Naganahalli Bommegowda (Migration)

[2020] AATA 2807

Naganahalli Bommegowda (Migration) [2020] AATA 2807 (20 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kowshik Naganahalli Bommegowda

CASE NUMBER:  1827684

HOME AFFAIRS REFERENCE(S):          BCC2018/3025616

MEMBER:Vanessa Plain

DATE:20 April 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 20 April 2020 at 1:32pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant as student – enrolment in Vocational courses – no financial ties to home country – employment in Australia – limited value of studies to career development – maintaining residence in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 500.212, Direction No 69

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 12 September 2018 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 11 August 2018. 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).

4. The applicant appeared before the Tribunal on 17 April 2020 to give evidence and present arguments.

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 applicant for entry and stay in Australia as a student.

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

11. The applicant in this case is an Indian male who first arrived in Australia on 15 February 2013 on an initial Student (Class TU subclass 573) visa to study a Master of Information Technology course.

12. On 8 May 2015, the applicant was granted a Temporary Graduate Skilled visa (subclass 485) which expired on 8 May 2017.

13. The applicant then applied for his second student visa which was granted on 1 June 2017 for the purpose of studying an Advanced Diploma of Leadership and Management. 

14. One day before the expiry of his second student visa, the applicant applied for his third student visa which is the subject of this application. 

    Time Onshore

15. The applicant is currently enrolled in an Advanced Diploma of Marketing and Communication which is scheduled to conclude in August 2020, thereby, thereby extending the applicant’s time in Australia to approximately 7 years.     

16. Since arriving in Australia in 2013, the applicant has spent approximately 80 days outside Australia in the form of returning home on two occasions, to visit his family.    

    Study and Work History

17. Prior to arriving in Australia, the applicant completed studies in Mechanical Engineering at a university in his home country.  He has previously worked as a project engineer prior to arriving in Australia. 

18. Since arriving in Australia, the applicant has undertaken the following courses:

    ·Master in Information Technology which he completed;

    ·An Advanced Diploma in Leadership and Management which he completed;

    ·A Diploma in Marketing and Communication which he completed; and

    ·An Advanced Diploma in Marketing and Communication which the applicant is studying presently and which is scheduled to conclude in August 2020.

    Evidence in support of application

19. The applicant did not provide a GTE statement in support of his review application.  The applicant did provide a response to request for information, together with various academic documents.  The Tribunal has considered these documents, together with the applicant’s oral evidence at hearing. 

    Applicant’s circumstances in their home country  

20. The Tribunal has had regard to the applicant’s circumstances in India, as follows:

    Reasons for not studying in home country

    ·The applicant is not studying in his home country because even though similar courses area available, studying in Australia provides him with better knowledge and understanding of subjects an provides better opportunities. 

    Personal ties to home country

    ·The applicant’s parents reside in India. 

    ·The applicant did not provide evidence of any assets or property that he may own in India. 

    ·The applicant has returned home on 2 occasions to visit his family, since arriving onshore in 2013.

    ·The applicant has stated he has no community ties in India.

    Economic circumstances in Australia as incentive not to return home

    ·The applicant did not give evidence in his Response regarding employment in Australia.

    ·In his oral evidence, the applicant stated that he had worked as a window cleaner at Squeaky Clean for approximately 1 year and he also worked as a team leader for Delaware North, working 20 hours per week for $24.00 per hour, for 2 to 3 years.

    Military service or civil/political unrest concerns in home country

    ·The applicant has no such concerns.

21. The Tribunal finds that the applicant has failed to demonstrate that he has undertaken any significant research into the availability of the course in his home country, which is not the behaviour of a genuine student.

22. The Tribunal finds that the applicant does not have significant incentives to return to India, demonstrated by the fact that he has been in Australia for approximately 7 years and has only returned home twice to visit his family, which suggests they do not present as a significant incentive to return home.  Moreover, the applicant has admitted he has no community ties in India.

23. Moreover, there is no evidence before the Tribunal that the applicant has any financial ties to India, which may serve as an incentive to return home after the conclusion of his studies. 

24. The Tribunal finds that the applicant has demonstrated that he has a reasonable economic incentive to remain in Australia, demonstrated by his working history.  The applicant’s working history, which is wholly unrelated to his areas of study, causes the Tribunal to be concerned that the applicant is motivated to remain in Australia for economic reasons, rather than out of any genuine desire to be a student. 

25. The Tribunal places significant weight on the fact that the applicant has been in Australia since mid 2013 and has undertaken several courses which are not consistent with one another, which are not consistent with the applicant’s study and work history before entering Australia and which are a regression from his previous qualifications, as being behaviour that is inconsistent with that of a genuine student. 

