Kothagattu (Migration)

[2020] AATA 3570

Kothagattu (Migration) [2020] AATA 3570 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akhilesh Kothagattu

CASE NUMBER:  1906993

DIBP REFERENCE(S):  BCC2019/159293

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         24 June 2020 at 3:05 pm (VIC time)

DATE OF WRITTEN RECORD:                27 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 27 August 2020 at 5:57pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – completion of higher-level course – enrolment in lower-level course in different subject area – value of course to applicant’s future – availability of equivalent courses in home country – personal, family and financial circumstances and incentives to stay or return – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), Schedule 500.212(a)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 March 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 24 June 2020 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. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs on 12 March 2019 to refuse to grant the applicant a student (temporary) (class TU) visa under section 65 of the Migration Act 1958.

4. The applicant applied for the visa on 23 January 2019. This case is of the subclass 500 student visa application. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500. 212 of Schedule 2 to the Migration Regulations 1994. The applicant appeared before the Tribunal on 24 June 2020 to give evidence and to present argument. The applicants were assisted in their review by their registered migration agent.

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

6. The criteria for a subclass 500 student visa are set out in part 500 of Schedule 2 to the regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by the applicant. The issue in the present case is whether the applicant is a genuine temporary entrant for entry and stay in Australia as a student.

7. In considering whether the applicant satisfies clause 500.212(a) the Tribunal must have regard to direction 69 assessing the genuine temporary entrant criterion for student visa and student guardian visa applications made under section 499 of the act.  The direction 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, the value of the course to the applicant’s future, the applicant’s immigration history and any other relevant information provided by the applicant or otherwise available to the Tribunal.

8. The direction indicates that 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.

9. The applicant in this case is an Indian male who first arrived in Australia on 20 November 2014 on a student visa for the purpose of studying a Master of Information Technology degree.  Consequently, the applicant has held a temporary graduate 405 visa and a bridging visa and made the application for the student visa, the subject of this application, on 23 January 2019.

10. The applicant is currently enrolled in an Advanced Diploma of Leadership and Management at the International College of Tasmania, which is scheduled to conclude on 23 May 2021, thereby extending the applicant’s time in Australia on various temporary visas for approximately six years.

11. Prior to arriving in Australia, the applicant studied at a university in his home country in a degree in Electrical and Electronic Engineering.  He worked between 2012 and 2013 as an electrical engineer in his home country.  Since arriving in Australia, the applicant has completed a Master of Information Technology (Computer networking) at the Charles Sturt University.  He undertook the Diploma of Leadership and Management which he did not complete at the Gen Institute, subsequently he undertook a Diploma of Leadership and Management at the International College of Tasmania which he did complete in April 2020.   The applicant is currently studying an Advanced Diploma of Leadership and Management at the International College of Tasmania which is scheduled to conclude in May 2021.

12. In support of the applicant’s application, the applicant provided to the Tribunal a copy of his current Confirmation of Enrolment in the Advanced Diploma of Leadership and Management, evidence of partaking in courses online and a detailed response to a request for student information under section 359(2) of the Migration Act.

13. The Tribunal has considered all of that material in addition to the applicant’s evidence at the hearing.  

14. The Tribunal has had regard to the applicant’s circumstances in his home country.  As to the availability of the applicant’s current course in his home country, the applicant stated that after doing various research he came across a few courses in management that are available in his home country however he says that they are not very focussed on professional ethics and communication skills and leadership aspects.  He said also the courses back in India tend to concentrate more on theoretical rather than practical skills and also lacks the study infrastructure.  This is the reason why he chose Australia for this particular course.  He said furthermore studying in Australia will add value to his personal confidence along with his resume and will assist him in his career.  He said further that graduates from Australian institutions are successful in holding prominent positions globally and can really have good merits.

15. As to the applicant’s personal ties to his home country, it is clear that the applicant’s mother, father and sister all currently reside in India.  Since arriving in Australia in 2014 the applicant has returned home on two occasions to visit his family. Once in 2015 for 25 days and again in 2017 for 47 days.  In the applicant’s response to a request for information the applicant contended that he owns an apartment in India to the value of $79,900, a townhouse to the value of 187,500 and land to the value of $156,250.

