelor of Accounting and had studied the Leadership and Management courses was that he wanted to return to assist and expand his father’s grocery business. He said he had had this aim since 2016 but later said he had this aim when he came in 2014. When the Tribunal questioned the need for a Bachelor of Accounting to work in and expand his father’s business, he said there are many workers. However, as raised with the applicant at hearing, his evidence in his written statement to the Department as to the reasons he is studying these courses is not consistent with that provided at hearing.  In his statement to the Department while he does refer to studying these courses to return and assist his father, he indicates that after studying these degrees he will be able to be employed in some of the best commerce companies and obtain accreditation from the Australian CPA which would help with his future career. He refers to working in commerce and accounting. When the inconsistency was raised, he responded that his parents want him to complete his study which does not explain the inconsistency. He then added that he also wanted to obtain a job. The Tribunal notes he only provided this evidence after he was prompted to by the Tribunal advising him what he stated to the Department and places no weight on this response. On the basis of the inconsistent evidence the Tribunal does not accept the applicant’s evidence as credible as to why he is undertaking the current courses. It is of the view if he is undertaking the current courses for the reasons he claims, to assist his father’s business, his evidence would be consistent between the Department and Tribunal. The Tribunal is therefore of the view he has enrolled in the Bachelor of Accounting to maintain residence rather than as a genuine student.

7. As to the applicant’s immigration history, the Tribunal is of the view there is nothing which indicates that he does not genuinely intend to stay in Australia temporarily.

8. In making the decision the Tribunal has considered all the evidence before it, including that he is enrolled in the Bachelor of Accounting, he has previously completed courses outlined above, has much stronger family ties in India than in Australia, has indicated he will return home on completion of the current course; however for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.

9. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

10. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

11. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Gabrielle Cullen
    Member