Sukhwinder Singh (Migration)

Sukhwinder Singh (Migration) [2021] AATA 1830 (27 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sukhwinder Singh
CASE NUMBER:  1928248
DIBP REFERENCE(S):  BCC2019/3580587
MEMBER:Margaret Forrest
DATE AND TIME OF
ORAL DECISION AND REASONS:         27 January 2021 at 10:29 am (QLD time)
DATE OF WRITTEN RECORD:                20 March 2021
PLACE OF DECISION:  Brisbane
DECISION:The tribunal affirms the decisions not to grant the Applicants Student (Temporary) (Class TU) visas.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – enrolment at lower level than previous highest study – subsequent courses not completed or never started – change of subject area – medical condition and travel to visit sick mother – vague reasons for not studying in home country and future business plans – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 September 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).
At the hearing on 27 January 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
The applicant applied for the visa on 18 July 2019. 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. 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 temporary entrant.
The applicant appeared before the Tribunal on 27 January 2021 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was assisted in relation to the review by their registered migration agent, who also appeared at the hearing by telephone and made submissions.
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 the 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.
In the week before the hearing the Tribunal sent the applicant a copy of his records from the Provider Registration International Student Management System known as PRISMS. The Tribunal indicated that the member may refer to the PRISMS record during the hearing. On the basis that the applicant’s PRISMS record contains information that is consistent with information the applicant has already given the Tribunal, the Tribunal did not put the applicant’s PRISMS record to him during the telephone hearing.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 is a genuine temporary entrant.
Genuine applicant for entry and stay as a student (cl.500.212)
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?
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.
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.
The applicant confirmed that he first arrived in Australia on 10 June 2013. The applicant submitted an information form to the Tribunal on 29 July 2020. The applicant confirmed that all of the information in this form was correct.
The applicant applied for his student visa on 18 July 2019. When the applicant submitted his current student visa application he was proposing to study a Diploma of Hospitality Management, an Advanced Diploma of Hospitality Management, and a Bachelor of Tourism and Hospitality Management. These courses were scheduled to conclude in July 2021.
Prior to submitting his current student visa application the applicant was granted two student visas: one was valid between 2013 and 2016, and one was valid between 2016 and 2019. Prior to coming to Australia, the applicant completed the following educational courses in India:
a. high school between 2006 and 2009; and
b. an Advanced Diploma of Business Administration between 2010 and 2012.
The applicant provided the following information about courses he has been enrolled in since he arrived in Australia almost seven and a half years ago:
a.   the applicant completed a Certificate IV in Business in 2014;
b.   the applicant did not complete a Diploma of Management in 2014/15;
c.   the applicant never started an Advanced Diploma of Management between 2015 and 2016;
d.   the applicant never started a Bachelor of Business between 2016 and 2019; and
e.   the applicant never started an Advanced Diploma of Leadership and Management between 2017 and 2018.
In terms of the courses the applicant was proposing to complete when he applied for his student visa, the applicant did not complete the Diploma of Hospitality Management in 2019; the applicant did not complete the Advanced Diploma of Hospitality Management in 2019; and the applicant did not start his Bachelor of Tourism and Hospitality Management between 2020 and 2021.
The applicant is presently enrolled in the following courses:
a.   Certificate III in Commercial Cookery;
b.   Certificate IV in Commercial Cookery; and
c.   a Diploma of Hospitality Management.
This set of courses is scheduled to conclude in September 2022.
The Tribunal asked the applicant about the circumstances in his home country. The information form submitted by the applicant contained the following question:
If there are similar courses available in the main applicant’s home country or region to the courses they are currently studying and/or propose to study in Australia, please give details of the main applicant’s reasons for not undertaking the courses in their home country or region.
The applicant responded:
To get admission in India it’s very difficult. With courses like cookery and hospitality there are very rare colleges to find as they are not exposed much with these courses. There has always been a cutthroat competition to get into a reputed college in India, and without entrance exams it is not possible. These other problems every student face in India while applying for their higher studies.