26. The Tribunal informed the applicant that his study history might be the reason or part of the reason for affirming the Delegate’s decision and invited the applicant to respond.  The applicant stated that he has IT work history and if one wants to obtain management roles one has to obtain management qualifications, if one works in sales, one also needs qualifications for managerial roles. 

27. While the Tribunal accepts that individuals may choose different areas of study on the basis of a change of decision as to career course, the Tribunal cannot be satisfied that the current course in which the applicant is enrolled will further assist his career development or earning potential in view of the qualifications he already holds.  The applicant already holds significant engineering and IT qualifications and a Diploma in Leadership and Management, he is more than qualified to return to India and work in the IT.    

    Applicant’s potential circumstances in Australia  

28. The Tribunal has had regard to the applicant’s potential circumstances in Australia, based on his evidence at the hearing, as follows: 

    Applicant’s ties with Australia

    ·The applicant stated in his Response that he has no ties to Australia

    Evidence visa program being used to circumvent migration program

    ·The applicant has been enrolled in several courses since 2013 and is currently enrolled in a VET level course which is inconsistent from a subject matter perspective with his Bachelor and Masters degree level studies.  The Advanced Diploma in Marketing and Communication he is currently studying is a regression from his Bachelor and Masters level studies.

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

    ·The applicant gave evidence that his education provider is a friendly and welcoming university that helps students to concentrate on their studies and excel in their academic career. 

29. The Tribunal is unable to conclude that the applicant has undertaken any significant research into his proposed course, course contents, education provider or educational objectives.  This behaviour is inconsistent with that of a genuine student.

30. Due to the nature of the courses the applicant has undertaken as set out above and the length of time he has been in the country, in circumstances where his current studies are a regression from his previous studies and inconsistent with his work history, the Tribunal is of the view that the applicant is enrolling in his current course with the primary intention of attempting to circumvent the intention of the student migration program and remain in Australia on a more permanent basis.   

31. Further, while it is not uncommon for an applicant to re-educate themselves or make a change in study plans or work pathways, the Tribunal finds that it is not consistent with the behaviour of a genuine student to seek to change pathways to the extent that the applicant has (evidenced from the courses set out above) where it is not objectively demonstrated how those pathway changes will be beneficial to the applicant in the future, to an extent that would outweigh the financial commitment involved in doing further study.  

    Value of the course to the applicant’s future

32. The Tribunal has had regard to the value of the courses of study to the applicant’s future, as follows:

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

    ·The Advanced Diploma of Marketing and Communication is a regression from the Masters degree the applicant has already completed in Australia.

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

    ·The applicant contends that the course will help him find better opportunities as well as enhance his skill set and assist him obtain higher positions/opportunities.   

    Relevance of course to past study?

    ·The applicant already holds a Bachelor degree in Mechanical Engineering, a Masters degree in Information Technology and an Advanced Diploma of Leadership and Management.

    Expected remuneration using qualifications in home country compared to what is receivable in Australia?

    ·The applicant did not give evidence as to remuneration.

33. The Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to his future .  The Tribunal is unable to accept the applicant’s assertions as to the value of the course to his future as he has not provided any objective evidence as to how the completion of his current course will add value to his earning capacity given the degrees he already holds, nor has he provided any objective evidence of job opportunities in India utilising the qualification he seeks to complete. 

34. Further, given the extent of the applicant’s study history, the applicant has not objectively demonstrated that the completion of the nominated course of study will improve his remuneration prospects in his home country to an extent that is outweighed by the current cost of completing the course. 

35. The applicant already holds significant degrees and a vocational qualification as set out above, as such, the Tribunal is of the view that the applicant has demonstrated that he is more than qualified to return home and seek employment in the IT field.       

    Immigration history

36. The Tribunal has had regard to the applicant’s immigration history.  There is no evidence of other visa refusal or cancellations.  However, the Tribunal is concerned by the fact that the applicant has an extensive history of visa applications and has applied for the student visa the subject of this application the day before the expiry of his second student visa.  The timing of the application, coupled with the applicant’s study history, is of concern to the Tribunal, as it may suggest that the applicant is motivated to remain in Australia for purposes other than study.          

37. The applicant’s visa history and study history demonstrate that the applicant has spent approximately 7 years in Australia, where he has undertaken employment that is unrelated to his areas of study.  The Tribunal does not find this behaviour to be consistent with that of a genuine student who intends to remain in Australia temporarily.  Rather, the Tribunal finds that this behaviour demonstrates an intention to use the student migration program to maintain ongoing residence in Australia.    

    Any other relevant matters

38. 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.

39. 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 lawful means to remain in Australia.   

40. Although the applicant provided information to the Tribunal demonstrating that he has successfully completed studies undertaken to date, considering all the circumstances and all the evidence before the Tribunal, the Tribunal does not accept the applicant’s claims to be those of a genuine temporary entrant.

41. 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).

42. 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.

43. 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

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

    Vanessa Plain
    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.