1508277 (Migration)

[2016] AATA 4580

1508277 (Migration) [2016] AATA 4580 (17 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Srikanth Kumar Pambha

CASE NUMBER:  1508277

DIBP REFERENCE(S):  BCC2015/584000

MEMBER:Adrian Ho

DATE:17 October 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 17 October 2016 at 5:39pm

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 20 February 2015. The delegate decided to refuse to grant the visa on 28 May 2015. 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 11 October 2016 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent who advised at the outset of the hearing that he had no submissions to make and absented himself from the remainder of the hearing.

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

7. Where used in this decision:

   a.The applicant refers to the first-named applicant;

   b.COE refers to Certificate of Enrolment;

   c.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   d.VET refers to Vocational Education and Training;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   g.IELTS refers to the International English Language Testing System.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Having regard to the VET sector courses proposed with the visa application, the relevant subclass in this case is Subclass 572.

   Genuine Temporary Entrant

9. A major 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)     …

10. 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.

11. 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.

12. 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 as required by the Regulations;

    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;

    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, and that if the criterion was not met, it would likely not be met for each of those subclasses.

    The Tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Findings

13. On the applicant’s evidence, and by reference to relevant considerations laid out in Direction 53, the applicant’s oral evidence, and written material provided by the applicant to the Department and Tribunal, the applicant has had, and continues to have, incentive to cease residence in Australia:

    a.The applicant had reasonable explanations for why the applicant chose Australia as a study destination, for valuing Australian education and the experiences that brings, and for having made a selection of education providers;

    b.The applicant has close family members and friends outside Australia, which include his wife and daughter in India;

    c.The applicant does not have close family members in Australia;

    d.The applicant has articulated a plan to utilise the skills and knowledge gained in Australia in pursuits outside Australia;

    e.That plan is an ambition to join his uncle’s automotive business and the automotive industry in India more generally.

14. The applicant gave evidence at hearing that before he arrived in Australia on a subclass 573 student visa in 2008 to study a Masters in Network Systems, he was working as a software engineer having graduated with a Bachelor degree in the information technology field.

15. As suggested, the Tribunal readily understood his proposal to study a master’s in the information technology field as being a natural extension of his bachelor’s level study and his work as a software engineer.

16. He provided a copy of the delegate’s decision to the Tribunal and agreed with the observations of the delegate made in that document: that he abandoned the master’s course after around 7 months. He also conceded that he held no relevant enrolment in a higher education course from that time onwards, despite continuing to hold the Subclass 573 student visa.  As explained, he placed himself in breach of Condition 8516 for the remainder of the duration of that visa because he could not continue to meet the primary criteria for the subclass of visa he held.  He had no meaningful response to this when it was put to him.

17. The applicant gave evidence that he was ‘lost’ during this time and as suggested to him, the Tribunal has difficulty accepting that he would abandon his career as a software engineer, which was built on the back of his bachelor degree in information technology, he said, in around 2001, and reinforced by his work experience as a professional software engineer.  He stated that he had no particular problem with the IT industry, and just wanted a change.

18. That change, on his evidence, took the form of choosing to study the trade of a motor mechanic in the VET sector in Australia.  He gave evidence which was not particularly detailed about an automotive business that his uncle had in India, which he would join.  He did not convincingly explain why he completed a VET sector course in frontline management.  He also completed VET sector study in general management and a Certificate III in the automotive trade. 

19. On his evidence, he married his wife in India in 2013 and she lived in Australia for six months until June 2014, at which time she was pregnant when she returned to live in India.  Their daughter was born in India.  The applicant gave vague evidence as to why they did not return to live with him in Australia.  He indicated that he wanted to return to India, and that is why they did not join him here.

20. The applicant gave evidence that he obtained a Subclass 485 visa in October 2013.  The tribunal observed that the 485 visa allowed the applicant wide latitude to work and study.  On his evidence, he did not study during the validity of that visa, to February 2015 (f.2).  His evidence was that he worked as a machine operator and cabinet maker.  He agreed that he had nominated the occupation of motor mechanic for the 485 visa (f.3), and explained that he could not find a job in his chosen occupation.

