Kethireddy (Migration)

[2024] AATA 1217

Kethireddy (Migration) [2024] AATA 1217 (14 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhishek Kethireddy

REPRESENTATIVE:  Mr Manoj Kumar Nanda (MARN: 1568823)

CASE NUMBER:  2211351

HOME AFFAIRS REFERENCE(S):          BCC2021/36591

MEMBER:Warren Stooke AM

DATE:14 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 14 May 2024 at 8:07am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentives to depart or remain – late response to tribunal’s invitation to provide information and loss of entitlement to hearing – one completed course almost five years ago – recent enrolment in course not related to stated career goals – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359C, 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

CASE

Hasran v MIAC [2010] FCAFC 40

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 15 July 2022 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 11 March 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) because the delegate was not satisfied that the applicant had provided evidence of financial assets, property or business ties in their home country to constitute a strong incentive to return at the completion of their proposed study. The delegate was also not satisfied that the applicant, on balance, had been able to demonstrate ties that would serve as a significant incentive to return to their home country. The applicant had provided the Department a qualification certificate, transcript and a letter from Australian College of Profession dated 17/10/2019 as evidence of their completed course. The applicant has provided no evidence of any further studies completed in Australia, indicating that the last course they had completed was a Diploma of Leadership and Management in June 2019. The delegate held significant concerns the applicant has utilised temporary visas, and is again attempting to utilise a temporary visa for the purpose of maintaining residency in Australia. When taking all of this into consideration in conjunction with other aspects set out in this decision record, the delegate was not satisfied the applicant is a genuine temporary entrant.

4. On 19 January 2024, the Tribunal corresponded with the applicant and invited the applicant to provide the following information:

   “As you applied for the visa on the basis of undertaking a course of study in Australia, it
   is a requirement of the visa for you to be:

   • enrolled in a registered course of study; and

   ·a genuine applicant for entry and stay as a student.”

5. The written information that was requested in the Request for Student Visa Information form was to be received by 2 February 2024 and an extension of time was not requested. The Tribunal advised:

   “If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the
   information. You will also lose any entitlement you might otherwise have had
   under the Migration Act 1958 to appear before us to give evidence and present arguments.”

6. The review applicant did not provide the information requested within the period allowed in the correspondence of 19 January 2024, which was by 2 February 2024. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 is a genuine temporary entrant for the purposes of study.

9. The applicant was granted a Bridging Visa A on 12 March 2021 with condition 8105 work limitation, which became active on 15 March 2021 at the end of the Student (Temporary) visa.

10. The applicant provided evidence of completing a Diploma of Leadership and Management at the Australian College of Professions from 15 January 2018 to 14 June 2019.

11. The applicant provided the Department with evidence of health insurance with Allianz from 24 October 2018 to 15 March 2021.

12. The applicant provided the Tribunal with a Confirmation of Enrolment for an Advanced Diploma of Business to be undertaken from 5 February 2024 to 4 August 2025 at the Global Training Academy.

13. The applicant provided evidence of undertaking a PTE English language test on 19 February 2021 with an overall score of 58.

14. On 1 March 2021, the applicant provided the Department with a GTE statement, as flows:

    “I submit that I am a genuine temporary entrant to Australia. I
    strongly would like to achieve an educational qualification related to
    my career goals. As mentioned in my previous application as well
    that I am a person who believes in anything can be created if we use
    best of our capabilities and inner strengths are tested and we
    willingly take on the challenges. I consider myself as a brilliant
    student when it comes to the academics. I give the utmost
    importance to the cause of education as I believe it to be a major
    part of a human life. I think now i am ready for next move in my
    career which is to go into management when i will return back to my
    country after successfully completing my current course. To get
    promotion or enter into lower to middle level management I felt it is
    very important for a person to be equipped with leadership and
    people management skills so that it becomes easier for me to climb
    ladder up in management, so I decided to enrol into a course which
    teaches you skills of leadership and management. India being one of
    the growing economies in World has resulted in Private corporate
    sectors all across the board to grow at a rapid pace. And it is only
    expected to grow and become bigger in the foreseeable future and
    beyond. Hence, substantial career development opportunities lie
    ahead in the management areas of corporations and technology is
    the future. In order to gain an appreciation of these and related
    issues, it is essential for me to have a strong grounding in IT related
    issues connected with real world, as well as gain knowledge for
    Business Administration skills Completion of proposed courses would
    greatly enhance my broader knowledge and skills of management of
    organizations and consequently help my quest of building a career in
    management area in private corporate sectors.
    My Long-term goals and short-term achievements after completing
    my proposed courses in Australia. Setting realistic goal should be the
    prime objective in every human life. But the GOAL has to be
    meaningful, countable, and quantifiable or result-oriented. My midterm
    goal is to successfully completing my study programs within due
    times. My long-term goal is to build a successful career in
    management area in private corporate sectors in India.
    I strongly and genuinely believe that completing my prospective
    courses will provide me not just an opportunity to find employment
    in the Management sector in corporate world back home but also a
    realistic chance of succeeding too! Culmination of all my acquired
    skills and knowledge through my educational qualifications will
    definitely provide me an all round background to make a huge stride
    towards my career goals. I have shared my view with my family
    especially with my parents for further study in the area of Business
    Administration from Australia. They are delighted to know my plan
    simultaneously have assured me for providing with full support and
    whatever needed.
    I have chosen Global Training Academy to complete my proposed
    study programs as it offers me excellent quality, convenient and
    cost-effective options to undertake and complete my proposed study
    program. As we know Management plays vital role in success of any
    Business anywhere, I now enrolled in Advance Diploma in Business
    Management because I will gain all the knowledge about people
    management. The knowledge I will gained after successfully completing this course will enhance my business management skills.”

