Devarakonda (Migration)

[2021] AATA 989

Devarakonda (Migration) [2021] AATA 989 (26 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shiva Shankar Bharath Devarakonda

CASE NUMBER:  1926943

HOME AFFAIRS REFERENCE(S):         BCC2019/3869881

MEMBER:D Triaca

DATE:26 February 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 26 February 2021 at 4:43pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – gap in enrolments – value of current course to future studies – applicant’s limited ties to his home country – consistent employment in Australia – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.211

CASES

Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16
Vu Vu & Ors v Minister for Immigration and Anor [2020] FCCA 2292

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 4 September 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 5 August 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).

4.       The applicant appeared before the Tribunal on 26 February 2021 to give evidence and present arguments.

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

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.       This is made plain from the following statement of Logan J in Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16 at [4], ‘Of course the Minister’s directions were a relevant consideration. How could it be otherwise in light of s 499 of the Act? But they were guidelines. Reading them as a whole, the Minister did not purport to elevate them beyond that, only to offer guidance to the end of consistency in public administration. Moreover, as Derrington and Thawley JJ explain, the Minister explicitly counselled against a mechanical, “checklist” approach. He recognised that factors might not be all one way; hence his reference to, “on balance”. All this was done in respect of a visa eligibility for which has as a criterion a subject which inherently involves, “a matter of opinion or policy or taste” in terms of satisfaction as to whether an applicant is a genuine student.’

12.       Whilst not defined in the Regulations, the word genuine may be taken to mean ‘authentic, real or true’ in according with its ordinary and natural meaning. The Regulations specify two constituent elements of a genuine student visa applicant. First, a genuine applicant is one who intends genuinely to stay in Australia temporarily. The applicant must demonstrate an intention to stay in Australia for a limited time only, not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student.[1] Secondly, a ‘genuine applicant’ is a person who intends to comply with any conditions to which the visa may be subject.[2]

[1] See Singh [2019] (Migration) AATA 2993 at [13]

[2] See the discussion of the meaning of ‘genuine applicant’ in Vu Vu (Migration) [2019] AATA 5740 (18 December 2019) [22] – [25] upheld on appeal in Vu Vu & Ors v Minister for Immigration and anor [2020] FCCA 2292

13.       The issues in this case arose in the following circumstances, the applicant is a 34 year old citizen of India. He first arrived in Australia in July 2011. He has resided here since that time on a series of temporary visas and associated bridging visas. On 5 August 2019 he applied for a a delegate of the Department refused his application (delegate’s decision). He subsequently applied to the tribunal for a review of the delegate’s decision and he provided the tribunal with a copy of that decision.

14.       The tribunal has concluded that the decision to refuse the applicant a student visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:

(a)The delegate’s decision record;

(b)The applicant’s original written visa application;

(c)The oral evidence and arguments of the applicant presented at the hearing;

(d)Submissions made by the applicant’s representative.

(e)All written material filed by or on behalf of the applicant in relation to this case;

(f)Other relevant documents on the Tribunal and Department files;

(g)The applicant’s written response to the tribunal’s invitation to provide further information pursuant to s.359(2) of the Act;

(h)Statement of Purpose addressing GTE criteria.

(i)Evidence of current study progress and confirmation of enrolment certificates.

15.       The applicant has a good academic record. He completed a Bachelor of Information Technology at the Avanthi Institute of Engineering & Technology in 2007. Since arriving in Australia, he has completed a General English course, a Master of Information Systems at Curtin University and an IELTS Intensive Preparatory Course. In 2017 he was granted a 485 Temporary Graduate visa. He applied for a further student visa, the subject of this application, on 5 August 2019 and on 4 September 2019 his application was refused.

16.       The applicant has worked part time in Australia as a network engineer. He states he has worked for 2nds IT since March 2018. At the time of his application, he was proposing to study a Diploma of Information Technology Networking and an Advanced Diploma of Network Security at Pacific College of Technology in New South Wales. He did not complete either course. He states that upon the refusal of the delegate’s decision the course provider cancelled his confirmation of enrolment and he was unable to secure any further enrolment until very recently, when the tribunal’s hearing date was certain. Whilst the tribunal accepts that the applicant’s enrolments ceased following the delegate’s decision, it does not follow that the applicant was unable to obtain any alternative enrolment. He provided no objective evidence in support of the proposition that he was prevented from study on account of the delegate’s decision. I consider that the delegate’s refusal of an application is unlikely to operate so as to prevent the applicant from continuing his studies whilst waiting for the tribunal’s decision. Whilst the applicant’s college provider may have cancelled his enrolment, it does not follow that he was unable to study elsewhere from September 2019 to February 2021. I also stated that this delay in returning to study was due to COVID. Whilst I accept that COVID may have had some impact on course providers during 2020, many providers were able to pivot to an online learning environment during the course of 2020 and, in any event, it does not explain the applicant’s failure to study between September 2019 and March 2020. During this period, he has worked and lived in Australia. I consider not continuing to study is a deliberate choice on his part and is not due to circumstances outside his control. In the circumstances, I consider the applicant’s failure to undertake any form of study between September 2019 and February 2021 weighs against granting the application.

