Namboori (Migration)

[2019] AATA 2904

Namboori (Migration) [2019] AATA 2904 (8 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Venkata Kiran Kumar Namboori

CASE NUMBER:  1719038

HOME AFFAIRS REFERENCE(S):           BCC2017/1608228

MEMBERs:Sean Baker (Presiding)

Michael Biviano

DATE:8 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 April 2019 at 9:35am   Statement made on 08 April 2019 at 9:45am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – multiple courses completed – further study in fields unrelated to and at lower level than previous studies – period of not being enrolled in course of study – financial circumstances stronger in Australia – supporting evidence of benefits of further study – incentive to return to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), 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 16 August 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 4 May 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 15 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Telegu (Indian) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 as a student because he did not intend to stay in Australia temporarily.

7. 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.

11. The applicant is a 28 year old Indian national, who came to Australia on 18 February 2012. He entered Australia after obtaining on 31 January 2012 an initial student visa TU 573 to study Master of Telecommunications and Network Engineering. Since his initial arrival the applicant was granted:-

    (a)VC-485 (Skilled) visa for the period from 14 March 2014 to 14 March 2016; and

    (b)student visa subclass TU572 which was granted on 21 May 2016 and valid until 5 May 2017.

12. In 2011, the applicant prior to entering Australia, had completed a bachelor degree in Electronics and Communications Engineering at SA College in India.

13. Since arriving in Australia, the applicant undertook the following courses:-

    (a)In February 2012, he commenced studying Master of Telecommunications and Network Engineering at Latrobe University and on 29 March 2012, he transferred courses at Latrobe University to a Master of Information and Communication Technology and on 6 December 2013 he qualified for admission to the degree;

    (b)In April 2016, he commenced an Advanced Diploma of Leadership and Management at Danford College which he completed in March 2017; and

    (c)In April 2017 he commenced an Advanced Diploma of Business at the Gen Institute which he completed in April 2018.

14. The applicant was not enrolled in any course from April 2018 to February 2019 and he did not undertake any studies during that time.

15. Between March 2014 and March 2016, the applicant gave evidence that he worked on a full time basis as an apprentice pursuant to the VC 485-(Skilled) visa. When questioned about the work he performed in that 2 year period he conceded that he had worked at C-Net Technologies as an apprentice for a few months only and undertook no study.

16. In February 2019, the Applicant enrolled at the Australian National College to undertake an Advanced Diploma of Marketing and Communication which is to commence in March 2019 and he is expected to complete such studies in March 2021.  Copies of the offer of the enrolment were provided to the Tribunal.

17. The applicant has since 2013, worked as a console operator/customer service at a BP Service Station. He reported his income to be $30,000 per annum, which is a significant level of income per annum. It is common knowledge that the level of income that the applicant is receiving as a console operator/ customer service is substantially more than he would be receiving in India, working in a comparable position in India, due to Australia’s higher level of wages.

18. The applicant gave evidence that he intends to return to India at the completion of the advanced diploma in 2 years and he intends starting up a business and factory in India to make electrical isolators. The applicant claims that he requires the Advanced Diploma in Marketing and Communications to improve his skills to be able to operate this business, which has yet to be established.

19. The Tribunal is not satisfied that the applicant has made this application to gain a student visa on a genuine basis and that it considers that the primary objective of the application is to maintain an ongoing residence in Australia and to remain in employment in Australia.

20. The Tribunal has reached this decision having regard to the Applicant’s circumstances in that he had initially completed a Masters degree in Australia in 2014, but since 2016 he has completed 2 lower level vocational courses. Since 2016, his studies do not reveal a progression in his education. He is currently enrolled in another lower level Advanced Diploma course at Australian National College in Marketing and Communication which is for 2 years’ duration.

21. Such further extension in study of a further 2 years would extend the Applicant’s stay to a  total of 9 years on both bridging visas and temporary visas. The Tribunal considers that in the circumstances such a long stay, is inconsistent with the stay being on a temporary basis.

