Malik (Migration)

[2019] AATA 6789

Malik (Migration) [2019] AATA 6789 (19 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yatin Malik

CASE NUMBER:  1729133

DIBP REFERENCE(S):  BCC2017/3882398

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         19 November 2019 at 12:40 pm (VIC time)

DATE OF WRITTEN RECORD:                14 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 14 February 2020 at 9:42am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –genuine temporary entrant criterion not met –using student visa to maintain ongoing residence – migration history–decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
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 3 November 2017 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 19 November 2019 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. The applicant is a citizen of India and he seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection now known as the Minister for Home Affairs on 3 November 2017.  That decision refused to grant the applicant a student visa.

4. The applicant originally applied for the student visa on 22 October 2017. The specific visa he applied for is classified under the Migration Regulations as a Student (Temporary) (Class TU) subclass 500 visa. Such visas are issued under the general power to issue visas conferred on the Minister or his delegate by the operation of section 65 of the Migration Act 1958.

5. If granted a student visa permits a non-Australian citizen to enter and remain in Australia to study fulltime on a temporary basis. In this case there’s only one applicant and he seeks a student visa so that he can reside in Australia while undertaking a course of study, namely an Advanced Diploma of Leadership and Management. For the visa to be granted he must meet the primary criteria set out in part 500 of schedule 2 of the Regulations.

6. A student visa was refused in this case because the delegate had found that the applicant did not satisfy the primary criteria contained in clause 500.212.  The delegate was not satisfied that he was a genuine applicant for entry and stay as a student.  The delegate’s reasons are set out in a decision record.  A copy of that decision record was provided to the tribunal by the applicant when he lodged his application for review on 22 November 2017.

7. The tribunal convened a hearing to consider the merits of the application on 19 November 2019.  The applicant participated in the hearing to give evidence and present arguments by telephone link. 

8. Clauses 500.211 to 500.218 contain the primary criteria relating to the grant of subclass 500 student visas.  In this case only clause 500.211, the enrolment criterion, and clause 500.212, the genuine applicant criterion, are relevant for determining the outcome of the review application.

9. First, I turn to consider the enrolment criterion.  Clause 500.211 requires that a student visa application be founded on evidence of the applicant being currently enrolled in a fulltime registered course of study.  At the commencement of the hearing the tribunal inquired of the applicant as to whether or not he was currently enrolled.  The tribunal referred to the fact that the only documentation which had been filed related to a conditional offer received from the applicant and that conditional offer was authored by JV International College Pty Ltd and related to a Diploma of Business.  The conditional offer is dated 25 July 2019.  It is not evidence of an enrolment but only an offer.  The tribunal noted to the applicant that nothing else was on the file.  The applicant replied that events have unfolded since 25 July 2019 and he stated on oath that he is currently enrolled in an Advanced Diploma of Leadership and Management and he is partway through studying for that course.

10. Ordinarily that would not amount to sufficient evidence to meet the enrolment criterion, however the tribunal finds that the applicant to be a witness of truth, an honest witness.  And in light of the other evidence that there is a conditional offer on foot and also that the applicant satisfactorily explained the reasons why he never took that offer up.  The tribunal accepts his evidence that he is currently enrolled and studying for an Advanced Diploma of Leadership and Management at the Alpha Institute, which is based in Canberra.  The course has a start date of July 2019 and finishes in July 2020.  The applicant in oral evidence estimated the cost of the course to be $7,000.  On this evidence the tribunal is satisfied that the enrolment criterion is met.

11. However, the critical issue in this case is whether the applicant satisfies the criteria contained in 500.212.  That clause states that for student visa application to be successful the applicant must be a genuine applicant for entry and stay as a student in Australia.

12. The Regulations specify two constituent elements of a genuine student visa applicant.  First, an applicant is regarded as genuine if he or she intends genuinely to stay in Australia temporarily as a student.  Secondly, a genuine applicant is one who intends to comply with any conditions to which the visa may be subject.