Moreover, I have studied at Australian Institute and it was new learning. Australian schools engage students in active learning through class participation, dialogue exchange, case studies, and practical off and on-campus experiences that make learning fun and meaningful. These are the main reasons I want to pursue my further education in Australia in the field of my interest, because I am pretty much sure that it will be worth to spend the cost of international tuition fees, health insurance and living costs in Australia.
The applicant told the Tribunal that the following family members continue to reside in India: his parents, his brother and his wife. The applicant said he last saw his family in India in January 2019. The applicant said he talks to his wife and his family members on a regular basis. The applicant confirmed that since arriving in Australia almost seven and a half years ago he has returned to India four times:
a.   once in 2015 for two months when his mother was sick;
b.   once in 2016 for four months;
c.   once in 2018 for one month when his mother was sick; and
d.   once in 2019 for one month.
The applicant said that in India he was into community service and he provided help with Sunday services at Gurudwara, which is a Sikh temple. The applicant said that there is a residential house in India worth AU$70,000, and land in India worth AU$5000, but this property is in his father’s name. The applicant said he expects to inherit this property when his father passes away. The applicant said he is not concerned about military service commitments or political or civil unrest in India.
The Tribunal finds that when all of this evidence is considered, the applicant’s family ties to India do not of themselves constitute a significant incentive for the applicant to return to India. In making this finding the Tribunal has placed significant weight on the fact that the applicant has been in Australia for seven and a half years, has only returned to India four times, and has managed to keep in contact with his family there by electronic means.
The Tribunal asked the applicant about his potential circumstances in Australia. The applicant said that he has no family living in Australia and no property in his name. The applicant said he is not presently working in Australia and he is being financially supported by his family. The applicant said that he visits the Sikh temple in Australia and provides a helping hand in services. Taking into account all of this evidence, the Tribunal finds that the applicant’s family ties to Australia do not of themselves constitute a strong incentive for the applicant to remain in Australia.
The applicant told the Tribunal that prior to coming to Australia he did not work in India. The applicant said that since arriving in Australia he has worked as a storeman/forklift operator between 2013 and 2017. The applicant said he has not worked in Australia since 2017.
The applicant’s current set of courses is scheduled to conclude in September 2022. The Tribunal asked the applicant when he plans to leave Australia, and the applicant said as soon as this study is completed.
The Tribunal asked the applicant why he did not complete the set of courses he was proposing to complete when he first applied for his student visa. The applicant said that he was suffering from [medical condition], and when he went back to complete his courses, his education provider had cancelled his confirmation of enrolment certificate. This was despite the applicant giving his education provider medical evidence.
The Tribunal asked the applicant why he has swapped the focus of his studies so many times since arriving in Australia. The applicant said that when he came here his agent just picked a course from their perspective and he just came here. The applicant said when he first arrived he was undertaking business studies, but he realised that he was not into that, and since then he has switched courses a couple of times, but now he is interested in hospitality and cookery.
The Tribunal put to the applicant that given he had only completed one course in seven and a half years, the Tribunal may form the view that the applicant is attempting to use the student visa system to remain in Australia for longer. The applicant said that he has a deep attachment to his mother, and he used to feel very homesick, and he did not feel well, and he was not consistent with his studies for a while there.
The Tribunal accepts that the applicant has provided medical evidence to the Tribunal regarding his [medical condition]. The medical evidence covers the period from 7 August 2017 to 1 June 2018; from 23 October 2019 onwards; and the six months preceding 19 May 2020. The Tribunal also accepts the applicant has provided medical evidence to the Tribunal that indicates the applicant’s mother was admitted to hospital on 15 July 2017. This evidence indicates that the applicant’s mother’s condition started to improve in May 2018.
While the Tribunal accepts that the applicant has experienced periods of [medical condition] since he first arrived in Australia, and has returned to India on two occasions for short periods to visit his mother, who was sick, the Tribunal does not accept that this explains the applicant’s failure to complete the majority of courses the applicant has enrolled in since he arrived in Australia. Given that the applicant has only completed one course in the seven and a half years he has been in Australia, and the fact that the applicant has swapped the focus of his studies a number of times, the Tribunal is concerned that the applicant is attempting to use the student visa system to stay in Australia for longer.
