Gautam (Migration)

[2022] AATA 2717

Gautam (Migration) [2022] AATA 2717 (26 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashik Gautam

REPRESENTATIVE:  Mr Amrit Tewari (MARN: 1382952)

CASE NUMBER:  2114132

HOME AFFAIRS REFERENCE(S):          BCC2020/2385297

MEMBER:Joseph Francis

DATE AND TIME OF

ORAL DECISION AND REASONS:         26 April 2022 at 12:27 pm (WA time)

DATE OF WRITTEN RECORD:                27 June 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 27 June 2022 at 10:05am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant was not a genuine applicant for entry and stay as a student – applicant has not completed a course of study –use the student migration program to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 September 2021 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 26 April 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. On 29 December 2020 you applied for a Student (Temporary) (Class TU) visa.  The decision maker from the department, we call him the delegate, refused the visa application on 23 September 2021.  On 13 October 2021 you then applied to this Tribunal for the decision to be reviewed.

4. Your application was refused because the delegate decided you did not satisfy the requirements of clause 500.212(a) of schedule 2 to the Migration Regulations. Now, I do not need to go into the details as to those reasons other than to say that I have read the decision and I understand you have read the decision and I am aware the delegate did not accept that you were a genuine temporary entrant as a student.

5. When making a decision about your application I must consider everything that you have provided to both the department and to the Tribunal and, of course, everything that you provided to me today by way of oral evidence and your arguments as to why your visa should be granted, and I mentioned that I am considering your application as if I am the original decision maker and I must follow the same laws and regulations, of course, that the delegate was required to follow.

6. I have invited you to a hearing today because I was not able to decide on the information before me and I wanted to hear from you in person at least in this case over the phone using Microsoft Teams, so we can discuss your application, and I believe I have given you the opportunity to give evidence and present arguments relating to the issues in your particular case.

7. As far as the hearing process is concerned I had to consider if it was reasonable to hold a hearing by telephone having regard to whether or not you would receive a fair opportunity to present arguments and the fact that you are over east and I am in Western Australia and how good your English might be and whether there were issues understanding each other.  And I note your English was fine and I do not believe we had an issue understanding each other.

8. Now, because you are currently enrolled the only determinative issue for me is to decide whether you are a genuine applicant for temporary entry and stay in Australia as a student. And I have had to consider all of the documents and information you have provided in accordance with clause 500.212 of the Migration Regulations as well as another document I mentioned to you, Ministerial Direction number 69, which covers assessing the genuine temporary entrant criteria for student visas. Together these two instruments tell me I need to assess whether you are a genuine temporary entrant to stay as a student along with whether I believe you may intend to comply with the visa conditions.

9. The other issue I need to talk about is I made you aware that I had access to your PRISMS record and I explained this to you and I also explained that I am required to make you aware of that under sections of the law that cover adverse information.  Because depending on what you may say to me about your enrolment history it might be part of the reason or the reason for me to affirm the decision under review.

10. We went through your PRISMS record notably that you first arrived here in 2015 and you have completed some short UTAS university access courses.  You then enrolled in a Masters of Business Administration, which you have swapped over towards a Masters of Professional Accounting noting that you have an accounting degree already. 

11. You failed to finish either of those two Masters courses and you were given extensions and re-enrolled in different courses between your MBA and your Masters of Professional Accounting.

12. However, you have now enrolled in a Diploma of Community Services and I explained to you why I was concerned that in the six years that you have been in Australia you have failed to complete either of the two Masters courses you have switched between and how you now want to undertake study in a completely new direction.

13. You tell me you wish to stay here in Australia until 2026, which would make your time here over some 11 years to finish a course for which you did not originally come here to start.  So I have to consider all of this, as I mentioned, along with Ministerial Direction number 69, including your circumstances and your circumstances here in Australia and in your home country.  And I have no evidence that the course of study that you are now wanting to undertake is not available in your home country.

14. I have no reasonable reasons from you as to why you have not undertaken that study in your home country.

15. I have to consider what extent of personal ties you have either here or in your home country and you have told me that you have a brother who is a New Zealand permanent resident and that now resides in Australia.  I also have to consider your potential circumstances in Australia and whether there is a strong incentive for you to remain in Australia. I cannot be satisfied now that you are not using the student visa program as a way of getting around the intentions of the migration program.  Likewise, I am not satisfied you are not using the student visa to maintain ongoing residence here in Australia.

16. I also have to consider your living arrangements and you told me that for a period you were homeless and relied on the Salvation Army for housing and food.  And I make note of that because I have no evidence to indicate that you can afford the course of study you now wish to undertake.

17. I explained that I have no evidence that you have researched the employment prospects of this new course direction and career opportunities for when you return to India. And on balance when I consider everything the evidence that you have given me and to the department and what you have said today, and I consider your immigration history I have to heavily weigh your failure to complete the course you initially came here to do six years ago. And in making my findings I have to consider all of the information I have independently and cumulatively, that unfortunately I have to find that in relation to your intention to genuinely stay in Australia, that you are not a genuine entrant for temporary stay as a student as required by clause 500.212(a).

18. Given that finding the appropriate course of action is for me to affirm the decision under review and not to grant the applicant a subclass 500 student visa.

    DECISION

19. The Tribunal affirms the decision under review.

    Joseph Francis
    Member