16. As to the applicant’s economic circumstances in Australia, in the applicant’s response to a request for information he set out his working history in Australia.  He worked as a marketing representor at Lifestyle Technologies between 2014 and 2015 respectively where he earned approximately $25,000 per annum.  He then worked as a console operator for a BP outlet in 2017 where he earned approximately $14,500 per annum.  In the applicant’s oral evidence at hearing the applicant informed the Tribunal that he is currently working as a console operator for a Shell business in Tasmania. The applicant stated he was working approximately 20 hours per fortnight and is earning between $15,000 to $17,000 per annum in that form of employment.

17. The applicant stated in his response that he has no concern about military or civil unrest in his home country.

18. The Tribunal is unable to accept the applicant’s reasons for not studying in his home country on the basis that the Tribunal is not of the view that the applicant has failed to demonstrate that he has undertaken any significant research into the level of the availability of his current course in his home country.

19. The Tribunal acknowledges that the applicant’s immediate family reside in India.  However, the Tribunal finds that the applicant’s family is and of themselves is not presented as a significant incentive to return to India when considered against the applicant’s potential circumstances in Australia, demonstrated by his current and ongoing employment and the fact that he has only returned home on two occasions since arriving in Australia in November 2014. 

20. The Tribunal notes that the applicant has contended that he has various financial holdings in his home country and although the Tribunal notes that there has been no objective evidence provided by the applicant to substantiate those holdings, the Tribunal does not consider the applicant’s financial holdings in and of themselves to constitute an incentive to return home to India at the conclusion of the applicant’s studies when considered against the applicant’s potential circumstances in Australia in the form of economic opportunity.

21. The Tribunal considers that the applicant’s current and potential economic circumstances in Australia outweigh the applicant’s financial ties to his home country.  The Tribunal has some concern as to the extent of time the applicant has been onshore since 2014 in circumstances where he now seeks to undertake studies that are a regression from the high level qualifications that he already holds as being indicative of an intention to remain in Australia on a more permanent basis.  The Tribunal informed the applicant that his study history may be the reason or part of the reason for affirming the decision of the delegate.

22. The Tribunal further informed  the applicant that in view of his high level of qualifications to date, that a Bachelor’s degree in his home country and a Masters degree that he has already obtained in Australia, that the academic regression the applicant has currently demonstrated by the taking of an Advanced Diploma of Leadership and Management, might be the reason or part of the reason for affirming the delegate’s decision.

23. The applicant in response candidly informed the Tribunal that he has a reasonable technical knowledge to date because of his previous studies, but that it is obvious he does not have sufficient management skill and he is of the view that his current course will assist him when applying for higher level information technology roles in India.  The applicant further contended that his studies to date have had a technical focus but lack a practical skill component.  The applicant stated further that he wishes to complete his Advanced Diploma of Leadership and Management as his father is retired and he wishes to return to his home country and undertake opportunities that are presented there and also that his family wish him to marry in the near future.

24. The Tribunal has taken all those matters into account and while the Tribunal accepts that individuals may choose different areas of study on the basis of a change in career direction, the Tribunal can’t be satisfied that the current course in which the applicant is presently enrolled will further assist his career development or any potential in view of the high level qualifications that he already holds, the high level work experience that he already has and the fact that he has already completed a Diploma of Leadership and Management in Australia to date.

25. In view of the applicant’s study history and work history to date the Tribunal is of the view that the applicant is an accomplished young man who is sufficiently qualified professionally and academically to return home to his home country and pursue a career in his chosen field.

26. The Tribunal has had regard to the applicant’s circumstances in Australia.  The Tribunal notes that the applicant has a demonstrated work history in Australia, that he has contended in his response to a request for information that he doesn’t have community ties in Australia.  The Tribunal notes that there is no evidence before the Tribunal of liberty to enrol in multiple courses over the course of the applicant’s time in Australia.

27. As to the applicant’s knowledge of his education provider, the applicant contended his response to request for information that although he has a strong background as an electrical and IT engineer he will try and implement the skill set into industrial environments where his technical knowledge can help the organisation in order to progress in a professional set up and that the conglomeration of academic, technical, ethics and leadership and management are very crucial.  He stated further that when he was searching for a relevant leadership and management course, he came across the Diploma and the Advanced Diploma in Leadership and Management offered by the Tasmanian College which has a good reputation and has been accredited with reliable partners like ACP, ENAQF.  He said the college had good people management skills which made it a good destination of choice.