21. As suggested at hearing, by 2014 the applicant had a wife and child in India, along with other close family members, and his wife’s close family members, all of whom would constitute distinct incentive for him to return.  Being unable to find a job in his nominated occupation, and by his conduct, not choosing any further study, the applicant continued to reside in Australia to work as a machine operator in a role which did not materially contribute to his stated plan to enter the automotive industry in India, which had informed his earlier choice to study automotive courses in the VET sector.  As suggested, the tribunal sees little value in the applicant prolonging his separation from his nuclear family in order to pursue work in Australia that did not materially contribute to a successful start in the automotive industry in India which he claims was and is his ambition.

22. When the applicant’s 485 visa was to expire in February 2015 (f.2), he agreed that it was at that time that he again proposed to the government that he wished to study.  As suggested, the Tribunal considers that the applicant had study rights while holding the 485 visa and did not study, suggesting that there was no further study in Australia that he considered was of value to his claimed future plans.

23. He gave evidence that he proposed a certificate IV and diploma in the VET sector, again in the automotive field.  His evidence was that he did not complete the certificate IV, and never started the diploma.  As suggested, the COEs for both courses he provided indicate that the second course, the diploma, was to finish in May 2016 DIBP (ff.43-44), now more than four months past.  As suggested, the study he had proposed for the visa would have been complete if he had not stopped studying while awaiting the Tribunal.

24. As suggested, a choice not to study, when there was no legal bar to studying, is an indication that the applicant might be more interested in the substantive student visa, than in the study itself.

25. When this was put to the applicant, he indicated that he did not wish to study anymore, and wished to return to India.  He agreed that he had no COE which was not expired or cancelled, and no relevant enrolment, or offer of enrolment, in a principal course.  He was advised of the requirements of cl.572.222 and cl.572.231, and informed that they were mandatory criteria for the Subclass 572 visa and it appeared that he did not meet those mandatory criteria.  He had no meaningful response.

26. As suggested, the Tribunal finds that the VET sector certificate IV and diploma originally proposed for the visa now under consideration held little appreciable value to the applicant, which is why he did not pursue those courses while awaiting the Tribunal despite there being no legal bar to him studying.  

27. On the evidence, the applicant was content to remain lawfully in Australia, on a bridging visa, while waiting out the Tribunal process.

28. As suggested, that conduct is inconsistent with an intention to stay in Australia temporarily to gain skills and knowledge for a future intended to be outside Australia, where the applicant also claims he wishes to cease residence in Australia to be reunited with his offshore wife and child, and to join a business that is already waiting for his arrival.

29. It has been around one and a half years since the applicant sought the visa and proposed further study and in that time the applicant has not acquired any further material skills or knowledge.  As suggested, this causes the Tribunal significant doubt that the applicant intends to acquires skills and knowledge, or intends to use skills and knowledge acquired outside Australia.

30. As suggested, the applicant’s own conduct indicates that when he holds a visa that does not require him to study (the 485 visa and his current bridging visa), he does not study.  This reinforces the suggestion given by the delegate (f.3) that the value of study proposed is not related to any future plans outside Australia, but to the fact that proposing to study supports the grant of a further student visa, and further stay in Australia.

31. For the reasons above the Tribunal rejects the applicant’s central claim against the Genuine Temporary Entrant criteria: that he has the intention to leave Australia, because he has an intention to first acquire skills, knowledge and qualifications in Australia to be used outside Australia, and then to leave Australia.  The presence of the applicant’s wife and child outside Australia (along with other family members) ought to have given him additional distinct incentive to utilise his time on the 485 visa and while awaiting the Tribunal process to acquire a set of desired skills and knowledge and then to depart.  His own conduct indicates that he is not working towards that claimed departure.

32. For these reasons, the Tribunal finds that the applicant had proposed the study, and sought the visa, to extend what has already become a prolonged stay in Australia, since 2008; and the applicant has no intention of ceasing his residence in Australia in the foreseeable future.

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 not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

34. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses.

35. Quite separately, the applicant does not meet cl.572.222 and cl.572.231, both mandatory criteria for the visa.

36. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Adrian Ho
    Member