Gundumalla (Migration)

Case [2023] AATA 1951

Gundumalla (Migration) [2023] AATA 1951 (24 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Praveen Kumar Reddy Gundumalla

REPRESENTATIVE:  Mr Jitesh R Parekh (MARN: 0639447)

CASE NUMBER:  2202143

HOME AFFAIRS REFERENCE(S):          BCC2021/109233

MEMBER:T. Quinn

DATE: 24 May2023

PLACE OF DECISION:  Melbourne

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

Statement made on 24 May 2023 at 2:49pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant was not a genuine applicant for entry and stay as a student –the regression of studies – poor academic record– in Australia for a long period time –use the student migration program to maintain ongoing residence – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. On 12 January 2021, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]

    [1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

  2. On 2 February 2022, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]

    [2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application

  3. On 17 February 2022, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]

    [3] Pursuant to sections 338(2) and 347 of the Act.

  4. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since making their application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 14 March 2023, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The s359(2) letter requests that a questionnaire (‘the questionnaire’) be completed by the applicant.

  5. The applicant responded to the s359(2) letter on 28 March 2023, including providing the completed questionnaire, which was within the prescribed timeframe.

  6. The applicant appeared before the Tribunal to give evidence and present arguments at a telephone hearing on 24 May…

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Details
AGLC
Gundumalla (Migration) [2023] AATA 1951
Case
[2023] AATA 1951
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a Student (Temporary) (Class TU) visa, subclass 500. The applicant, a 30-year-old Indian citizen, had been in Australia since November 2016 on successive student visas and a Temporary Graduate (subclass 485) visa, which expired on the same day the application under review was made. The decision maker had formed the view that the applicant was not a genuine applicant for entry and stay as a student, citing concerns about the regression of studies, a poor academic record, and the applicant's prolonged stay in Australia, suggesting the student migration program was being used to maintain ongoing residence. The review was heard by T. Quinn.

The primary legal issue before the court was whether the applicant was a genuine applicant for entry and stay as a student, as required by the relevant migration provisions. This involved assessing whether the applicant's stated intention to study in Australia was credible, considering his academic history, the duration of his stay, and the timing of his visa application. The court was also required to consider the application of a Direction issued by the Minister under section 499 of the Migration Act 1958 (Cth), and how its terms applied to the applicant's circumstances, while maintaining its independence as a statutory body to reach its own conclusions on the merits of the case.

The court acknowledged that the Minister's Direction was a lawful direction and bound the decision maker to consider it. However, it also recognised the established principle that such guidelines may not be relevant if the facts raised by an applicant do not engage the specific matters identified by the guidelines. In this case, the applicant's history, including his prior completion of a Bachelor of Information Technology in India and subsequent work experience, was considered alongside his prolonged stay in Australia on student visas and the timing of his application. The court noted that the applicant's application was made on the same day his Temporary Graduate visa expired, which, in combination with other evidence, raised concerns that he might be using the student visa program to maintain his residence in Australia rather than for genuine study purposes. The court was required to independently assess the applicant's claims and the evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Direction is a lawful direction of the Minister.[5] I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[6] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me. However, I recognise that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[7] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[8] [5] In accordance with section 499 of the Act. [6]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].[7]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).[8]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).CONSIDERATION OF CLAIMS AND EVIDENCE The applicant in this case is a 30-year-old male Indian citizen who first arrived in Australia on 17 November 2016 on a student visa.[9] He has remained onshore since that time on a second student visa and a Temporary Graduate (subclass 485) visa (‘the 485 visa’) which expired on 12 January 2021, the same day as he made the application which is the subject of this review.[10] The timing of his application (being the same day as the expiry of the 485 visa), taken in combination with other evidence set out in this decision, raises concerns for me that the applicant may be using the student visa migration programme to maintain residence.[9]See the questionnaire.[10]See the questionnaire and evidence at hearing. Prior to coming to Australia, the applicant completed a Bachelor of Information Technology (Computer Science and Engineering) in 2015 in India.[11] He then worked as a Systems Analyst from September 2015-July 2016 earning AUD6,200 per annum equivalent in India.[12][11]See the questionnaire and corroborating certificate in the Tribunal file. [12]See the questionnaire.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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