Reddem (Migration)

[2021] AATA 5448

Reddem (Migration) [2021] AATA 5448 (15 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vamsidhar Reddy Reddem

CASE NUMBER:  2001326

HOME AFFAIRS REFERENCE(S):          BCC2019/5170170

MEMBER:Peter Newton SC

DATE AND TIME OF

ORAL DECISION AND REASONS:         15 December 2021 at 12:19 pm (NSW time)

DATE OF WRITTEN RECORD:                11 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 11 December 2022 at 5:15pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, residence and study history – study at lower level and in different subject area – reasons for not studying similar course in home country – value of course to applicant’s future – father owns several businesses but applicant plans to work for multinational company then start his own business – unsatisfactory explanations why he cannot return and apply for jobs now – family in home country and friends in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), cl 500.212(a)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 January 2020 (Department’s Decision) to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (Act).

2. At the hearing on 15 December 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant applied for the visa on 15 October 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 Student Guardian visa.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.  The applicant appeared at the hearing before the Tribunal on 15 December 2021 to give evidence and present arguments.  The hearing was held during the COVID-19 Pandemic by Microsoft Teams audio.  The Tribunal exercised its discretion to hold the hearing by Microsoft Teams audio, having regard to the time that has elapsed since the applicant applied for and was refused a visa and the individual circumstances of the applicant which include the applicant is pursuing this application for review to complete a Diploma in Business which he commenced on 11 October 2021 and the need for the applicant to have certainty in relation to his visa status and study rights.  The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams audio.  During the hearing the Tribunal was satisfied the applicant heard and understood the outline given at the commencement of the hearing as to how the hearing would proceed and the questions asked during the hearing which he answered.  The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

5. The Department of Home Affairs has provided to the Tribunal its file relating to the application for a student visa.  The applicant has also provided to the Tribunal documents including a completed Request for Student Visa Information (Request), a three page statement by the applicant (GTE Statement), an Overseas Student Confirmation of Enrolment (CoE) for the Diploma of Business course and a copy of the Department's Decision.  The Tribunal has considered the evidence and submissions of the applicant made at the hearing and the documents provided by the applicant to the tribunal.

   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 clause 500.211 to clause 500.218 must be satisfied by the applicant. The issue in the present case is whether the applicant genuinely intends to stay in Australia temporarily.

7. Clause 500.212 provides:

   “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.”

8. In considering whether the applicant satisfies clause 500.212(a), the Tribunal must have regard to direction number 69, "Assessing the genuine temporary entrant criterion for Student Visa and Student Guardian Visa applications" made under section 499 of the Act (Direction).  The 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.

9. 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.

10. The Direction requires the Tribunal to consider the facts and circumstances of the applicant against each of the factors specified in the Direction.  The Tribunal is required to make an evaluative assessment on each of the factors specified in the Direction and assess, whether on balance, the applicant satisfies the genuine temporary entrant criterion.  I have considered the applicant's evidence and submissions against each of the factors specified in the Direction and make the following evaluative assessments in relation to each factor.

11. In relation to paragraph 9(a) the applicant's home country is India.  The applicant is pursuing his application for review to complete a Diploma of Business course.  The applicant commenced studying that course on 11 October 2021.  The applicant accepts there are similar courses to the Diploma of Business course in his home country or region.  In the applicant's GTE Statement, the applicant states:

    “I've spent ample of my time living in Australia as a student and I explored the idea of study in my home country, however, I did not find a program the same as the one offered in Australia and the Indian education system does not regard diploma courses equally to that of a degree.  Also, having studied here and seeing the teacher methods, I was keen on pursuing my further studies in Australia itself because of the modern technologies and advanced style of teaching which is globally applauded.  I was also happy with the friendly crowd in Australia who welcomes the international students happily.”

12. I consider the applicant is well placed to make an evaluative assessment of the teaching methods in Australia and India because the applicant disclosed that prior to first coming to Australia he completed a Bachelor of Technology, Electronics and Communication Engineering course at the Rajeev Gandhi Memorial College in his home country and since first arriving in Australia he has completed a Certificate III in Light Vehicle Mechanical Technology and a Master of Information and Communication and Technology course.  I am satisfied the applicant has reasonable reasons for not undertaking the study in his home country or region if a similar course is already available there.  I assess this factor in favour of the applicant.

