Sarlagundu (Migration)

[2021] AATA 2496

Sarlagundu (Migration) [2021] AATA 2496 (6 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Srinivas Sarlagundu

CASE NUMBER:  1834856

DIBP REFERENCE(S):  BCC2018/3567808

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         6 May 2021 at 3:06 pm (VIC time)

DATE OF WRITTEN RECORD:                24 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 24 June 2021 at 10:23am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – Provider Registration and International Student Management System (PRISMS) database – pattern of enrolments and cancellations – social and economic conditions in India relative to Australia – immigration history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 November 2018 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 6 May 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. This is an oral statement of the decision and reasons of the Administrative Appeals Tribunal in case number 1834856.  In relation to an application for review brought by Mr Srinivas Sarlagundu.

4. He is a citizen of India and is 35 years of age.  He seeks review of a decision made a delegate of the minister refusing to grant him a Student visa.  The applicant applied for this visa on 19 September 2018.  The visa application was refused by the delegate on 7 November 2018.  He has then lodged a review application with the tribunal on 27 November 2018. 

5. If granted a Student visa permits a non-citizen to enter and remain in Australia to study full-time on a temporary basis. The specific type of visa the applicant applied for is classified under the Migration Regulations as a Student Temporary Class TU Subclass 500 visa. Such visas are issued under the general power to issue visas conferred on the minister or his delegates by the operation of section 65 of the Migration Act. For the visa to be granted the applicant must meet the primary criteria set out in part 500 of schedule 2 of the regulations.

6. The Student visa was initially refused by the delegate because the delegate was not satisfied that the applicant met the primary criteria contained in clause 500.212 of schedule 2 of the regulations.  This is known as the general applicant criterion because it requires the delegate to be satisfied that he was a genuine applicant for entry and stay in Australia as a student. 

7. The delegate’s reasons are set out in a decision record and that record was provided to the applicant when he was notified of the refusal and that obviously prompted the review application being made to the tribunal.  In any event, the reasons of the delegate are not relevant because the tribunal approaches its task as a reviewing body on a de novo basis and conducts a merit assessment and it makes its own independent evaluation based on the evidence before it, which may include the evidence before the delegate and anything further.

8. To determine whether or not the applicant now, right now, today, meets the criteria for the grant of a Student visa the criteria which the tribunal is going to consider are the first of two criteria set out in regulations which is firstly, clause 500.211, this is known as the enrolment criterion.  And then I will consider the genuine applicant criterion, which was determinative before the delegate. 

9. A hearing of this matter convened today by video conference on 6 May 2021.  The applicant appeared and participated at the tribunal to give evidence and present arguments by video and he was assisted by his registered migration agent Mr Charif, who also attended the hearing.  The applicant prior to the hearing filed documents in support of his case, but I should say that this matter initially started in terms of the tribunal coming to consider the matter by review the file sometime after the delegate’s decision.

10. The Tribunal conducted a check of the Australia Government’s PRISMS database, properly known as the Provider Registration and International Student Management System, to determine whether or not the applicant was actually enrolled in a course of a study. 

11. What that PRISMS report revealed were a few things, firstly, that his study history in Australia started in April 2016, and concerns were raised about that history because most of the things that were recorded in that history involved the applicant enrolling and then ultimately not completing those courses over a period of almost five years, because most of the courses were cancelled in that list.  I will come to that in a moment.  It also quite significantly disclosed that the applicant was not currently enrolled in anything at all. 

12. That information raised a couple of concerns with the tribunal before a hearing was even convened, (1) if he is not enrolled in anything then he would not meet the enrolment criterion, and he needs to be enrolled at the time the tribunal makes a decision.  (2) The pattern of conduct of enrolling in courses and not completing them suggests that he is the kind of person who might not comply with his study obligations or have an intention to comply with the conditions of a Student visa.  Potential conditions of a Student visa include, to maintain enrolment in courses of study, to make a satisfactory course progress, not to downgrade courses, and to attend classes. 

13. That pattern of enrolment in cancelling courses over a period of almost five years disclosed a real concern that he might not meet the criteria contained in clause 500.212(b).  In fairness to the applicant, the tribunal wrote to him pursuant to section 359A of the Act to highlight these concerns and communicate particulars of the information found in the PRISMS report pertaining to not being enrolled in anything at all.  Also, the pattern of enrolments and cancellations which suggested he is not the sort of person to comply with conditions of a Student visa were one to be issued to him were put to him in that letter.

