Sumit Kumar (Migration)

[2018] AATA 5522

Sumit Kumar (Migration) [2018] AATA 5522 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sumit Kumar

CASE NUMBER:  1714093

HOME AFFAIRS REFERENCE(S):           BCC2017/904676

MEMBER:M. Edgoose

DATE:14 December 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 14 December 2018 at 2:14pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa –genuine temporary entrant criterion – poor level of academic progress– maintain ongoing residence in Australia – mental health issues –criminal charges – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 13 June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 March 2017. 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 delegate in this case refused to grant the visas 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 intends genuinely to stay temporarily in Australia.

4. On 14 August 2018 the applicant was invited under s.359(2) of the Act to provide information about his proposed course of study and his entry to stay in Australia as a student. The applicant was informed that if the Tribunal did not receive the information by 28 August 2018, that the Tribunal may make a decision on the review without taking any further action to obtain the information.

5. The applicant responded to the “Request for Student Visa Information under s.359(2) of the Migration Act 1958” on 23 August 2018 (AAT Folio 22-27) and informed the Tribunal that he did not consent to the Tribunal deciding the review without a hearing.

6. The applicant appeared before the Tribunal on 12 November 2018 to give evidence and present arguments.

7. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 intends genuinely to stay in Australia temporarily.

10. 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?

11. 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.

12. 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.

    Background and applicant’s immigration history

13. The applicant gave evidence at hearing that he is from India and first arrived in Australia on 15 November 2014 on a 573 student visa to study a Master of Business Administration (International Management) which the applicant did not complete as his COE was cancelled on 9 April 2015.

14. The applicant applied for the visa on 7 March 2017. The delegate refused to grant the visa on 13 June 2017 on the basis that the ‘Genuine Temporary’ entrant criterion, or GTE criterion which applies to every student visa, was not met.

15. The Tribunal has considered clause 13 and 14 of Direction 69 with respect to the applicant’s immigration and travel history. The applicant informed the Tribunal that he has only departed Australia on one occasion from 7 March 2016 until 1 August 2016 when he returned to India to receive treatment for his mental health issues. The applicant told the Tribunal that Australia is the only country he has travelled to outside of India and that he has complied with the relevant visa conditions. The Tribunal considers little weight to the applicant’s travel movements.

    The applicant’s circumstances in their home country                    

16. The Tribunal has considered the factors in clause 9 and 10 of Direction 69 with respect to the applicant. At hearing the applicant informed the Tribunal that he had completed a Bachelor of Mechanical Engineering back in India between 2009 and 2013 and had worked for his father’s business but was not paid a salary before coming to Australia.

17. The applicant told the Tribunal that he had not completed his studies back in India because in Australia you get a lot of practical knowledge when completing courses compared to India where it is more about theory. The applicant stated that India does have a good education system however after completing some research the applicant decided that Australia was the best place to come and study. The Tribunal accepts that the applicant may have completed some research about his intended initial course, that being an MBA, before coming to Australia however the Tribunal does not consider the applicant has reasonable reasons for not undertaking his current course of study in Mechanical Technology in their home country if a similar course is already available there.

18. The applicant told the Tribunal that his parents are back in parents and brother. The applicant’s father is an auto electrician, his mother is a housewife and that his brother is currently studying. The applicant informed the Tribunal that he has been able to manage personal relations with his parents and brother back in India while living in Australia by making contact on a daily basis. In these circumstances, the Tribunal does not consider the applicant’s personal ties to their home country would serve as a significant incentive to return to their home country.

19. The applicant informed the Tribunal that he has no issues of concern, military service commitments, political and civil unrest back in India. The Tribunal accepts the applicant’s response.

    The applicant’s potential circumstances in Australia

20. The Tribunal has considered the factors in clause 11 of Direction 69 with respect to the applicant. The applicant informed the Tribunal that he has no significant ties within Australia which would present is a strong incentive to remain in Australia. The Tribunal accepts that the applicant has no significant ties to Australia.

21. During the time the applicant has been in Australia he has only completed a six month Diploma of Business between September 2016 and February 2017. The Tribunal does acknowledge that the applicant did return to India between 7 March 2016 until 1 August 2016 however does not accept that the completion of a six-month diploma course during his already significant time in Australia is the behaviour of a genuine student and a genuine temporary entrant.

22. The Tribunal is concerned that the applicant has already been enrolled in a Certificate III in Light Vehicle Mechanical Technology previously, between February 2017 and July 2017, and that he did not complete the course as stated by the applicant in the “Request for Student Visa Information under s.359(2) of the Migration Act 1958”. The applicant was also enrolled to complete a package of cookery and hospitality certificate and diploma level courses however the applicant’s COE’s for these courses were cancelled as he did not complete the initial Certificate III in Commercial Cookery level course as stated by the applicant in the “Request for Student Visa Information under s.359(2) of the Migration Act 1958”. The applicant was not able to provide an explanation to the Tribunal as to why he had not completed these courses and for these reasons that Tribunal considers that applicant was using the student visa to maintain ongoing residence in Australia.

23. The applicant informed the Tribunal that due to his mental health issues he had not completed his courses and that he was now focused on progressing academically. The applicant submitted to the Tribunal a range of medical documents including prescriptions, pathology reports and transition/discharge summaries from both Australia and India. The Tribunal notes that the medical documentation from 2016 (AAT Folio 51 – 59) covered the period when the applicant did not study and returned to India to have a spell from his studies and to receive treatment. The applicant returned to Australia on 1 August 2016 and completed a Diploma of Business between September 2016 and February 2017.