13. In relation to paragraph 9(b) of the Direction, in the Request the applicant disclosed that his father, mother and sister continue to live in India.  The applicant first arrived in Australia on 9 October 2015.  In the Request and during the hearing the applicant disclosed that since first arriving in Australia he has returned to his home country on two occasions.  He returned in January 2017 for one month to visit his family and in August 2017 for approximately two months to visit his family.  Since then, the applicant has not returned to his home country.  In the Request the applicant states that he is constantly in contact with his parents and sister through phone calls and video call over, WhatsApp and Skype.  He states that he talks to them every day.  Accordingly, the applicant is able to maintain contact and his relationship with his family in India whilst in Australia.

14. During the hearing the applicant said that his father has different types of businesses in his home country.  The applicant said that one of the businesses comprises a garage.  During the hearing the applicant indicated that he could work in his father's garage upon his return to his home country.  However, that is not the applicant's career goal.  In his GTE Statement and during the hearing the applicant disclosed that his career goal was to obtain work in the multinational IT industry with companies like Deloitte, Dell, Infosys and Amazon.  In the GTE Statement the applicant indicated that he would seek work as a product manager and IT implementer.  During the hearing the applicant said that his goal was to start an IT business in his home town.  He indicated that he would pursue this goal after working with an IT company for approximately two years.  Accordingly, the applicant's career goals do not primarily include working in his father's business.  Moreover, the applicant is not pursuing his current course of study for the purpose of working in his father's business.

15. During the hearing the applicant said that he has strong community ties to his home country.  However, as the applicant has now been in Australia for approximately six years and has only returned to his home country on two occasions in 2017 and has been able to maintain these ties whilst living in Australia, I do not consider that these community ties provide a significant incentive for the applicant to return to his home country.

16. The evidence establishes that the applicant's ties to his home country comprise his family, community ties and friends I infer he has established.

17. Having regard to the period of time the applicant has been in Australia, and for the reasons I have set out above, I do not consider that these ties would serve as a significant incentive for the applicant to return to his home country.  The evidence does not establish any need or incentive to return to his home country.  He has been able to maintain these ties whilst in Australia for over six years, and I am not satisfied from the evidence that the applicant has any need or incentive to return to his home country.  I assess this factor against the applicant.

18. In relation to paragraph 9(c) of the Direction, the evidence does not enable me to make an evaluative assessment of the economic circumstances of the applicant and whether such circumstances would present as a significant incentive for the applicant not to return to his home country.  In reaching this finding I have had regard to the fact that in the Request in the section that requested information about work experience before arriving in Australia the applicant provided no information, indicating that he did not work in his home country before arriving in Australia. In the Request and during the hearing the applicant disclosed that since first arriving in Australia he has obtained various jobs.  During the hearing the applicant indicated that he has not worked since July 2021.  As indicated, this evidence does not enable me to make an informed assessment of the economic circumstances of the applicant and whether those circumstances would present a significant incentive for the applicant not to return to his home country.  Accordingly, I assess this factor as neutral.

19. In relation to paragraphs 9(d) and (e) of the Direction, in the Request the applicant disclosed that he has no concerns about military service commitments or political or civil unrest in his home country.  I do not consider the absence of such concerns provides an incentive for the applicant to remain in Australia or disincentive from returning to his home country or region.  Accordingly, I assess these factors as neutral.

20. In relation to paragraph 10 of the Direction, the evidence does not enable me to make an informed assessment of the applicant's circumstances in his home country relative to the circumstances of others in his home country.  Accordingly, I assess this factor as neutral.

21. In relation to paragraph 11(a) of the Direction, in the Request the applicant disclosed that he first arrived in Australia on 9 October 2015.  As stated, since then the applicant has returned to his home country on two occasions in 2017 to visit his family.  In the Request the applicant stated that his last visit to his home country was during the period August 2017 to 15 October 2017.  Leaving aside the two periods the applicant has returned to his home country, the applicant has been in Australia for approximately six years.  In the Request the applicant disclosed that from October 2017 to August 2018 he undertook and completed the Certificate III in Light Vehicle Mechanical Technology course and during the period November 2015 to July 2017 he completed the Master of Information and Technology course.