13. In relation to that second constituent element, if a visa were to be issued the tribunal is satisfied that he does intend to meet any conditions that were to attach to it and that is based entirely on his immigration history in Australia to date.  He has been here for approximately seven years on two previous visas that were issued to him, a 573 visa and a 485 visa.  And on the evidence before the tribunal quite frankly he has been a model international student visa holder.  He has complied with all of the conditions, he has studied well, and there have been no issues at all, so that is not the issue in this case.

14. The issue really is 500.212(a), that is does he intend to stay genuinely in Australia temporarily as a student?  The Regulations direct the tribunal to consider an applicant’s intentions as they are at the time the tribunal makes its decision.  Declared intentions need to be taken into account, his personal circumstances, his immigration history, his record of compliance with conditions of previous visas issued. There is also Direction number 69, which elaborates upon the regulatory criteria, in particular 500.212(a).  Circumstances must be considered of the applicant in their home country, their potential circumstances in Australia, the value of the proposed course of study to their future, and their immigration history.  The tribunal has considered the application of those criteria to the evidence of this particular case.

15. The first consideration obviously are the applicant’s declared intentions.  The applicant has in the course of his evidence essentially declared an intention that once he has completed this Advanced Diploma of Leadership and Management he will return to India and put his skills that he has acquired from his educational pursuits in Australia to good use.  He was not specific but he has referred to trying to get a job when he gets back to India working for a multinational corporation.

16. There is some degree of inconsistency with respect to that declaration because when he originally applied for this visa application and lodged his application with the Department of Immigration and Border Protection as it then was back in 2017, he had advanced his application on the basis of studying for an Advanced Diploma of Human Resources Management.  He referred to in that application his reasons for wanting to study that.  He had already at this point completed his Bachelor of Accounting degree at Central Queensland University and he stated that an Advanced Diploma in Human Resources Management would be a perfect combination for any employer’s needs.

17. He also stated in the application that he would like to take an opportunity by working in an Australian firm temporarily, which would give him ample experience professionally to work in a multinational company back in India.

18. Implicit in that application was his acknowledgement that once he completes that Diploma he would be ready to take that Advanced Diploma with him as well as his Bachelor Degree, as well as his experience as an intern working on the 485 visa, back to India.  If he was true to those intentions he would have left Australia by now rather than enrol in another course to prolong his stay.

19. In fairness to the applicant the tribunal directed the applicant’s attention to this particular discrepancy, so that he could comment on it.  Certainly the applicant stated that he likes Australia, that if the opportunity was available he would consider staying here permanently, if that opportunity were to present itself.  But he still maintained his view that he would return to India upon completion of this Advanced Diploma of Leadership and Management.

20. Upon the inquiry relating to the utility of this Advanced Diploma of Leadership and Management the applicant stated that a part of his reason for not leaving Australia after completing the Human Resources Advanced Diploma, and perhaps what seems to be quite a significant part of his reasons for prosecuting this application on review and enrolling in an Advanced Diploma of Leadership and Management, was that he did not want on his immigration record in Australia a mark or a bad record of having been refused a student visa.  That seemed to be an operating concern and what seemed to be the main reason why he applied for enrolment in this particular course as opposed to the main reason being that he wanted to actually enhance his skills in leadership and management.

21. That particular answer, while understandable for any honest and intelligent international citizen, it is not a satisfactory reason for a genuine applicant to advance his application for a student visa.  That should certainly not be the primary purpose for which the application is advanced today.  So that is a consideration that has weighed heavily on the ultimate decision of the tribunal today.

22. But even then, looking at the value that this particular course of Advanced Diploma of Leadership and Management would actually provide, the tribunal remains concerned as to what value it will actually provide.

23. The applicant already has a Bachelor of Accounting and he completed that very ably, swiftly and in compliance with the timeframe that he was given with his initial 573 visa.  He has also completed swiftly the Advanced Diploma of Human Resources and Management.