22. During his 7 years of study there is a gap where he did not study while on student visas. The Applicant gave evidence that he was not enrolled in a course of study between  April 2018 to February 2019. During that gap in study, the Applicant continued to remain in Australia and work, rather than return home. Such conduct is consistent with wanting to stay in Australia to work rather than study.

23. The applicant’s circumstances in his home country were that that he had completed both secondary and tertiary education in India. He gave evidence that he had not been employed in India, between completing tertiary studies in India and coming to Australia. The Applicant has no assets or property in India. On the other hand, the Applicant has been living in Australia for the last 7 years and he is employed earning $30,000 per annum. The Tribunal finds that his circumstances do not present an incentive to return to India. 

24. The applicant has given evidence that obtaining the Advanced Diploma in Marketing and Communication course would assist him in opening and starting up his electrical isolator manufacturing business. He gave evidence that the cost to start up the business would be A$200,000 and the level of profit would be around $20,000 to $30,000 per month. He was unable to quantify what his income would be from the Business and any such income would be dependent on the Business achieving profit. The cost of establishing and starting the Business was to be funded by his father on a site owned by his father.  However the applicant was unable to provide details of what profit margin the Business would achieve and it had no designs of what electrical isolators it would manufacture in India. There was no commencement date for the Business. The Business was in planning stages only and there is no ready job available. The Tribunal finds that the course may provide some very limited assistance to the applicant in setting up the Business, if it is established but there was no evidence given that the course would assist him in obtaining employment with a third party or improving his employment prospects in India.   

25. The applicant gave evidence that he had identified that there were 3 or 4 similar courses in India to the Advanced Diploma in Marketing and Communication but he considered the course at Australian National College better because the course is more practical.

26. The applicant has ties both in Australia and home in India. The applicant has his parents, and 2 sisters back living in India. But he has no assets or property in India.

27. The applicant gave evidence that he made 6 trips home to India over the time he has been in Australia to visit his family. However half of those visits were concentrated in a 6 month period and for the remaining 6 ½ years he only visited home on 3 occasions.  He travelled home on the following dates:-

    a.in February 2013, he travelled home for 35 days;

    b.in March 2014, he travelled home for 30 days;

    c.in April 2017, he travelled home for 25 days;

    d.in August 2017, he travelled home for 9 days;

    e.in September 2017, he travelled home for 30 days; and

    f.on 6 February 2019, he travelled home for 1 month.

    Whilst considering that these ties may provide the applicant with some incentive to return home, it must be considered in the context of his ties to Australia.

28. The applicant gave evidence that he is living in Melbourne, renting with friends he met at the Gen Institute and Danford College while studying. The applicant has been working as a console operator/customer service at BP since March 2013, and continues to work in that position receiving a substantial income. He continued working in that position even while holding the VC 485 Skilled visa. The applicant gave evidence that while he was holding the VC 485 visa, he worked at C-Net Technologies as an apprentice only for a few months and for the remaining period he lived in Melbourne and worked in his job at BP for that 2 year period. He did not study or perform any other work during that 2 year period. Again from April 2018 to February 2019, he continued working at BP and living in Melbourne, while not being enrolled in a course. 

29. The Tribunal finds that the applicant’s job at BP Australia is a primary consideration for applicant wanting to stay in Australia permanently.

30. It is common knowledge that there is an economic disparity between Australia and India and the economic conditions and wages in Australia are more favourable in Australia than in India for comparable positions. The applicant is currently in employment and his financial circumstances are stronger in Australia and would provide a significant incentive for the applicant not to return home.

31. The applicant did not have any concerns about returning to India and no concerns about military service commitments and political and civil unrest in his home country.

32. There is nothing before the Tribunal to indicate that the applicant has experienced any other visa refusals.

33. However the Tribunal is not satisfied on the evidence that the proposed study is likely to substantially increase his employment prospects and remuneration in his own country, especially to justify the expenses incurred while studying these intended courses in Australia.

34. The Tribunal considers that the above circumstances are consistent with the applicant’s motivations to remain in Australia on a permanent basis.

35. 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).

36. 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.

37. 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

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

    Sean Baker
    Member

    
    

    Michael Biviano
    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.