22. The applicant provided to the Tribunal the CoE for the Diploma of Business course, recording a course start date of 11 October 2021 to 20 November 2022.  During the hearing the applicant accepted that he has been in Australia for approximately six years and the total period of study for the courses he has completed in Australia comprises approximately 30 months.  During the hearing the applicant accepted that he has made friends in Australia.  He said he has made friends through the courses of study he has undertaken and through work.  During the hearing the applicant said that he worked in a mechanical shop for approximately one‑and‑a‑half years and he worked for Xeetrade Pty Ltd for a year‑and‑a‑half to two years until July 2021.  He said Xeetrade is a transport company.

23. During the hearing the applicant said that he has lived in his current place of residence for approximately two‑and‑a‑half years.  He said that he has made friendships with people that live nearby.  In the GTE Statement, the applicant states:

    “As to the city, I have familiarised myself with Melbourne City to a great extent in terms of the markets, transport system, as well as weekend getaways and strongly believe it would be in my best interests to finish my diploma from here itself.  I am currently residing with friends and we have been tenants in an apartment for quite some time.  My parents have been very supportive throughout the journey and they are financially helping me with the accommodation expenses.”

24. The evidence establishes that the applicant's ties with Australia comprise his familiarity with the Australian living, study and work environment, friendships and work connections.  I regard a period of approximately six years as a sufficiently long enough time to establish a strong and lasting connection.  I find that the applicant's ties with Australia would present as a strong incentive for the applicant to remain in Australia and I assess this factor against the applicant.

25. In relation to paragraphs 11(b) and (c) of the Direction, during the hearing I pointed out to the applicant that he has now been living in Australia for approximately six years and the study he has completed in Australia since first arriving has only taken 30 months.  I pointed out that prior to first arriving in Australia the applicant obtained a Bachelor of Technology (Electronics and Communication) and since arriving in Australia he has obtained a Certificate III in Light Vehicle Mechanical Technology and a Master of Information and Communication Technology. I pointed out that the applicant has recently commenced the Diploma of Business course which the applicant says in his GTE Statement will teach him to effectively manage the key administrative processes of the business, as well as gain knowledge in team and people management.  The applicant indicated that he is undertaking the current course of study to improve his employment prospects in his home country.  In his GTE Statement the applicant says that his career goal is to obtain work in the multinational IT industry.

26. During the hearing the applicant said that after working approximately two years his goal was to establish his own IT business.  During the hearing I indicated to the applicant that having regard to these matters I was concerned that he was using the student visa program to circumvent the intentions of the migration program and to maintain ongoing residence.  I asked the applicant why he cannot now return to his home country and apply for jobs using the qualification and knowledge he has acquired in Australia.  The applicant said his main intention is to start his own business.  He says he needs to understand the administrative process.  He says his business course will teach him the administrative process, how to manage people and places, and how to organise meetings and implement strategies.  He said he can only get this knowledge from his Diploma of Business course.

27. I pointed out to the applicant that in his GTE Statement the applicant states:

    “I've had good offers from IT firms in the past which makes me more confident that my added skills can fetch better opportunities and help me succeed in the multinational IT industry.”

28. I pointed out to the applicant that he obtained "good offers from IT firms" without the Diploma of Business and I asked the applicant why he cannot now return to his home country to apply for jobs using the qualifications, knowledge and experience he has obtained in Australia.  The applicant answered this question by saying that, "I want to start my business in India".  I do not consider that this is a satisfactory answer to my question and I do not consider the applicant has adequately explained why he cannot return to his home country now and use the knowledge and experience he has acquired to obtain work.  Moreover, in his GTE Statement the applicant states:

    “I have experience with interviews, and I've had good offers from IT firms in the past, which makes me more confident that my added skills can fetch better opportunities and help me succeed in the multinational IT industry.”

29. However, the applicant's long‑term goal is not to work in the multinational IT industry, but to obtain work in the IT industry with the aim of establishing his own IT business in India.  The applicant has not provided any evidence or reasons as to why he cannot now return to his home country and use the knowledge and experience acquired in Australia to seek jobs in IT firms or to establish his own business in India.  Having regard to his evidence I find that there is evidence that the student visa program is being used to circumvent the intentions of the migration program for the purpose of maintaining ongoing residence and not for the genuine purpose of study.  I assess these factors against the applicant.

1. In relation to paragraph 11(d) of the Direction there is no secondary applicant.  Accordingly, I assess this factor as neutral.

2. In relation to paragraph 11(e) of the Direction, having regard to the fact that the applicant first arrived in Australia on 9 October 2015 and has been living in his current place of residence for approximately two‑and‑a‑half years I am satisfied the applicant has a sound knowledge of living in Australia and established living arrangements.