24. The applicant submitted to the Tribunal Confirmation of Enrolments for a package of automotive certificate and diploma courses

    a.Certificate III in Light Vehicle Mechanical Technology which commenced on 24 September 2018 and is due to be completed on 22 September 2019 (AAT Folio 48b)

    b.Certificate IV Automotive Management which is due to commence on 23 September 2019 and due to be completed by 22 March 2020 (AAT Folio 47b)

    c.Diploma of Automotive Management which is due to commence on 6 April to 2020 and to be completed by 4 April 2021.

    The Tribunal doubts the applicant will complete this package of automotive certificate and diploma courses given his lack of academic progress since arriving in Australia in November 2014 and that he has only enrolled in these courses for the purposes of meeting the requirements of being granted a student visa and for these reasons the Tribunal is not satisfied that the applicant is a genuine student and that the student visa program is being used to circumvent the intentions of the migration program and to maintain ongoing residence in Australia.

25. At hearing the applicant stated that he was still on prescription medication for his mental health issues. The Tribunal requested the applicant submit his current prescriptions as the previous information was from 2016. The applicant submitted to the Tribunal up-to-date prescriptions (AAT Folio 65 – 66) dated 28 September 2018 for Levothyroxine Sodium Tablets and Levothyroxine which are taken to treat thyroid hormone deficiency and prevent certain types of thyroid tumours. The Tribunal notes that no prescriptions or medical evidence was submitted to the Tribunal regarding the applicant’s mental health issues or that he was unfit to study. The Tribunal gives little weight to the prescriptions that were submitted as they are for the treatment of thyroid deficiencies and not mental health.

26. The applicant informed the Tribunal that he works as a cleaner 20 hours a week and is paid AUD $20 per hour. He currently lives in Laverton with two other men from India and contributes AUD $400 per month towards the rent. The Tribunal finds that the economic circumstances within Australia of the applicant would present as a strong incentive for the applicant not to return to his home country.

27. Given that the applicant has remained gainfully employed as a cleaner since January 2015 through Integrated Service Solutions at AUD $20 per hour the Tribunal is concerned that the applicant’s primary focus is on working and not his studies given his lack of academic success. The applicant has been able to hold a steady income during his time in Australia and throughout his time of suffering mental health issues but this has not translated to achieving academic success while on a student visa and for these reasons that Tribunal is not satisfied the applicant intends to stay in Australia temporarily and that the student visa is being used to maintain ongoing residence.

28. The Tribunal gives regard to the applicant’s “Statement’’ dated 8 November 2018 (AAT Folio 48-49) which was written with the assistance of the agent. The statement mentioned that the applicant wishes to complete the courses in Automotive Mechanical technology so that he can become an Advanced Diagnostic technician in the automobile industry in India; That this college is providing work placement for students completing the course; his reasons for studying in Australia was that the education system in India provide students with a huge amount of knowledge but no practical experience; that is current living arrangement in Australia are with other international student so is learning about their different cultural backgrounds; that he completed a Bachelor degree in Mechanical Engineering before coming to Australia to study a Master of Business Administration; that he made some wrong decision in not completing his courses due to his health condition and that he has undertaken treatment for his mental health problems both in Australia and back in India; that when he resumed his studies he completed a Diploma of Business and then was attracted to the area of Automotive Mechanical technology which he is now studying. The applicant concluded by stating that after the completion of these courses he will pursue his career as an Advanced Diagnostic technician in India. The Tribunal has difficulty accepting the applicant’s statement given that he has not explained the full reason as to why he has only completed a 6 month diploma course during his 3.5 years in Australia other than to say he has made some wrong decisions and suffered from mental health issues. The applicant did not explain the reason why he did not complete that Master of Business Administration for which he was granted his initial student visa. For these reasons the Tribunal is not satisfied with the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future      

29. The Tribunal has considered the factors in clause 12 of Direction 69 with respect to the applicant. The applicant stated that the package of automotive courses is important to his future back in India because it will provide him with the required skills and qualifications to gain future employment in the mechanical diagnostic area and to possibly open his own business in the field in the future. The applicant said to the Tribunal that he was not sure what remuneration he could expect to receive in India, however he expects it would be in the vicinity of AUD $950 per month. The Tribunal considers the current package of courses is not consistent with the applicant’s current level and the Tribunal has serious concerns that the applicant will actually complete the courses given his lack of academic achievement since arriving in Australia in November 2014. For these reasons the Tribunal is not satisfied that the applicant is seeking to undertake a course that is consistent with their current level of education and that it is relevant to the applicant’s past or proposed future employment either in their home country or a third country.

30. There is no relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: remuneration the applicant could expect to receive in the home country compared with Australia, circumstances in the home country relative to Australia or any other country and the applicant’s circumstances in the home country relative to others in that country. The Tribunal makes no findings in regards to these factors in Direction 69.

    Any other relevant matters

31. The Tribunal wrote to the applicant on 22 November 2018 pursuant to s.359A inviting him to provide information or comment on information that it considered would be part of the reason for affirming the decision under review after being charged with two offences of sexual assault on 6 November 2018. The applicant was given until 7 December 2018 to respond to the invitation. The Tribunal notes that no request for an extension of time within the time period was requested and no response was received within the time period or at time of this decision. The Tribunal is not satisfied that the applicant will comply with clause 16 of Direction 69 and accordingly does not meet clauses 500.212(a), 500.212(a)(iv) and 500.212(c). The Tribunal puts heavy weight on the seriousness and gravity of the charges as both charges are indictable offences.

32. 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).

33. 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.

34. 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

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

    M. Edgoose
    Member