Baddam (Migration)

[2020] AATA 6133

Baddam (Migration) [2020] AATA 6133 (12 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anudeep Reddy Baddam

CASE NUMBER:  1933443

HOME AFFAIRS REFERENCE(S):          BCC2019/4959802

MEMBER:Elizabeth Tueno

DATE:12 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 12 November 2020 at 6:29pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa history – previous attempt to apply for Australian permanent residency – length of time onshore in Australia – value of proposed courses – inconsistent with current level of education – future plans – already attained the necessary qualifications – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 Home Affairs on 12 November 2019 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 3 October 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.

3. 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). The delegate was not satisfied that the information provided by the applicant demonstrated that he met the genuine temporary entrant requirement for the grant of a student visa.

4. The applicant appeared before the Tribunal on 29 September 2020 by telephone due to the Covid-19 restrictions to give evidence and present arguments. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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?

8. 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.

9. 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.

10. The Tribunal has had regard to the applicant’s oral evidence and his various written statements, the written submissions of his registered migration agent, a copy of the Departmental file as well as to all of the various documents the applicant has submitted to the Tribunal.

11. The applicant is a 29 year old single man from India.  He arrived in Australia on 14 November 2014 on a student in order to study a Master of Business Administration at Charles Sturt University.  He did not complete this course but instead transferred to a Master of Commerce (Marketing) at the same university.  He was then granted a two year Subclass 485 temporary graduate visa, which was valid from November 2017 until November 2019.  The applicant then sought this further student visa in order to study a Diploma and Advanced Diploma of Leadership and Management at Dalton College.  He completed 3 units of the Diploma course but did not complete it.  Instead, he transferred to Australian Capital College, where is currently studying a Diploma and Advanced Diploma of Leadership and Management, which will end on 4 April 2022 (“the proposed courses”).

12. The applicant said in his completed s.359(2) questionnaire that the education provided in India is “poles apart” from Australia.  He said that in India, the focus is simply on the marks attained by students rather than the knowledge they learn.  He said students in India do not get to explore “innovative things” and there an expectation that students will simply write down the answers as dictated by the lecturers.  He said in order to be a successful businessman, he needs to be more innovative and needs to adapt to “the situation” at a faster pace.  He believes the education system in Australia provides students with an opportunity to explore more and the adapt to the “latest techniques”.  This was the same response that he provided to the Department.  The Tribunal accepts that the quality of education in Australia is different to that of India.  It accepts that applicant’s evidence that he believes he will be, in effect, better prepared to go into business with the knowledge gained from Australian qualifications.  For these reasons, the Tribunal accepts that the applicant has sound reasons for not studying the proposed courses in his home country of India. 

13. In relation to his personal ties to his home country, the Tribunal takes into account that the applicant’s family resides in India including his parents and younger brother.  In his genuine temporary entrant statement to the Tribunal, he said that as the eldest son he is responsible to look after his family.  He wants to return to India to take care of them after he completes his studies.  He has returned to India on three occasions for a total of 116 days in the last 6 years.  While the Tribunal accepts that the applicant does have familial ties to his home country, it considers that the applicant has been able to maintain his ties to his family whilst residing in Australia for a long period of time and as such, the Tribunal does not consider that his personal ties would be a significant incentive for him to return to his home country.

14. In relation to his economic circumstances, the Tribunal accepts that the applicant’s family owns several properties, which is supported by relevant documents.  It accepts the applicant’s statement in his genuine temporary entrant statement that his parents “are financially strong, I have the residential properties, which will generate the income and all my living and education from schooling to till date was looked after by my father, he is working as a commission agent and my mother was self-employed.  My young brother completed his civil engineering and doing his job on study in earthquake research team.  All my Family members are well settled and finically stable” [sic].  Accordingly, the Tribunal does not consider that the applicant’s economic circumstances would be an incentive for him not to return to his home country.

15. The applicant has no concerns about military service commitments or about any political or civil unrest in his home country.  The Tribunal takes this into account.

16. The Tribunal has considered the applicant potential circumstances in Australia.  He has now been in Australia for 6 years.  He has no family in Australia.  He his parents have paid for his tuition fees while he pays for his living expenses through employment here.  He currently works for two different Domino’s Pizza stores (at different times) since June 2018.  He currently earns around $700 to $800 per week.  On the face of it, the applicant does not appear to have any substantial ties to Australia that would be an incentive to want to remain here. 

