Medapalli (Migration)

[2020] AATA 5036

Medapalli (Migration) [2020] AATA 5036 (16 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Venkata Srikanth Medapalli

CASE NUMBER:  1929967

HOME AFFAIRS REFERENCE(S):          BCC2019/4200526

MEMBER:Amanda Upton

DATE:16 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 September 2020 at 2:11pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – limited financial ties to home country – applicant changed to Vocational courses – value of courses to future career – decision under review affirmed        

LEGISLATION

Migration Act 1958, s 65; Direction No 69

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 Home Affairs on 11 October 2019 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 23 August 2019. 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 they did not consider the applicant to be a genuine temporary entrant for entry and stay in Australia as a student.

4. The applicant appeared before the Tribunal on 16 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 entry and stay in Australia as a student.

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

8. 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?

9. 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, which is attached to this decision, 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.

10. 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.

Entry and Visa History

1. The applicant in this case is a 26 year old Indian man who first arrived in Australia on 30 June 2017, just over 3 years ago, as the holder of a student visa for the purpose of completing a Master of International Business.

Time Onshore

1. The applicant has not returned home since his arrival in Australia.

Study History

1. Prior to arriving in Australia, the applicant had obtained a Bachelor of Business Administration in India. He has work experience as a business executive over a period of approximately a year.

2. Since his arrival in Australia, the applicant has completed;

   ·     Certificate III & IV in Commercial Cookery

   ·     Diploma of Hospitality Management

3. He has been enrolled in but did not complete;

   ·     Master of International Business

4. He is currently enrolled in an Advanced Diploma of Hospitality Management scheduled for completion in November 2020.

Evidence in Support of Application

1. In support of his application, the applicant has provided a number of documents.

2. The Tribunal has considered these documents and the evidence given by the applicant in reaching its decision.

Applicant’s circumstances in their home country

1. The Tribunal has had regard to the applicant’s circumstances in India as follows;

   Reasons for not studying in home country

   ·Admission to institutes in India is competitive, it requires entrance exams.

   ·Australia is an excellent place to study

   Personal ties to home country

   ·The applicant’s family live in India, he keeps in regular contact with them.

   ·The applicant participates in religious ceremonies both in India and Australia

   ·The applicant’s family has residential property and agricultural land in India, the applicant does not currently own any in his own name.

   ·The applicant has not returned home since his arrival in Australia.

   Military service or civil/political unrest concerns in home country

   ·The applicant raises no such concerns.

2. The Tribunal is unable to accept that applicant’s assertion about study in his home country as compared to Australia, it is a vague claim made without evidence. The applicant has not provided specific details to establish benefits to be gained for him by studying the proposed course in Australia as opposed to studying in his home country considering the financial outlay and disruption required to study in Australia.

3. The Tribunal does not consider that the applicant has strong economic or financial ties that constitute an incentive to return to his home country. The Tribunal notes that the applicant has potential interest in family property however does not consider this to be a financial tie that provides an incentive to return to his home country.

4. The Tribunal acknowledges that the applicant’s family reside in India however the Tribunal finds that these family ties do not present as a significant incentive for the applicant to return to his home country in and of themselves.

Applicant’s potential circumstances in Australia

1. The Tribunal has had regard to the applicant’s potential circumstances in Australia, based on the evidence provided at the hearing, as follows;

   Applicant’s ties with Australia

   ·The applicant does not have any family in Australia, he lives alone.

   Economic Circumstances in Australia as incentive not to return home

   ·The applicant has worked consistently since being in Australia as an IT support member and a laundry assistant. He is currently working as a laundry assistant and earns approximately $30 000 a year. He is still working as the job is considered to be an essential service.

   Evidence visa program being used to circumvent the migration program

   ·The applicant has been enrolled in courses at different levels. He did not complete the course for which he was granted the visa, instead changing to a vocational stream.

   ·The Tribunal is concerned about the change of study pathway to the vocational cookery classes. The applicant told the Tribunal that this was because he no longer found his business studies interesting and considered that the classes he was doing were repetitive considering his previous qualification. He told the Tribunal that he had seen restaurants in Australia with different cuisine and so started to consider hospitality study. The Tribunal does not consider this explanation with respect to change in study to be consistent with the assertion that the applicant makes of of always having wanted to open a restaurant.