The Tribunal asked the applicant about the value of his current courses to his future. The applicant said his current future plan is that he plans to gain experience in the hospitality industry in India, and later open a multi-cuisine restaurant in his home town.
When the applicant submitted his current student visa application he told the Department that his future plan was to work in senior positions at supervisor and managerial levels in large businesses. The Tribunal asked the applicant to explain this change in his future plan. The applicant said that when he submitted his application he wasn’t sure about working in business at the time, but that his field now is cookery.
The Tribunal asked the applicant if he has applied for any jobs in the hospitality industry in India. The applicant said he had not at the moment, but his plan was to study and then explore his options.
The Tribunal asked if the applicant had a written business plan for his future business. The applicant said that he has a very clear idea about his business. The applicant said his business plan does not currently exist, but that he is working on it.
The Tribunal asked the applicant why he needs his current set of courses in order to complete his future plans. The applicant said that he is presently studying his Certificate III and IV in Cookery, and a Diploma of Hospitality. The applicant said he had explored his options, and that after completing these courses he will be cooking and will be a ‘manager expert’.
The applicant said that there were very good opportunities in his home town. The Tribunal asked why the applicant could not complete equivalent courses in India. The applicant said that he frequently talks to his friends and teachers in his home town, and that the kind of education and training provided in Australia is very different, and that in Australia he gets to cook dishes on the campus.
Taking into account all of this evidence, the Tribunal finds that the applicant has provided only vague details about his future plan. In making this finding, the Tribunal has taken into account:
a.   the fact that the applicant has not applied for any jobs in the hospitality industry in India;
b.   the fact the applicant does not presently have a written business plan for his future business; and
c.   the fact that the applicant has changed his future plan since he first applied for his student visa.
The Tribunal also finds that the applicant has failed to explain in any meaningful detail how his current set of courses will assist him to complete his future plans, and also why he is unable to undertake equivalent courses in India.
The applicant said that he did not undertake any work in India prior to coming to Australia. The applicant said that when he was working in Australia he earned approximately AU$18,000 per year.
The applicant said that if he worked in a three to five-star hotel like the Taj Hyatt in India, he would expect to earn between 60,000 and 80,000 Indian rupees per month. That is the equivalent of approximately AU$12,768 to AU$17,030 per year. Given the Tribunal’s earlier findings regarding the applicant’s future plans, the Tribunal does not accept this evidence.
The Tribunal has taken into account the applicant’s immigration history insofar as the applicant has been in Australia for approximately seven and a half years and is presently attempting to extend his stay in Australia by approximately two years. The applicant has also previously been granted two student visas, yet has only completed one course in the seven and a half years that he has been in Australia.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily; recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. The Tribunal has found that the applicant’s family ties to Australia do not of themselves constitute a strong incentive for the applicant to remain in Australia.
However, when the Tribunal takes into account the following findings and evidence, the Tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence:
a.   first, the Tribunal’s finding that the applicant’s family ties to India do not of themselves constitute a strong incentive for the applicant to return to India;
b.   second, the Tribunal’s finding that it does not accept the applicant’s explanation for his failure to complete the majority of courses he has enrolled in since he first arrived in Australia;
c.   third, the fact that the applicant has only completed one course since he arrived in Australia seven and a half years ago;
d.   fourth, the Tribunal’s finding that the applicant has provided only vague details about his future plans; and
e.   fifth the Tribunal’s finding that the applicant has failed to explain in any meaningful detail how his current courses will assist him to complete his future plans, and why he is unable to undertake equivalent courses in India; and
f.    finally the applicant’s immigration history insofar as the applicant has been in Australia for seven and a half years and is attempting to extend his stay in Australia for a further two years, despite having been granted two previous student visas.

On this basis 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).
Conclusion on cl.500.212
Accordingly, the tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given this finding 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
The tribunal affirms the decisions not to grant the Applicants Student (Temporary) (Class TU) visas.
Margaret Forrest
Member

[2021] AATA 1830

27 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice