1417859 (Migration)

[2015] AATA 3459

1417859 (Migration) [2015] AATA 3459 (8 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raghava Reddy Vangapally

CASE NUMBER:  1417859

DIBP REFERENCE(S):  BCC2014/1372803

MEMBER:Adrian Ho

DATE:8 October 2015

PLACE OF DECISION:  Melbourne

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 572 Vocational Education and Training Sector visa:

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 08 October 2015 at 5:09pm

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. The applicant applied to the Department of Immigration for the visa on 3 June 2014. The delegate decided to refuse to grant the visa on 14 October 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).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 7 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

   Genuine temporary entrant

8. 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)     …

9. 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.

10. 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.

11. At hearing, the applicant was:

    a.Given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student;

    b.Informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;

    c.Informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.Given an overview of the considerations laid out in Direction No.53 as summarised above and informed that they are not to be used as a checklist but to inform the tribunal’s consideration of the question in issue;

    e.Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the tribunal hearing;

    f.Informed that all subclasses of the Class TU visa have equivalent ‘genuineness’ criteria (other than Subclass 580), and that if the criterion was not met, it would not be met for each of those subclasses;

    g.Informed that the Subclass 580 visa is for student guardians; where it is a requirement that the person will accompany a relative to or in Australia who is a student, and that on the evidence, the applicant was not such a person and would appear not to meet the relevant criteria for that subclass (In response at hearing the applicant confirmed that the applicant was not a student guardian, and was informed that the criteria for Subclass 580 would therefore not be met).

12. The Tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53, and in particular, on the applicant’s study and immigration history and his switch from studying technology related courses to cookery and hospitality. 

    Findings

13. In his evidence, the applicant explained that his original intention was to following his Indian bachelor of information technology with a bachelor in the software field in the United States.  That plan was foiled when his visa application for the USA was twice refused.  He was then granted a student visa to study in Australia.  Instead of seeking a course similar to a bachelor in the software field, as was his intention for study in the USA, he chose VET sector courses in printing, graphics, media and multimedia which he said were a package.  Contrary to his written submissions, he confirmed at hearing that he completed around 70% of this package of courses, but did not in fact complete any of the individual courses in the package.  The applicant abandoned study of the courses in that package, and proceeded to complete two VET sector courses in the information technology field which were more in line with his existing bachelor’s qualification.

14. It was his evidence that his existing Indian bachelor’s in information technology (IT) would not make him competitive in Indian IT industry.  He chose the two Australian diplomas in the IT field to attempt to augment his prospects of getting a better salary in India.  At the conclusion of these courses, and after six years of studies in IT, he consulted friends in India, and formed the view that the IT diplomas in Australia, and even another bachelor’s in an IT field, would not augment his salary prospects appreciably in India.  On this basis, he did not seek to advance his study in IT to the bachelor’s level, as had been his original plan for study in the USA.  On his evidence, he essentially abandoned any prospect of a career in IT in India.

15. Instead, he next completes a Certificate III in Commercial Cookery.  This is, as the delegate points out, a significant change in his study area.  The impetus for the change, he claims, is a suggestion from five of his friends, who are all working in the IT industry in India, that together they open a restaurant in India.  For this plan, they suggested to him that he study cooking and hospitality.  They themselves have no training or experience in running a restaurant. 

16. The applicant seeks this visa to complete the certificate IV in commercial cookery and diploma of hospitality, due to finish in July 2016. 

17. The Tribunal expended considerable time and effort at hearing encouraging the applicant to speak to the claimed plan of opening a restaurant.  The applicant was adamant that his plan was to return to India after completion of the diploma to execute the plan of opening the restaurant.  It was suggested to him that therefore his departure from Australia, and return to open the restaurant in India, was only around 8 months away. 

18. He was encouraged to speak to the plan to open the restaurant which on his claim led to a marked change in his study area in Australia and a significant further investment of time and money, and time away from his wife in India.

19. The applicant’s evidence as to the claimed plan to open a restaurant was vague and lacked detail.  The plan he says is that his five friends may invest in the restaurant, and as the person trained in the industry, he will be the team leader.  He conceded that his friends had no skills relevant to the hospitality industry.  When pressed at length he offered that a Lebanese restaurant serving breakfast, lunch and dinner was being considered in a location near the airport.

20. The Tribunal does not find the claimed plain to open a hospitality establishment in India convincing. 

21. On the evidence, the applicant had no concrete plan for the use of his Bachelor of IT from India, and no concrete plan when choosing to persist in IT studies in Australia.  As a result, he has abandoned around six years of IT study with that study not holding any distinct value to his future.