17. However, this is at odds with the fact that applicant admitted to having explored and applied for Australian permanent residency prior to applying for the temporary graduate visa in 2017.  He explored permanent residency for around 1 ½ years before he decided not to pursue it, as he realised he would not have the points required to get residency.  He then applied for and was granted the temporary graduate visa and now is applying for this student visa. 

18. It is this visa history (as well as the lack of perceived value that the proposed courses have to the applicant’s future as discussed below) that raises concerns for the Tribunal that the applicant may be using the student visa to maintain ongoing residence in Australia and that in doing so, he is attempting to circumvent the intentions of the migration program. 

19. The Tribunal has had regard to the value of the proposed course to the applicant’s future.  Prior to coming to Australia to study, the applicant had completed a Bachelor of Mechanical Engineering course in 2013.  During his time in Australia, he has completed a Master degree in Commerce (Marketing).  He is now studying at a vocational Diploma and Advanced Diploma level, because, although he already has marketing skills, he will “gain knowledge and skills in leadership and management”.  However, the applicant has already undertaken a number of management units in his Master degree including management theory and practice, management of change, managing for sustainability, marketing management and human resource management.  For these reasons, the Tribunal does not consider that the proposed courses are at a level consistent with his current level of education.

20. In relation to the applicant’s future plans, he said at the hearing that he wants to start his own business in manufacturing producing metal goods.  He had a “rough” idea about this business and he already has 3 or 4 friends doing this in India.  He said it would cost him the equivalent of around $200,000 to start the business and that his parents will help sponsor the business.  Following the hearing, the applicant provided a further submission dated 6 October 2020 in which he said his parents own commercial properties in India which will be used to help generate income and set up his business.  One of these properties he is considering using for his business.  He also said that his parents would help him financially and the remainder of the funds would be arranged by taking out a loan from the Central Government of India as they can facilitate a loan for him in the sum of AUS $575,306.40 in order for him to set up the business. 

21. The applicant also said that he planned everything in order to set up his business in India and he included a business plan, which shows the applicant has clearly thought through the business.  The business plan stated that it would be plastic manufacturing business using recycled and reused plastic to make plastic and plastic products. 

22. In his questionnaire response, he said that studying leadership and management would give him “vital knowledge and understanding of organisation, managerial, communication and marketing concepts for a career in any industry or organisational role”.  In his genuine temporary entrant statement dated 23 June 2020, he said the course[s] will take him to a new level in developing aspects of leadership and management and that his career goal is to “excel in leadership and management sector”.

23. The Tribunal accepts that the applicant genuinely holds thought out plan to start his own manufacturing business, despite the lack of mention of this business idea in his questionnaire response or in his genuine temporary entrant statement to the Tribunal.  However, what the Tribunal has doubts about is the utility of the proposed courses for this business and whether they will assist him in starting and operating this business.  The Tribunal considers that the applicant has already attained the necessary qualifications in Australia and his home country in order to start and operate this business. 

24. The Tribunal considers that the proposed course has only minimal relevance to his future employment endeavours in his home country, given the lack of details provided about the number and types of employees he will need to engage or about the organisation’s structure.

25. It follows that the Tribunal does not consider that qualifications from the proposed courses will have a substantial effect on the applicant’s remuneration in his home country or a third country. 

26. Lastly, the Tribunal has considered the applicant’s immigration history.  Around the time the applicant applied for his graduate temporary work visa in 2017, the applicant had also been exploring and in the process of applying for permanent residency in Australia.  At the hearing, he said that he realised he would never get permanent residence here because the points required had increased and he would never reach the required number of points.  Pursuing the path to permanent residency for a year and a half shows the applicant was very much interested in living in Australia permanently.  And whilst the applicant has acknowledged that it is unlikely that he would have secured residency here, instead of returning to his home country, he has applied for a further student visa and is seeking to study here until at least April 2022.  This raises concern that the applicant is using the student visa to maintain ongoing residence in Australia and in doing so, is attempting to circumvent the intentions of the migration program.  The Tribunal has this concern despite the applicant’s assertion that he wants to return to India.  The Tribunal considers that the applicant’s actions suggest an intention to stay in Australia.

27. The Tribunal is also concerned that the applicant has spent six years onshore in Australia (2188 days) and during that time he has returned to his home country for a total of 116 days over the course of three visits.  This suggests that whatever ties the applicant has to his home country are not a significant incentive for him to return to India.    

28. The Tribunal has also had regard to the medical documents that were provided to the Tribunal after the hearing.  The Tribunal has not been assisted in its findings by this material. 

29. The applicant has not raised any other relevant matter for consideration.

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

31. 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.

32. 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

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

    Elizabeth Tueno
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.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

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.