3. During the hearing the applicant said that his current course of study comprises eight units and he has completed one unit.  In the GTE Statement, the applicant sets out why he chose to study at the associated education provider (Innovative Institute of Australia).  He states that he looked at the details of the course and he found units he liked before he enrolled.  Having regard to this evidence I am satisfied the applicant has a sound knowledge of his current course of study and the associated education provider and conducted a realistic level of research before enrolling.  Overall, I assess the factors specified in paragraph 11(e) of the Direction in favour of the applicant.

4. In relation to paragraph 12(a) of the Direction in his GTE Statement the applicant states:

   “The Diploma of Business would teach me to effectively manage the key administrative processes of a business, as well as gain knowledge in team and people management; this well rounded course would equip me with planning and managing conferences, administrative systems, project manager and team leadership.”

5. I asked the applicant whether any of his previous courses of study included any of these units of study.  The applicant said that they did not.  I have set out the courses of study the applicant has completed in his home country and Australia.  I am not satisfied the applicant is seeking to undertake a course that is consistent with his current level of education.  Furthermore, having regard to the applicant's career goal of obtaining work in the IT industry for approximately two years before setting up his own IT business and having regard to the applicant's evidence that he has had good offers from IT firms in the past (without undertaking or completing his current course of study), I am not satisfied that the applicant's current course of study will assist the applicant to obtain employment or improve employment prospects in his home country.  Accordingly, I assess the factors specified in paragraph 12(a) of the Direction against the applicant.

6. In relation to paragraph 12(b) of the Direction, having regard to the contents of the applicant's GTE Statement, I am satisfied that the applicant's current course of study has some relevance to his proposed future employment in the IT industry in his home country, and I give this factor weight in favour of the applicant.

7. In relation to paragraph 12(c) of the Direction, the evidence does not enable me to make an informed assessment of the remuneration the applicant could expect to receive in his home country or a third country, compared with Australia, using the qualifications that he gained from his current course of study.  Accordingly, I assess this factor as neutral.

8. In relation to paragraph 14(a)(i) of the Direction, in the Request the applicant disclosed he has previously been granted a student visa and a 485 Temporary Graduate visa.  The applicant is currently on a bridging visa.  The applicant has not applied for any other Australian visas, and other than the further application for a student visa, which is the subject of this application for review, there are no visa applications yet to be finally determined or refused.  I assess this Australian visa application history as neutral.

9. In relation to paragraph 14(a)(ii) of the Direction, the applicant said that he has not applied for visas to countries other than Australia. I assess this factor as neutral.

10. In relation to paragraph 14(b)(i) of the Direction, during the hearing the applicant accepted that to the best of his knowledge he has complied with the conditions of the visas that have been granted to him.  Apart from the bridging  visa, as the applicant has only been granted one student visa which ceased in July 2017 and as the applicant completed his last course of study in July 2017 and having regard to the findings I have made in relation to paragraphs 11(c) and (d) of the Direction, I do not consider that this compliance history assists me in determining or assessing the applicant's intention to temporarily stay in Australia.  Accordingly, I assess this factor as neutral.

11. In relation to paragraph 14(b)(iii) of the Direction, having regard to the evidence that I have set out when considering paragraphs 11(b) and (c) of the Direction, I find that the student visa the applicant has applied for, if granted, may be used primarily for maintaining ongoing residence. I assess this factor against the applicant.

12. In relation to paragraph 14(b)(iv) of the Direction, during the hearing the applicant said he has not travelled to countries other than Australia and his home country.  Accordingly, I assess this factor as neutral.

13. In relation to paragraph 15 of the Direction, the applicant is not a minor. Accordingly, this factor is not relevant to the assessment of the applicant's intention to temporarily stay in Australia.

14. In relation to paragraph 16 there is no other relevant information to the assessment of the applicant's intention to temporarily stay in Australia.

    CONCLUSION

15. Having regard to the evidence and submissions which I have considered against the factors specified in the Direction, on balance, the factors I have assessed against the applicant outweigh the factors I have assessed in favour of the applicant and the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.

16. Accordingly, the applicant does not meet the requirements of clause 500.212(a) and the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by clause 500.212.

17. 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

18. The Tribunal affirms the decision under review.

    Peter Newton
    Member