Katpally (Migration)

[2021] AATA 2261

Katpally (Migration) [2021] AATA 2261 (2 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanjay Reddy Katpally

CASE NUMBER:  1922352

HOME AFFAIRS REFERENCE(S):          BCC2019/1995439

MEMBER:Brian Camilleri

DATE:2 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 02 June 2021 at 4:23pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – multiple courses cancelled – gaps in studies – benefit of studies to future career – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359; 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 22 July 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 18 April 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 (a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant failed to comply with the temporary entrant criterion.

4. The applicant was due to appear by telephone before the Tribunal on Monday 1 February 2021 at 9:30 am to give evidence and present arguments. At 9:16 am the member received a message relayed by a Tribunal Officer sent at 8:44 am that a request for postponement of the hearing had been received and a copy of the request was attached a copy of a medical certificate under the letterhead of Primus Medical Centre, Homebush NSW signed by Dr. Shailendra Jhingran certifying that the applicant had acute pharyngitis and would be unfit for work/study today 31/01/2021 to tomorrow 02/02/2021 (the day after the hearing).

5. Given the last-minute application for postponement (on the day of the hearing) the Tribunal was sceptical that it should not rely on the authenticity of medical reason for which the Medical Certificate had been obtained.

6. The Tribunal instructed the Registry to contact the applicant and to indicate the proceedings would proceed and the hearing would not be postponed but the matter would be considered after the hearing opened.

7. The Member was available on the phone at 10:00 am waiting for the applicant to present himself or for the Registry to report any conversation that had transpired between the Registry officer and the applicant.

8. The Registry reported that attempts at contacting the applicant had been unsuccessful and these attempts had been made at 9:15 am, 9:30 am and 10:00 am but each time the call was “rung out” until it reached an automated voice message stating the applicant was unavailable.

9. In the absence of any further indication from the applicant the Tribunal decided to determine the application for review on the papers in the absence of the applicant at a hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 complied with the temporary entrant criterion.

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

1. 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?

1. 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.

2. 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.

Applicant’s Circumstances in Home Country

1. The applicant is thirty (30) years old. His parents live in his home country of India. Prior to arriving in Australia, he studied a Bachelor of Computer Science and Engineering (graduating in late 2012). He worked as an associate software engineer for four years (2012-2016) earning $2,400 per annum. In written submissions, he listed no assets.

Applicant’s Circumstances in Australia

1. The applicant first arrived in Australia on 20 February 2017 on a Student (Subclass) 500 Visa valid until 22 April 2019. He was due to study a Master of Information Technology degree.

2. On 18 April 2019 (four days before his visa was due to expire) he applied for a second Student (Subclass) 500 Visa. At the time he was enrolled in the following courses: (a) Diploma of Information Technology; (b) Advanced Diploma of Network Security. His application was rejected on 22 July 2019.

3. He listed annual living expenses of $21,600. He works as a customer services attendant earning $30,000.

Applicant’s Immigration History

1. Since his arrival in Australia on 20/02/2017 the applicant has made the following trips to and from Australia:

Trip	Departure from Australia	Arrival in Australia
1	Onshore	N/A
First Arrival	20/02/2017

1. The applicant’s non-travel pattern is notable particularly given he has been in Australia for 4 years and 4 months and has not ventured to visit his home country in this whole period notwithstanding COVID pandemic travel restrictions.

Applicant’s Academic Record and Progress

1. At the time of making its decision the Tribunal had available it the applicants academic record as set out in the Provider Registration International Student Management System (PRISMS) (as a 13.1.2021). It showed the courses undertaken by the applicant.

Course	Status
Master of Information Technology (12 subject) (Study Group Australia) [074616M], Actual Course Start Date: 20/02/2017 - Actual Course End Date: 10/10/2017	Cancelled
Master of Business Administration [084520C], Proposed Course Start Date: 28/08/2017 - Proposed Course End Date: 23/08/2019	Cancelled
General English (Beginner to Advanced) (4 to 36 weeks) [070884A], 04/12/2017 – 5/01/2018	Finished
General English (Beginner to Advanced) (4 to 36 weeks) [070884A], 19/03/2018 – 3/04/2018)	Finished
Diploma of Information Technology [096543G], 16/04/2018- 22/04/2019	Finished
Advanced Diploma of Network Security [096544G], Actual Course Start Date: 14/10/2019 - Actual Course End Date: 07/05/2020	Cancelled
Diploma of Leadership and Management [098919J], 13/06/2020 - Proposed Course End Date: 17/09/2021	Studying

1. The applicant arrived on a Student Visa on 20 February 2017. He was enrolled to study a Master of Information Technology degree, which would be followed by a Master of Business Administration. Both these courses are listed as “Cancelled” in the PRISMS. He did not begin studying his General English course until 4 December 2017 (almost ten months later). He finished the first part of that English course on 5 January 2019 and then there was a ten-week gap period in which he did not study. He resumed the course on 19 March 2018 and completed it on 3 April 2018. He then commenced a second course (Diploma of Information Technology) on 16 April 2018, completing it a year later on 22 April 2019. After another two-month break, he commenced a third course (Diploma of Leadership and Management) which is listed in the PRISMS as “Studying”. The course is due for completion on 17 September 2021.

2. The Tribunal notes that the applicant has had extensive periods where he has not been studying in a course with a registered course provider. The applicant is required to study a course at or above the studying level for which he obtained the original student visa. He was enrolled in a Master’s degree, but did not complete that course, instead regressing to the Diploma level. For his next course, he has not commenced an Advanced Diploma (which would represent an advancement in his study level). Instead, he is studying once more at the Diploma level. The Tribunal finds the applicant has made limited and lackadaisical academic progress.

Value of Course to Applicant’s Future Prospects

1. The applicant stated he expected to earn $12,000 per annum on return to India. He did not state in which field, or show any evidence of having researched specific companies, or the job market generally. His written reasons for wanting to study this course were very limited and generalised. He stated he wanted to study Leadership and Management because he was lacking in leadership and management skills.

2. It is difficult for the Tribunal to accept the applicant is a genuine temporary entrant given his lack of explanations for his frequently changing study plans, in particular how this latest course would be necessary in order to benefit his career and income earning prospects.

3. It appears the applicant has applied for a student visa for the primary purpose of securing an extension of his stay in Australia rather than due to a genuine interest in the subject matter of his studies and academic progression. In any event the applicant has not demonstrated a clear and substantial improvement that would arise from the proposed study. The Tribunal is not satisfied that the applicant has demonstrated the value of his proposed courses to his future.

4. The information he has provided regarding his circumstances in his home country, potential circumstances in Australia, the value of his proposed courses to his future, immigration history and other relevant matters are not sufficient to demonstrate that the applicant is a genuine temporary entrant.

Other Relevant Matters

1. The Tribunal has considered whether there is any other matter that is relevant to the assessment of the applicant's genuine intention to temporarily stay in Australia and finds that there are no other relevant matters for consideration.

2. 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).

3. 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.

4. 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

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

Brian Camilleri
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

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

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

3. 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

1. 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.

1. 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

1. 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

1. 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

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

2. 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

1. 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

1. 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.