Lingam Dinne (Migration)

[2018] AATA 4333

Lingam Dinne (Migration) [2018] AATA 4333 (14 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Narasimha Reddy Lingam Dinne

CASE NUMBER:  1716206

HOME AFFAIRS REFERENCE(S):           BCC2017/1212251

MEMBER:Stephen Witts

DATE:14 September 2018

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 September 2018 at 3:40pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – Genuine temporary entrant – Completed higher degree course – Completed cheap, low level courses to circumvent migration program – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 499

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 Immigration and Border Protection on 10 July 2017 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 30 March 2017. 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 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. On 13 August 2018 the applicant was invited by the Tribunal to provide advice regarding the applicant’s proposed course of study and his entry and stay in Australia as a student. The Tribunal provided a request for Student Visa Information questionnaire and requested that the applicant complete this questionnaire and return it to the Tribunal. The written information requested in the attached questionnaire was required to be received by the Tribunal by 27 August 2018. This information was provided to the Tribunal.

5. The applicant was informed by the Tribunal that if it did not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. The applicant was informed that he would also lose any entitlement he might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant replied within the timeframes requested and consented to have the review determined without a hearing.

7. On that basis the Tribunal proceeded to making a decision based on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 genuinely intends to stay in Australia temporarily.

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

10. 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?

11. 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 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.

12. 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.

13. The applicant was provided a copy of Ministerial Direction 69 in the Tribunal’s letter to the applicant on 13 August 2018.

14. According to the delegate’s decision record, provided by the applicant, the applicant lodged a student visa application on 30 March 2017 and provided confirmation of enrolment to undertake the following courses of study in Australia at the vocational education sector level; a Diploma of Business and an Advanced Diploma of Business.

15. On 10 July 2017 the delegate refused the applicant’s application for a student visa.

16. According to the delegate’s decision record the applicant first arrived in Australia from India on 29 July 2012 on a TU-573 student visa. The delegate noted that the applicant had completed a Master of Information Technology. Upon the completion of this course the applicant applied for and was granted a VC-485 Temporary Graduate visa on 29 April 2015. In its decision record the delegate stated that the applicant is now seeking to study at low level after having completed a Masters level course; and that the applicant is undertaking courses of study which will not assist the applicant in achieving his goals or improve his career prospects. The delegate contended that the applicant is utilising the student visa system to circumvent the migration program.

17. The delegate also contended that although the applicant did have personal ties in India in the form of his immediate family the delegate did not deem this to be a significant incentive to return home as the applicant has spent little time offshore since arriving here in 2012.

18. According to the applicant’s s.359(2) questionnaire (AAT file folio 27-32) the applicant successfully completed a Bachelor of Electronics and Communications Engineering in November 2011.

19. According to the applicant’s evidence, since his arrival here in 2012 the applicant has been enrolled in the following courses: a Master of Information Technology begun in February 2012 and successfully completed in October 2014, a Diploma of Business begun in March 2017 and successfully completed in March 2018, and an Advanced Diploma of Business begun in March 2018 and due for completion in March 2019.

20. According to the applicant’s evidence he has been working as a chef since November 2014 earning up to $23.00AUD per hour.

21. According to the applicant’s evidence he has a mother and father in India, and a sister and brother-in-law in South Korea.

22. According to the applicant he does own a house and land back in India although it is unclear whether this is owned by himself or his family. The Tribunal finds that even if owned by him this is not necessarily a significant incentive to return home as land and houses can be leased out for rental income.

23. The applicant, in his s.359(2) questionnaire stated that:

    “Once I finish my course I wish to start my own business back home, my family support me with financial assistance to set up a new business back home. I want to study business course in Australia in order to gain knowledge on running a successful business. I am a genuine student want to finish my course and start a new career back home.”

24. The Tribunal has considered the material in the delegates file, specifically the statement provided to the delegate above, and to all the material in the AAT file, specifically the delegate’s decision record and the applicant’s 359(2) material, and the other communications sent to the applicant; and finds that the applicant is not a genuine applicant for entry and stay as a student.

25. The applicant has not provided reasonable reasons for not undertaking his study in his home country or region as similar courses are already available there.

26. The applicant has not effectively addressed the extent of his personal ties to his home country and whether those circumstances would serve as a significant incentive for him to return to his home country.

27. The applicant has not addressed any military service commitments that will present as a significant incentive for the applicant not to return to his home country or the extent of any political and civil unrest in the applicant’s home country that would influence the applicant’s motivation for applying for a student visa.

28. The applicant has not addressed any of the economic circumstances that would present as a significant incentive for the applicant not to return to his home country. These circumstances include consideration of the applicant’s circumstances relative to the home country and to Australia. The Tribunal notes that the applicant has been working here in Australia for some time and finds that this indicates that the applicant has an incentive not to return home.

29. The applicant has not addressed the value of his proposed enrolments to his future, other than as stated above, and has not demonstrated the relevance of his proposed courses to his proposed future employment either in his home country or in a third country. The Tribunal is concerned that the applicant has already obtained a Master of Information Technology here in Australia and also has a Bachelor of Electronics and Communication Engineering which he successfully completed back in his home country and is now seeking to study low-level diplomas in business. The Tribunal finds that the applicant is undertaking a course that is at a lower level to his current level of education and that that course, and his proposed future enrolment in an Advanced Diploma of Business, will not assist the applicant to obtain employment or improve employment prospects in his home country. The Tribunal finds that this is evidence that the applicant is using the student visa program to circumvent the migration program.

30. The applicant did not address the amount of time he has spent in Australia and whether his student visa would be used primarily for maintaining ongoing residence in Australia and why the applicant has undertaken a series of short inexpensive courses that are significantly below the level of the qualifications that he has gained both here in Australia and back in his home country.

31. The Tribunal finds that the applicant is using the student visa program to circumvent the intention of the migration program and is not a genuine applicant for entry and stay as a student.

32. 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).

    Conclusion on cl.500.212

33. 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.

34. 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

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

    Stephen Witts
    Member