17.       The applicant has recently enrolled in a Graduate Diploma of Management at Pacific College. The fact that the College recently accepted his enrolment casts doubt on the applicant’s position that he has been unable to enrol in study on account of the delegate’s decision in September 2019. He intends to complete this course by February 2022. In relation to his plans following that course, he says he hopes to find work and broaden his skills and also enrol in a PhD program in either Australia, Canada or the USA. He has some family connection to USA as his sister resides there. He says that the PhD is likely to take approximately 5 years to complete.

18.       In light of his future plans, there seems no utility in the applicant spending a further year in Australia to complete such a course. He completed a Master of Information Systems Technology in July 2017. It seems to the tribunal that at any time since then it was open to the applicant to embark on PhD study. Instead, he chose to work on a 485 visa and only at the completion of that visa did he attempt to return to study. He has not completed any study in over 3 and a half years. There is no evidence that the Graduate Diploma of Management is a requirement of his proposed PhD study. The tribunal does not consider that the applicant has demonstrated there is value in his completing a Graduate Diploma course in Australia.

19.       In the circumstances, the tribunal does not consider the proposed study It is not consistent with his level of education. The tribunal does not accept that completing the course will improve the applicants’ employment prospects in his home country or a third country. It follows that the tribunal does not consider that the proposed course will increase the applicant’s remuneration in his home country.

20.       The applicant’s plans for the future are vague. This causes a further problem for the applicant as it without certain plans for the future, it is difficult to assess the value of the proposed study to his future. Whilst the applicant is steadfast in his evidence that he intends to study a PhD, it is also the case that he has not taken any steps towards doing so since completing his Masters in 2017. He is also uncertain as to whether he will complete the PhD in Australia, Canada or the United States. I infer from this that his plans are not well developed. Further, he also has hopes to work in the IT Industry. He says that during 2021 he intends to complete certifications in UCNE, a network engineering security certification and AWS which is a cloud computing certification. The purpose of obtaining these certifications is to assist him in his future employment. He states he hopes to work in cyber security.

21.       I consider that the applicant is unsure what the future holds. It seems that the applicant hopes to study a PhD but would also pursue a suitable employment opportunity if one arose. The difficulty for the applicant on this application is that none of his plans revolve around returning home to India. The applicant’s parents currently reside in India. However, he states that they are in the process of applying to relocate to the USA where his sister resides. His fiancée lives in India. However, she works for an international company and he states that she has ‘many options’ and would most likely join him in the USA. He has ties to the Hindu religion, but I consider he does not need to go home to practice it. I consider that the applicant’s ties to his home country are minimal and he has no significant incentive to return home.

22.       There is no specific evidence to suggest the applicant has personal ties to Australia that operate as a strong incentive for him to remain here.

23.       There is no evidence in relation to the applicant’s circumstances in his home country relative to others there.

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

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

26.       The applicant has a reasonable understanding of living in Australia. This is not surprising noting the length of his stay here. He has considered studying in his home country but states there are no similar courses available to him there, which is a reasonable reason for not undertaking further study in his home country. In any event, his plans for future study include plans to study in either Canada or the USA if not Australia.

27.       The applicant’s economic circumstances are that he works in Australia as a network engineer. He seems to have been able to find consistent work in Australia including previous employment as an Assistant Manager at a fish and chip shop between 2012 and 2016. He states he has property in a house and land in India. The tribunal does not consider overseas owned property constitutes an incentive for the applicant to return home. Property may be sold or retained and utilised to produce income. Neither scenario requires the physical presence of the applicant. The tribunal does not consider fact the applicant works part time in Australia operates as an incentive to remain here, notwithstanding that earning Australian dollars in ordinary employment may hold some attraction to him. The reality is that his plans in the short to medium term do not involve returning to India so there is little utility in making a comparison of the economic factors in both countries. The tribunal considers the evidence is insufficient to conclude that economic circumstances operate as a significant incentive for the applicant to return home or remain here. They are neutral to the application.

28.       The applicant has returned to India on two occasions without any issues. He appears to have complied with the conditions of his visas. The tribunal makes no adverse findings in relation to his travel or immigration history.

29.       There do not appear to be any other relevant matters to the application.

30.       The tribunal has considered all the evidence before it. It does not consider the application to be a genuine applicant. Simply put, the proposed Graduate Diploma of Management does not appear to serve any real purpose when the applicant’s future plans are considered. I do not consider that such a Graduate Diploma is a prerequisite for the PhD. If the applicant prefers to work, his Master of Information Systems, together with the certifications he intends to study and his relevant IT work experience should see him well placed to find suitable employment in his home country or a third country. In circumstances in which there is no apparent reason to engage in the study, which is at a level below both his previous university study and his future intended study, the tribunal infers that the purpose of the application is to extend the applicant’s stay in Australia. In this regard, the tribunal notes that the applicant has resided here for close to a decade and it is difficult to reconcile such a lengthy stay with the meaning of temporary.

31.       One further matter. In submissions, the applicant’s representative suggested that in refusing the application, the Department had prevented the applicant from undertaking further study and effectively ‘wasted’ 18 months of his life, and that I should take this into account. I reject this submission. Firstly, there is no objective evidence to support the proposition that the applicant was unable to study during the 18 month period. Secondly, the applicant appears to have utilised his time to work in relevant IT employment which should assist him in future. Third, in 2017 the applicant elected to pursue a 457 visa and work in Australia. Whilst he was entitled to do so, if studying a Graduate Diploma of Management was truly in his interests, he could have elected to study such a course at that time rather than work.

1. 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).

2. 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.

3. 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

4. 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;

   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.