Danthuluri (Migration)

[2023] AATA 226

Danthuluri (Migration) [2023] AATA 226 (31 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Laxmipathi Vivek Varma Danthuluri

REPRESENTATIVE:  Mr Raja Ramesh Reddy (MARN: 1804195)

CASE NUMBER:  2200182

HOME AFFAIRS REFERENCE(S):          BCC2021/694022

MEMBER:Dominic Triaca

DATE:31 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 31 January 2023 at 3:41pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – plans to start a business in Australia – applicant changed to Vocational courses – course cancellations – unsatisfactory course progress – no benefit to future career – maintaining ongoing residence in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, 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 21 December 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 December 2021. 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 (Cth) (the Regulations).

4. The applicant appeared before the Tribunal on 24 January 2023 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 assisted in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Genuine applicant for entry and stay as a student (cl 500.212)

8. 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?

9. 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.

10. 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.

11. The Applicant is a 28 year old citizen of India. He arrived in Australia on 23 July 2017 and has resided here since that time on student and associated bridging visas. He applied for a student visa, the subject of this application on 2 December 2021. On 21 December 2021 a delegate of the Minister for Home Affairs refused his application (delegate’s decision). He subsequently applied to the Tribunal for a review of the delegate’s decision and provided the Tribunal with a copy of that decision.

12. The Tribunal has read and had regard to the documents provided by the Applicant to the Department and the Tribunal including the applicant’s written response to the Tribunal’s invitation to provide further information pursuant to s.359(2) of the Act, the delegate’s decision, the original visa application, evidence of previous overseas study, evidence of enrolment in Australia, Confirmation of Enrolment (COE), evidence of health insurance and medical records.

13. The Applicant is enrolled in a Diploma of Leadership and Management at Sapience College. It is due to be completed on 10 October 2023. By this application he is seeking to remain in Australia to enable him to complete this course.

14. The Applicant’s evidence is that following completion of his current enrolment he intends to remain in Australia for an extended period. He intends to study an Advanced Diploma of Leadership and Management that he should complete in 2024. He also wishes to undertake a cooking course. He says that following his further study he intends to start a food truck business in Colac, in Regional Victoria. He anticipates that he will run this business for 2 years before returning home to India in 2026. He says in India he will commence a food related business. He later stated that he would seek a role managing a restaurant in India.

15. The Tribunal accepts that the applicant appears to have considered his future in some detail and has serious aspirations to start a food truck business in Colac. He says that he has previously cooked food for the local people, and they have encouraged him in this pursuit. It seems to the Tribunal that the Applicant has not yet developed a detailed plan for his future in relation to his return to India.

16. The Applicant holds a Bachelor of Mechanical Engineering from Acharya Nagarjin University. He completed it in 2015. He then worked as a web designer before travelling here.

17. In Australia he enrolled in but did not complete a Master of Information Technology at Charles Sturt University. He says that he completed 2 semesters but did not complete this course due to circumstances of being unable to study as his mother passed away and he ran out of money and was unable to pay fees. When asked why he had not returned to study at this level he says that he realised he would be required to complete a further year of study and cost him approximately $38,000AUD and he decided that this time and cost could not be justified.

18. He has also enrolled in and failed to complete a Diploma of Leadership and Management at Central Australian College in Hobart in 2020 and the Gen Institute in 2021. He says that he did not complete the course in Hobart due to accommodation issues in Hobart causing him to move to Melbourne. He says that he did not complete the course at Gen Institute due to poor quality and unhelpful teaching.

19. He recently commenced his current enrolment in October 2022. This is his third attempt at a Diploma of Leadership and Management. He says he has completed 2 units thus far.

20. The Tribunal is concerned by several aspects of this application.

21. The Applicant has a poor academic record since arriving here. For various reasons he has been unable to complete any of the courses he has enrolled in since arriving. He is currently on his third attempt at studying a Diploma of Leadership and Management. Despite his assurances that he would complete the course on this occasion, the Tribunal has no confidence that he is likely to do so.

