Malhotra (Migration)

[2020] AATA 3713

Malhotra (Migration) [2020] AATA 3713 (14 May 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Ankush Malhotra

CASE NUMBER:  1835496

DIBP REFERENCE(S):  BCC2018/4342899

MEMBER:  Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         14 May 2020 at 10:50 am (VIC time)

DATE OF WRITTEN RECORD:                13 July 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 13 July 2020 at 11:13am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met– applicant applied for a permanent visa – decision under review affirmed

LEGISLATION
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 November 2018 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

1. At the hearing on 14 May 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

1. The time now is 10.36 am on 14 May 2020. This is an oral statement of the decision and reasons of the Administrative Appeals Tribunal in case number 1835496 in relation to an application for review brought by Mr Ankush Malhotra.

1. He is a citizen of India and is 29 years old. He seeks review of a decision made by a delegate of the Minister refusing to grant him a student visa.

1. He applied for this visa on 5 October 2018. It was refused by the delegate on 28 November 2018. He lodged his review application on 3 December 2018, and for the visa to be granted he must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.

1. The student visa was refused in this case initially because the delegate found that the applicant did not satisfy the primary criteria contained in clause 500.212 of Schedule 2 of the Regulations. The delegate was not satisfied that he was a genuine applicant.

1. The delegate’s reasons are set out in a Decision record. That Decision record was provided to the applicant when he was notified that his visa application had been refused. The applicant also provided a copy of that Decision record to the Tribunal when he lodged his review application. By lodging the review application, the applicant contends that the delegate’s decision refusing the visa is neither the correct, nor the preferable outcome in this case.

1. The following issues have arisen for consideration and determination by the Tribunal. First, whether the applicant is currently enrolled in a course of study as required by clause

   500.211. Second, whether the applicant is a genuine applicant for entry and stay as a student in Australia as required by clause 500.212.

1. The Tribunal convened a hearing to consider the merits of this application on 14 May 2020 by phone. The applicant participated at the hearing by phone to give evidence and make arguments and he was assisted, also participating by phone, by his registered migration agent, Mr Pawan Bhambi who the Tribunal permitted to make submissions pursuant to section 366A on the basis that there were exceptional circumstances.

1. The Tribunal received a number of documents from the applicant prior to this hearing, including: a completed request for student visa information form, which he completed and was lodged with the Tribunal on 21 April 2020; a COE, bearing reference number E7DAF176, indicating that on 18 April 2020 the applicant enrolled in an Advanced Diploma of Business course at the International College of Melbourne, the course starting on 18 May 2020 and finishing on 15 November 2020 with a total cost of $3000. The Tribunal also received an Advanced Diploma of Leadership and Management which he has successfully completed and, according to that document, he successfully completed that on 25 October last year.

1. The Tribunal has considered those documents insofar as their contents contain information of material significance to the outcome of this review application.

1. I will turn first of all to consider whether the applicant meets the criteria contained in clause

   500.211.    It is required that any student visa application be founded on evidence of the applicant being enrolled in a registered course of study, which must be current at the time the Tribunal makes its decision, which is now. I have already referred to the COE in relation to the Advanced Diploma of Business course.  It is a current enrolment.  I am satisfied that he is currently enrolled and therefore I find that the applicant meets the criteria contained in clause 500.211.

1. However, the critical issue in this case is whether he meets the criteria contained in clause

   500.212.    That clause states that for a student visa application to be successful, the applicant must be a genuine applicant for entry and stay as a student in Australia.

1. The Regulations specify three constituent elements of a student visa applicant, and as elaborated by case law. Firstly, an applicant must demonstrate that they are a genuine, authentic applicant for entry and stay in Australia as a student who must genuinely want to study. Secondly, an applicant will only be regarded as a genuine applicant because he or she intends genuinely to stay in Australia temporarily. Thirdly, a genuine applicant is one who intends to comply with any conditions to which the visa may be subject.

1. In relation to elements one and three that I have just listed, that is demonstrating firstly that the applicant is a genuine student, and thirdly that he intends to comply with the conditions to which the visa may be subject, the Tribunal in relation to this review application has no concerns at all. And that conclusion primarily derives from the fact that prior to the hearing today the Tribunal conducted a review of the international students PRISMS database which holds the history of every international student who enrols in registered courses in Australia. And, in the applicant’s case, also as disclosed by himself in his request for information form, he has been here since 2009 and studying for a significant period of time under previously held student visas. And, in fact, he has held four previous student visas from 2009, before obtaining a subclass 485 visa. And he has successfully completed a number of courses as confirmed in oral evidence and as indicated by the PRISMS database.