22. Similarly, the tribunal finds his claimed plan of opening a restaurant in India vague and underdeveloped.  Direction 53 acknowledges that reasonable changes in career and study plan should be accommodated.  The tribunal considers that the applicant’s change from his computer science studies in India to graphics, printing and multimedia in Australia to be one such change which has already been accommodated by the Department. 

23. The Tribunal pointed out to the applicant that it appears he had persisted in IT studies in Australia without doing any thorough research into whether a career would yield him the financial returns he was seeking.  It suggested to him that the tribunal was keen to see that he was not making a similar mistake in transitioning to two further years of unrelated study in Australia which continues to be in the VET sector, below the level of education he had already attained in India.  It was suggested to him that he might be expected to be able to articulate good reasons for making the change, especially where he claims to have studied IT for around six years only to later discover that his highest bachelor’s qualification was of limited value to his financial goals.

24. The applicant claims that a low-paying IT job in India would not be sufficient to support both himself and his wife, who is an Indian engineering graduate.  He claims that opening a business holds better financial prospects.  Given the vagueness of his plans to open a restaurant, the tribunal is not satisfied that that represents a safer and more secure plan for financial security than what the applicant describes as an IT job already reserved from him at Pro Karama Technologies Pty Ltd (f.59).

25. Despite being adamant that he wishes to return to open the restaurant next year, on the evidence, the applicant is not able to offer any opinion as to how much the restaurant will cost to establish, how many staff would be required given that his five friends have no skills or experience in hospitality, what revenue it is likely to achieve, and whether it would yield him more than the 15000-20000 Rupees a months he expects from Pro Karama Technologies Pty Ltd (f.59).

26. The tribunal considers that the applicant’s claim to wish to open a restaurant remains a bald claim, which the tribunal finds unconvincing.  The tribunal therefore is not satisfied that the applicant has a reasonable explanation for abandoning a career in IT and embarking on a further stay of around two years to pursue hospitality htudies in Australia.

    The applicant’s wife in India

27. At hearing the applicant informed the Tribunal that in 2013 he applied to have his wife granted a student visa as a member of his family unit.  He believes the outcome of that attempt to have her join him in Australia was unsuccessful partly because he had less than one year of validity remaining on his student visa at the time.

28. Despite having attempted to have her granted an Australia visa in 2013, he maintains that there is now no plan to have her join him in Australia going into the future.  This is because he claims, in line with the courses he proposes, that he will complete the Diploma of Hospitality in July 2015, and fully intends to return to India and reunite with his wife then. 

29. The Tribunal acknowledge to the applicant that his wife’s residence in India should serve as a distinct incentive for him to return, and therefore should support the proposition that he intends a temporary stay in Australia.  However, some doubt was also expressed as to the strength of this incentive given that he had attempted to have her reunite with him in Australia in 2013.

30. The tribunal observes that having her reunite with him in Australia in 2013, the couple both being on a temporary student visa, is not inconsistent with a proposition that he now only intends a temporary stay to complete the diploma of hospitality. 

31. Having weighed this question for some time, the tribunal considers that some weight should still be given to the applicant’s wife’s residence in India as an incentive for him to return home.

    Conclusion

32. Despite not being satisfied, for the reasons above, that the applicant’s study in cookery and hospitality hold any significant value to his claimed future career in India, the Tribunal is prepared to accept on the basis that his wife’s residence in India remains some incentive for him to return, that he intends to stay temporarily in Australia as a student on the following basis only:

    a.He is adamant that he will return to India to be with his wife after completing the diploma of hospitality, which is scheduled to finish in July 2016;

    b.He has no intention to stay in Australia beyond the completion of the Diploma in July 2016;

    c.The couple have no intention that his wife will seek to join him in Australia in the future;

    d.Therefore, the couple have no intention that his wife will make an application to join him in Australia;

    e.On his evidence at hearing, his Diploma of Hospitality course already contains practical components which he considers sufficient for his claimed future purposes and he is adamant that he will not seek further stay in Australia in order to gain practical experience in hospitality, or for any other reason.

33. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily for the purposes only of completing a Diploma of Hospitality scheduled to finish in July 2016, after which the clear and unambiguous intention of the applicant is to return to India to reunite with his wife.

34. Accordingly, the applicant meets cl.572.223(1)(a).

35. As the Tribunal has found the applicant meets the requirement of cl.572.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

36. 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 572 Vocational Education and Training Sector visa:

    ·cl.572.223(1)(a) of Schedule 2 to the Regulations.

    Adrian Ho
    Member