28. The Tribunal is unable to conclude that the applicant has undertaken any significant research into his education provider or course content or educational objectives, based on the assertions that I have just set out above.

29. The  Tribunal is concerned that the applicant has achieved high levels of academic qualifications to date and is now regressing in academic studies by enrolling in a course that is at a substantially lower level than the qualifications the applicant has already obtained in circumstances where it is not plainly clear what the value of those courses will bring to the applicant’s future.

30. As to the value of the course to the applicant’s future, the Tribunal notes that the applicant’s current course is a regression from the Masters and Bachelors degrees that he currently holds. 

31. As to whether the course will assist the applicant in his employment pursuits and assist him in relation to his chosen field of employment, the Tribunal has had regard to the matters set out in the applicant’s response.  The applicant has stated that the long-term goal was to return to India and build his own staff up that provides IT solutions and he says, “So I believe that I would need to have accountable experience in the relevant industry first”.  He says, “after the successful completion of my advanced diploma in leadership and management I intend to return to my homer country and look forward to proceed in my professional career.”  He says, “India has a booming IT market in metro cities like Bangalore, Chennai and Mumbai and so on.  It has flexible employment opportunities.”  He says, “With the qualifications I have earned from the Australian education system I am keen to work as a software team lead manager” and he is keen to work in industries like Central or In Focus.  He says moreover he would like to look forward to educating students in India about the benefits and opportunities pertaining to education in Australia.

32. Insofar as remuneration is concerned, the applicant contended that a graduate of an Advanced Diploma of Leadership and Management would possess the skills necessary to enter the real-world challenges.  He says employment options also become more open and welcoming for students with a wide spectrum of knowledge.  He says the qualification would help him acquire the designation of IT marketing team lead or manager and that he looks forward to a bright future.

33. The Tribunal is not satisfied that the applicant has objectively demonstrated the value of the proposed course to his future.  The Tribunal is unable to accept the assertions as to the value of the course to the applicant’s future as the applicant has not provided any objective evidence of research of job opportunities or applications in the relevant field in India.  Moreover, the applicant has not demonstrated how at completion of the current course will add value to his earning capacity.  In view of the high-level qualifications and work experience that he already holds.

34. The Tribunal is of the view in the circumstances that the value of the course to the applicant’s future is not outweighed by the current cost of completing the course in view of the qualifications and work experience that the applicant already has.  The Tribunal is of the view that the applicant is an accomplished young man who has more than demonstrated that he is qualified to return to his home country and seek to commence work in his chosen field.

35. The Tribunal has had regard to the applicant’s immigration history and takes note of the applicant’s migration agent’s submission in respect of her contention that the applicant has had a history of compliance with visa conditions.  Indeed, the Tribunal acknowledges that there is no evidence of either visa refusals or cancellations before the Tribunal.  However, the Tribunal notes the fact that the applicant has been in Australia since November 2014, has obtained a Masters of a degree and now seeks to regress to obtain a lower level vocational level courses in circumstances where it is not objectively established that that will be of value to the applicant and the applicant’s future.

36. On that basis the Tribunal does not find that behaviour to be consistent with that of a genuine temporary entrant who intends to remain in Australia temporarily.  The Tribunal finds that this behaviour demonstrates an intention to remain in Australia potentially on a more long-term basis.

37. There is no other information before the Tribunal that is either beneficial or unfavourable to the applicant.  The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise wrongful means to remain in Australia.

38. The Tribunal acknowledges that the applicant has demonstrated that he has achieved outstanding academic success in Australia to date, however considering all the circumstances and all the evidence before the Tribunal, the Tribunal does not accept the applicant’s claim to be a genuine temporary entrant.

39. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and accordingly does not meet Clause 500.212(a).  Given the above findings, the Tribunal finds that the criteria for the grant of a subclass 500 student visa are not met.  Accordingly, the decision under review must be affirmed.

40. The Tribunal affirms the decision not to grant the applicant a student (temporary) (class TU) Visa.

41. This is an oral decision made 3.05 pm on 24 June 2020.

    DECISION

42. The Tribunal affirms the decision under review.

    Vanessa Plain
    Member