Netkallu Nagaraju (Migration)

[2018] AATA 4326

Netkallu Nagaraju (Migration) [2018] AATA 4326 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pratap Netkallu Nagaraju

CASE NUMBER:  1708780

HOME AFFAIRS REFERENCE(S):           BCC2016/3887900

MEMBER:M. Edgoose

DATE:17 September 2018

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 17 September 2018 at 4:25pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – Genuine temporary entrant – Completed various courses over 13 years in Australia – Degree course to VET courses – Currently completing vocational course related to future plans – Evidence of lease break and return flight – Decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 499

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 Immigration and Border Protection on 11 April 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 19 November 2016. 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 visas 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 the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 29 August 2018 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 matter should be remitted for reconsideration.

   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 intends genuinely to stay in Australia temporarily.

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 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.

    Background and applicant’s immigration history

11. The applicant is from India and arrived in Australia in February 2005 on a 572 student visa where he completed a Graduate Diploma in Business Studies through Latrobe University between February 2005 and July 2007 followed by a Master of International Business through Deakin University between July 2007 and July 2010.

12. After the completion of his Master of International Business course the applicant went on to complete a range of VET sector certificate and diploma courses. The applicant completed the following courses:

    a.Certificate III in Hospitality and Management through Gurkhas Institute of Technology,

    b.Diploma of Information Technology Networking through Victorian Institute of Technology,

    c.Certificate IV in Retail Management through Australian National College,

    d.Diploma of Retail Management through Australian National College,

    e.Certificate III in Print Communication through Australian National College

    The applicant has successfully completed all courses of study that he has enrolled in since arriving in February 2005.

13. The applicant informed the Tribunal that he was in the final weeks of completing his Diploma of Printing and Graphic Arts through Australian National College. The applicant submitted to the Tribunal a copy of his Confirmation of Enrolment (AAT Folio 14) for this course which stated that the course was due to end on 16 September 2018. The applicant informed the Tribunal that he would be completing this course on 16 September 2018 and was not looking to seek any further enrolments and that he would be returning to India.

14. At hearing the applicant stated to the Tribunal that at the completion of his current course on 16 September 2018 he will be departing Australia and returning to India where he has set up his own online business clothing called WIPO-MADRID.

15. The Tribunal requested the applicant submit to the Tribunal by 7 September 2018 a confirmation of a departure date from Australia and a letter from his leasing agent that he needed to break his lease. The applicant submitted to the Tribunal an airline booking for Thai Airways International (AAT Folio 101). The applicant’s date of departure from Australia is 24 October 2018 flying from Melbourne to Bangkok. A receipt for this flight was submitted to the Tribunal from Gurkhas Travel dated 6 September 2018 for a total amount of AUD $560 (AAT Folio 119). The Tribunal accepts the evidence submitted to the Tribunal by the applicant that he will be departing Australia on 24 October 2018 and returning to India.

16. The applicant submitted a letter from his leasing agent, MICM Real Estate dated 31 August 2018 titled ‘Lease Break – Market Square Condos, 502/118 Dudley Street West Melbourne (AAT Folio 118). The Tribunal accepts the evidence submitted to the Tribunal by the applicant.

17. The applicant informed the Tribunal that he has travelled to Mauritius, Singapore, Malaysia and Thailand where he was granted tourist visas and that he has complied with the migration laws of those countries. The Tribunal accepts the applicant’s evidence that he has complied with the migration laws of those countries.

    The applicant’s circumstances in their home country

18. The applicant stated to the Tribunal that he has his parents and sister living back in India. The applicant informed the Tribunal that he contacts his family back in India on a daily basis via telephone and talks to his sister primarily about his online business. The Tribunal acknowledges that the applicant has maintained regular contact with his family and sister back in India via telephone.

19. The applicant told the Tribunal that he has returned to India twice a year since arriving in Australia and the most recent was in January 2018 for approximately one month. The Tribunal acknowledges that the applicant has returned home twice a year since arriving in Australia in February 2005 and sees that his ties to India, his family and his online business are an incentive for him to return to India at the conclusion of his current course on 16 September 2018.

20. The applicant gave evidence that the reason for not completing his studies back in India was that the courses of study were not available and that the quality of education in Australia was of a much higher standard. The Tribunal accepts the applicant’s explanation and reason for studying in Australia.

    The applicant’s potential circumstances in Australia

21. The applicant informed the Tribunal that he currently lives in West Melbourne by himself and pays AUD $1782 per month for rent and is currently not working. The applicant stated to the Tribunal that he has not worked since arriving in Australia in 2005. The applicant has been financially supported by his parents who have sent AUD $12,475 every couple of months.

22. The applicant’s GTE statement to the Department (DIBP Folio 53 – 62) provided a comprehensive reflection on the applicant’s time in Australia and clearly stated his passion for the travel and clothing industry industry and that he has set up his own online clothing company called Casual365. The applicant also stated that he is not interested in working in Australia and that he has his parents back in India waiting for him to return home. The applicant also mentioned that at the completion of this course ‘I want to head back to India and start working more efficiently and effectively’. The Tribunal acknowledges the applicant’s statement and that his incentive is to return to India at the conclusion of his current course and to pursue his online business interests.

23. The Tribunal has had regard to the applicant’s GTE statement (AAT Folio 53b-56) that mentioned the applicant’s reason for undertaking his current course in printing and graphics. The applicant stated the following ‘I am on the verge of completion of those courses for which Visa was applied for but I was refused by the delicate study I did not appear to be a genuine temporary entrant but now that I have successfully completed the course I feel I have met the requirement of being a genuine entrant and now I plan to depart Australia and want to leave Australia with an impeccable record rather than a record with integration where I say I had visa refusals and such things’. The Tribunal accepts that the applicant genuinely intends to depart Australia at the completion of his current course and return to India where he has established his own online business.

24. The applicant stated to the Tribunal that he has no issues of concern back in India.

    Value of the course to the applicant’s future      

25. In his oral testimony to the Tribunal the applicant asserted on a number of occasions the completion of the Diploma of Printing and Graphic Arts through Australian National College on 16 September 2018 he will return to India where he has established his own online clothing business. The Tribunal acknowledges the value of the Diploma of Printing and Graphic Arts course is relevant to the applicant’s future plans in further developing his online clothing business on his return to India.

26. Although the applicant has been in Australia for over 13 years the Tribunal accepts that the applicant will depart Australia on 24 October 2018. As requested by the Tribunal the applicant submitted a break of lease letter and his return airline ticket to India dated 24 October 2018.

27. The Tribunal notes that the applicant has maintained a focused approach towards his studies since arriving in Australia and that his plan for the future is clear and that at the completion of his current course he intends genuinely to depart Australia and to return to India to continue developing his online clothing business.

28. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

29. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

30. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

31. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    M. Edgoose
    Member