22. Even if the applicant were to complete the current enrolment and his proposed future enrolment, the Tribunal is not convinced that he is likely to gain any benefit from so doing. He has good employment prospects at home on the strength of his completed Bachelor Degree. He has not demonstrated how the Diploma of Leadership and Management or even an Advanced Diploma of Leadership and Management is likely to improve his employment prospects as his prospects are already good. It follows that the Tribunal does not accept that his current or proposed study is likely to improve his employment prospects, nor is it likely to increase his remuneration at home.

23. The Tribunal considers that if the current and proposed study was of any real value to his future he would have completed these coursed during his 5 years living in Australia to date. That he has been unable to do so suggests that he has lacked focus and drive in his studies since arriving here. He is clearly a capable student as evidenced by his Bachelor Degree. However, since arriving here there is nothing to suggest that he has ever applied himself to his studies for any length of time.

24. Further, the Tribunal does not consider that the current and proposed further study is likely to assist the Applicant in his plan to start a food truck business in Colac. It seems to the Tribunal that this can be pursued without any further study in Australia. The Applicant has not demonstrated how his leadership and management studies are relevant to the Food Truck industry.

25. The course may have some benefit to his goal of running a restaurant. He may benefit from skills and knowledge such as understanding how to lead a team. However, the Tribunal places minimal weight on this possible benefit as the Applicant’s plans for returning home to India are some years away and are quite vague. 

26. It weighs against the Applicant that he is studying at a lower level than his University level study in India and his previous Australian enrolment at Charles Sturt University. He has made no academic progress since arriving here more than 5 years ago and this is concerning to the Tribunal.

27. The Tribunal accepts that the applicant has reasonable reasons for seeking to study in Australia in preference to his home country. The difficulty for the applicant is that he is intending to study at a relatively low level since in a course with no clear value to his future.

28. There is no specific evidence in relation to the Applicant’s circumstances in his home country relative to others there.

29. The Applicant states, and the Tribunal accepts, that he has no concerns in relation to civil or political unrest in his home country.

30. The Applicant states, and the Tribunal accepts, that he has no concerns in relation to potential military service commitments in his home country.

31. The Applicant appears to have a reasonable understanding of living in Australia and his course provider. This is not surprising as he has resided here for over 5 years and has commenced his course.

32. The Applicant’s family in India are his brother and father. He says he speaks to them often and has a good relationship. The Tribunal accepts this is the case. However, he has resided here since 2017 and is seeking to further extend his time here. It does not appear that his family ties to India are operating as a significant incentive for him to return home.

33. There is no specific evidence to suggest that the Applicant has family or personal ties to Australia that are operating as a strong incentive for him to remain here.

34. The Applicant has worked in Australia as a ‘team member’ and a kitchen hand. He has some family financial support. There is nothing to suggest that his economic circumstances are operating as a significant incentive to remain here.

35. The Applicant has travelled between Australia and India without any issues. He appears to have complied with the requirements of his student visas since arriving here. He may have breached his previous student visa by downgrading his studies from Masters to Diploma Level but I do not weigh this against him. In the circumstances the Tribunal makes no adverse findings in relation to his travel or immigration history.

36. The Tribunal has been provided with the Applicant’s medical records in relation to a broken leg suffered in September 2022. There is nothing to suggest that the Applicant’s progress has been hampered by his injuries. It may be that the Applicant has had some difficulty in studying to his full potential since that time. If this is the case, the Tribunal accepts that this is the case and does not weigh the fact he has devoted time to his recovery since his injury against him.

37. There do not appear to be any other matters relevant to the Application.

38. The Tribunal has considered all the evidence before it. It does not accept that the Applicant intends genuinely to stay in Australia temporarily. It appears that he is seeking to utilise the student visa as a means of extending his stay in Australia rather than derive any educational benefit. The Tribunal has no confidence he will succeed in his third attempt at the Diploma of Leadership and Management. Even if he does, the Tribunal does not accept that the course has any real value to his future. In all the circumstances the application is refused.

39. 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).

40. 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.

41. 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

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

    D Triaca
    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;

    d.whether 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.