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

15. 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?

16. In considering whether the applicant satisfies cl 500.212(a), the Tribunal, at the time of decision, must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act.

17. 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

18. 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.

19. 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.

20. The Tribunal has considered the evidence, provided by the applicant, in the context of Direction 108 and finds that the applicant is not a genuine temporary entrant for the following reasons:

    a.The applicant has provided evidence of completing a Diploma of Leadership and Management at the Australian College of Profession from 15 January 2018 to 14 June 2019 and no further completed studies have been provided in evidence since this date. As such, the Tribunal is not satisfied that the applicant is a genuine temporary applicant and has remained onshore for an extended period of almost 5 years without completing a course of study. On this basis the Tribunal finds that the applicant is using the Temporary Student visa stream to maintain residency and a lifestyle without participation in study;

    b.The applicant has provided evidence of enrolment in a closely related course of an Advanced Diploma of Business, which commenced on 5 February 2024 and is not due for completion until 4 August 2025. The Tribunal is not satisfied that participation in this course of study will provide any additional career support having expended almost 5 years onshore without participation in study at a considerable personal cost and that such a course could equally be undertaken in the applicant’s home country. In this regard, the applicant stated in the GTE statement that it was “essential for me to have a strong grounding in IT related issues connected with real world, as well as gain knowledge for Business Administration skills”. The Tribunal notes that the course to be undertaken is not IT related, as stated as required for his career.

21. In the absence of a detailed response, as to the purpose of the proposed study and the limited response to the Tribunal correspondence of 19 January 2024, which was provided on 22 April 2024, the Tribunal acknowledges the applicant has family contacts in India, has returned to India twice in recent years for 2 monthly periods and performs work in a temple in feeding the poor. As such, the Tribunal is not aware of any circumstances that would preclude the applicant from returning to his home country of India.

22. The Tribunal gives weight to the lack of academic participation and the discontinuation of studies when the stated purpose was to remain in Australia for the purposes of academic study. The applicant has not provided evidence of undertaking and completing studies in the last five years, which may have included evidence of notification to the Department to seek deferment approval, if there was a valid reason for non-participation in study.

23. The Tribunal finds that the significant non-participation in studies during the last 5 years, combined with the applicant remaining onshore, the Tribunal finds that this behaviour is not considered to be a period of time without completion of study that meets the Temporary residence criteria, in this case.

24. Further, there is no evidence before the Tribunal that would suggest that the applicant has any reason not to return to the India and that the applicant has developed a desire to remain in Australia for the purposes of maintaining residency and lifestyle.

25. Based on what is evidenced of the applicant’s circumstances overall, in the absence of any other relevant information, including the applicant’s immigration and study history, the applicant’s circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 108, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student. As such, the Tribunal is not satisfied that after extended period in Australia and having only completed one course on temporary visas, that the applicant intends to genuinely stay in Australia temporarily, having regard to the evidence advanced and considered cumulatively above. In this regard, the Tribunal is satisfied that the applicant is using the Study visa stream to maintain residency and lifestyle without participation in study, at the time of decision.

26. 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).

27. Accordingly, the Tribunal is not satisfied that the applicant is a genuine temporary applicant for entry and stay as a student, as required by cl.500.212.

28. 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

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

    Warren Stooke AM
    Member

    Attachment – Direction No.108

    DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 21 March 2024

    Clare O’Neil

    
    

    Minister for Home Affairs and Minister for Cyber Security

    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 - Preliminary

    Name of Direction

    This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 108.

    Commencement

    This Direction commences on 23 March 2024.

    Revocation

    Direction No. 69, given under section 499 of the Act, is revoked.

    Interpretation

    Act means the Migration Act 1958.

    Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.

    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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).

    This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.

    This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.

    Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    Preamble

    The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 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.

    iii. b. Previous travels to Australia or other countries, including:

    iv. 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;

    v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    vi. 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

    vii. 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 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.