   ·The applicant told the Tribunal that he had always planned to open a restaurant given his family business – the Tribunal does not accept this assertion of always wanting to do hospitality on the basis of the applicant’s previous study history including his original study intentions on arrival in Australia and his explanation as to how he came to change study pathway.

   Applicant’s knowledge of living in Australia, their intended course and level of research into their intended course.

   ·The applicant provided general information about his education provider that is in the nature of general promotional material. The information does not relate to his course or his circumstances specifically

2. The Tribunal finds that the applicant has strong economic incentive to remain in Australia due to his strong past/current working history in Australia. The applicant’s ongoing employment presents as an incentive to remain in Australia.

3. The Tribunal acknowledges that the applicant does not have family ties to Australia that may present as a disincentive to return home.

4. The Tribunal notes the applicant’s change in study pathway and whilst it accepts that from time to time people will change pathway due to a genuine desire to re-educate or change career path, it does not consider that the applicant has established such a genuine intention to change career path in the circumstances given his previous work and study history.

5. The Tribunal considers the applicant’s change in study pathway to be an indication of using the student visa program to circumvent the migration program and extend stay in Australia, not for the primary purpose of studying and progressing academically.

Value of the course to the applicant’s future

1. The Tribunal has had regard to the value of the course/s of study to the applicant’s future as follows;

   Is the course consistent with the applicant’s current level of education?

   ·The applicant has previously completed studies at higher level and of a different subject from his current course of study.

   Will the course assist the applicant to obtain employment or improve employment prospects?

   ·The applicant wants to return to India and expand the family hospitality business. He intends on expanding the business to include restaurant services whereas currently they only offer room service.

   ·The applicant provided to the Tribunal a business plan in relation to his proposed plan. The Tribunal considers that the plan is generic and non-specific. The Tribunal does not consider it to be evidence of a genuine intention to pursue a business as the applicant states.

2. The Tribunal accepts that the applicant’s family currently runs a business that is related to hospitality however on the basis of the information provided by the applicant is unable to conclude that the applicant genuinely wishes to expand the business as he says or that his current course will have value in doing so such that it will outweigh the significant cost and disruption required to study in Australia.

3. The Tribunal acknowledges the business plan provided by the applicant however does not consider that is sufficiently specific to determine that the applicant’s plans are feasible and genuine. The Tribunal is unable to conclude that the completion of this course will provide to the applicant or the family business a clear and substantial improvement in employment, remuneration or business turnover such that it outweighs the monetary commitment required for further study.

Immigration History

1. The Tribunal has had regard to the applicant’s immigration history. There is no evidence of other visa refusals or cancellations. The Tribunal makes no adverse finding with respect to the applicant’s immigration history.

Any other relevant matters

1. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69:

   ·Any other relevant information provided by the applicant that may be either beneficial or unfavourable to the applicant.

2. The Tribunal considers that an applicant who is a genuine temporary entrant in Australia for the purpose of studying and to progress academically will be able to demonstrate circumstances that evidence a genuine intention to remain temporarily as a genuine student. The Tribunal acknowledges that these things will be different in each individual case and may change over time with respect to an individual applicant.

3. The Tribunal considers that the applicant has failed to establish such current circumstances and as such the Tribunal does not accept the applicant’s claim to be a genuine temporary entrant

4. Considering the above individually and collectively, 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).

5. 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.

6. 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

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

   Amanda Upton
   Member

   
   

   Attachment – Direction No.69

   DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

   (Section 499)

   I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

   Dated: 18 April 2016

   Peter Dutton

   
   

   Minister for Immigration and Border Protection

   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 of Direction No. 69 - Preliminary

   Name of Direction

   This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

   It may be cited as Direction No. 69.

   Commencement

   This Direction commences on 1 July 2016.

   Interpretation

   Act means the Migration Act 1958.

   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’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

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

   The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

   Preamble

   The Australian Government operates a student visa programme 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 programme 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 of Direction No. 69 - 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.

   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 Subclass 500 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;

   dwhether 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.

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

   i.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;

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

   iii.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

   iv.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 Subclass 500 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.