1. Although the PRISMS database disclosed cancellations of various courses he was enrolled in, that appears simply to be adjustments being made by the course provider at the time. But what it clearly shows is that he has effectively completed, successfully, every single course that he has enrolled in. That is certainly to his credit and demonstrates that he is the sort of person who, when he puts his mind to enrolling in a course, he will complete it. And so I have no doubt that, if he is permitted to stay in Australia on a student visa, that he will comply with the conditions and that he does genuinely intend to complete this diploma course.

1. However, I have not yet considered in my reasons the second of those constituent elements, and that is the one of most significant concern in this case. To be satisfied that he meets the criteria, I need to be satisfied that he intends genuinely to stay in Australia temporarily. That particular requirement under the Regulations has been considered by the Federal Court of Australia in the case of Saini v Minister for Immigration and Border Protection [2016] FCA 858. At paragraph 30 of that Federal Court Judgment, what it says about demonstrating the applicant intends to genuinely stay in Australia temporarily, what is required is an evaluation of intentions at the time of decision. And if at this time there is a settled intention to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention genuinely to stay temporarily.

1. That concern arises in this case because the applicant disclosed in his request for student visa information form that on 18 December 2018, and that is just a few weeks after his initial student visa application was rejected, he applied for a skilled nominated subclass 190 visa. That particular visa is a visa, if granted, that leads to permanent residence, and ultimately citizenship, in Australia.

1. As at the time of the Tribunal’s decision, the determination of that visa application at first instance is extant. What I mean by that is no determination has been made and, according to the applicant in oral evidence given at the Tribunal, he said it takes eight to nine months. He received correspondence from the Department in relation to that application last in July 2019, so almost 10 or 11 months ago, requesting further documentation, but there has not been any indication as to what the outcome of that visa application is. Although the applicant, in oral evidence, stated that he had concerns about the outcome because apparently, accordingly to the applicant, Border Force is investigating the employer who contributed five points towards that visa application, and it may be, because of that investigation, the application for the 190 visa is jeopardised.

1. Mr Bhambi, in submissions, also referred to that fact, and referred to the fact that he was the one who filed on behalf of the applicant a subclass 190 visa. And he also, in his own experience as a migration agen, submitted that he has his own doubts as to the prospects of success because the employer is being investigated. And that may explain why the determination in relation to that 190 application is being held up. Instead of the usual eight to nine months, it is taking longer. In any event, whatever the outcome in relation to that application, the fact that the applicant has applied for that visa demonstrates that he is interested, and certainly desires, to obtain permanent residence in Australia.

1. What that means, because I have to apply the law, is that based on that application and that evinced intention of wanting to remain here permanently, although he may not actually have that right now, is that he does not have an unqualified intention to remain in Australia temporarily. By virtue of the fact that he has applied for this permanent residence visa, he has done an act which is inconsistent with having an unqualified intention to remain in Australia temporarily. Based on that evidence alone, I cannot be satisfied that he has an unqualified intention to remain here temporarily. By that act, that effectively amounts to an admission by conduct that he does not have such an intention, which he needs to have to meet the requirements of the visa.

1. Accordingly, as a result of that admission and that conduct on his part, there is very little utility, if any, served by looking at any other objective criteria set out in the Regulations or Direction Number 69. I note that Mr Bhambi had requested in that regard for an opportunity to file further documentation which could indicate that the applicant is a genuine student and genuinely wishes to remain here temporarily.  And in that regard, he proposed postponement of the hearing so that the applicant could prepare a business plan. In the Tribunal’s view that evidence, however good and considered, a business plan would make no difference because it does nothing in terms of undermining the applicant’s desire, as demonstrated by his conduct in applying for the 190 visa, to seek permanent residence in Australia.

1. Based on that evidence and that reasoning, I am forced to conclude that the law requires me to find that the applicant does not meet the criteria contained in clause 500.212(a).

1. The time now is 10.50 am on 14 May 2020. The Tribunal affirms the decision not to grant the applicant a student temporary class TU subclass 500 visa.

DECISION

1. The Tribunal affirms the decision under review.

Dr Jason Harkess Member