24. The tribunal is of the view that the Advanced Diploma of Leadership and Management would offer very little extra in terms of skills that might enhance his future employment prospects and enhance his remuneration prospects once he returns to India.  Most notably the Bachelor’s course sits at AQF level 7 and the Advanced Diploma levels sit at level lower than that.

25. The tribunal is of the view that the applicant already has the necessary skills, the intelligence, the knowhow obtained from both his Bachelor of Accounting degree and also his Advanced Diploma of Human Resource Management to enter the workforce and put his skills to good use.  The tribunal does not see any significant value in the Advanced Diploma that he is currently undertaking.

26. The tribunal also notes that the applicant was very lacking in specifics as to what type of job he would be able to obtain with the Advanced Diploma.  In that regard there is no specific evidence that demonstrates a particular employer needs an Advanced Diploma in Leadership and Management before he is offered a job and there is no specific evidence before the tribunal that demonstrates he will obtain a higher level of remuneration with this particular course requirement. In the tribunal’s view the extra qualification will command no more than he is already capable of commanding with his current qualifications being the Bachelor of Accounting and the Advanced Diploma of Human Resource Management.

27. The tribunal has taken into account his ties to his home country.  He has recently visited India and the tribunal accepts that he has most of his family in India and so he does have ties to the jurisdiction and a reason to return home.

28. The tribunal also accepts that he has other ties to the community possibly in the nature of a social network although even by the applicant’s own admission he’s been here now for seven years and he has probably lost a significant degree of those ties having now been here for seven years.  And he has admitted that he arrived in Australia when he was 18 years of age and he has spent all of his adult life in Australia.

29. Otherwise he does regularly visit in India, so he does have ties.  He has not disclosed any property or other assets but it may be that he has beneficial interests in family property.  The reality is even by the applicant’s own account he has diminished ties simply due to his time of seven years being in Australia.  As each day goes by those ties with his home country diminish further.

30. The tribunal also notes the economic disparity between India and Australia.  Australia is ranked number 3 in the world by United Nations Human Development Index standards, India is ranked 130.  By any objective assessment that means India is not an enticing country to return to in terms of amenity, life expectancy, educational offerings, and multicultural diversity.

31. In terms of his intentions to stay in Australia obviously that is one of them but as Australia is a very high quality of living country.  The tribunal also notes that he has one brother living in Australia who has obtained citizenship.  He also has a number of cousins and a maternal uncle.  As already noted the applicant has lived here for his whole adult life since he was 18 and that represents approximately, well, not quite but one third of his entire life and so as each day passes his ties to Australia grow stronger and he has a stronger reason to stay in Australia.

32. As has already been referred to, he has been here for seven years on two previous visas, this would be his third temporary student visa application.  The tribunal notes that there are no military service commitments or political or civil unrest issues operating in his home country to deter him from returning.

33. The tribunal notes that his performance and his record as a student in Australia has been exemplary, he is an excellent model student.  But in this particular instance the student visa application is being advanced on a basis that does not serve any educational purpose in the tribunal’s view, at least not one of significance.

34. The tribunal accepts that he would have a decent knowledge of the course that he is studying but ultimately it is not consistent with the current level of education and certainly the tribunal is of the view that it would have minimal relevance for his future employment prospects.

35. The time he has spent in Australia is a significant consideration which operates against the granting of a student visa in this case and suggesting that he is actually attempting to use this student visa program to maintain ongoing residence.  The tribunal notes that his migration history both here and abroad appears otherwise to be exemplary.  In all of the circumstances the tribunal is not satisfied that the applicant meets the criteria contained in clause 500.212 for the grant of a student visa.

36. In case number 1729133 the tribunal affirms the decision not to grant the student visa.

    DECISION

37. The Tribunal affirms the decision under review.

    Dr Jason Harkess
    Member