14. In accordance with the tribunal’s obligation under section 359A, that letter sent to him which was sent to him on 1 April of this year, advised that if the tribunal were to rely on that information, that would be a reason or part of the reasons for affirming the delegate’s decision, namely, (1) he does not meet the enrolment criterion.  And (2) he does not meet clause 500.212(b) of the Regulations, and so the applicant was invited to comment on or respond to that information and he did responds to that information because the applicant’s representative, Mr Charif wrote on the applicant’s behalf to the tribunal and communicated that since receiving the letter the applicant had enrolled in a course and that course was an Advanced Diploma of Leadership and Management.  They attached to that response a COE bearing reference code C3AF8418. 

15. The letter also sought to explain the reasons for the applicant not completing the most recent course of study in the PRISMS report being an Advanced Diploma of Hospitality and Management, is that the applicant was stressed out about his Student visa refusal, and whether he would be granted a visa or not as a result of the review, and also COVID-19 and the restrictions, and loss of a job, also had an impact and an ability to concentrate on his studies.

16. First of all I should make a finding because I have recently checked the PRISMS database and it does indeed confirm that the applicant has enrolled in the Advanced Diploma of Leadership and Management, so he meets the criterion contained in clause 500.211 because of the COE and the Advanced Diploma of Leadership and Management starting 26 April 2021, finishing 24 April 2022.  The COE codes is T3AF8418.  Which brings me to the more critical issue in this case is whether he meets the genuine applicant criterion, which is found at clause 500.212.  That clause states that for a Student visa application to be successful the applicant must be a genuine applicant for entry and stay as a student in Australia. 

17. The Regulations specify a number of constituent elements that make up this, all of which must be satisfied in order to meet the criteria.  He must demonstrate that he is a genuine authentic applicant for entry and stay in Australia as a student.  That he is proposing to study this Advanced Diploma of Leadership and Management because he generally wants to enhance his skills set that will place him in a better position in terms of employment or job prospects.  Secondly, and as contained in clause 500.212(a), he must demonstrate that he is a genuine applicant for a Student visa because he intends genuinely to stay in Australia temporarily.  Thirdly, he is one who must demonstrate that he intends to comply with any conditions to which the visa may be subject, I have already referred to those, that is 500.212(b) 

18. The Regulations direct that the tribunal must consider an applicant’s intentions as they are at the time the tribunal makes its decision.  That specifically applies to the tribunal to take into account their stated intentions and also other objective considerations.  The tribunal must have regard to the applicant’s circumstances, immigration history, record of compliance with the conditions of any previous visas issued, and any other relevant matter. 

19. There is also direction number 69 issued by the Minister in 2016, which sets out further factors relating to the issue of whether an applicant intends genuinely to stay in Australia as a student temporarily.  It requires the tribunal to consider the applicant’s circumstances in their home country, their potential circumstances in Australia, the value of the proposed course of study to their future, and their immigration history, and any other relevant matter.  I will get to that in a moment. 

20. I will first consider the issue of whether or not I can be satisfied that he intends to comply with the conditions of a visa.  I have already said that the essential conditions of a Student visa are to remain enrolled in a registered course of studies, to make satisfactory course progress, to attend classes and not to downgrade the course of study. 

21. The tribunal has concerns which remain about whether or not the applicant does indeed intend to comply with those conditions were a visa to be issued for him for the purposes of this proposed course, being an Advanced Diploma of Leadership and Management.  Those concerns stem from the history to date of the applicant being in Australia and an international student which goes back to 15 April or at least April 2016 up to the present point in time.

22. The tribunal spent some time exploring these particular issues with the applicant in the course of the hearing and he confirmed generally speaking that the PRISMS record accurately reflects his academic history, save for two courses which appear not to have been included in that.  I will, for the moment, just refer to the PRISMS report.  It starts off at the bottom of the report with the entry relating to English for Academic Purposes which the applicant successfully completed ultimately in July 2016.  There is then an entry for a Master of Professional Accounting, which was supposed to start on 18 July 2016, and it be complete on 28 July 2018. 

23. Now, in the course of evidence the applicant confirmed that was the reason for which his initial visa had been granted offshore while he was still in India, and that is why he permitted to come to Australia to complete this Master of Professional Accounting.  He ultimately did not succeed in that and the applicant agreed that the PRISMS report was accurate, but he transfers it would seem partway through studying that at a university to Holmes Institute.  There is reflected in the PRISMS report another entry starting April 2017, he was supposed to finish that at Holmes in July 2018, but as the PRISMS report reflects it was cancelled because the applicant had notified the provider of cessation of studies on 30 August 2017.  He never successfully completed that Master of Professional Accounting. 

24. The applicant explained to the tribunal that eventually after enrolling in an Advanced Diploma of Business course, which was also cancelled, that he had found an interest or a passion because of a job he had obtained as a chef or a chef helper in a restaurant.  He said that he discovered a passion for cooking and so he pursued that.  The PRISMS report discloses that he then enrolled in a Diploma of Hospitality Management that started from 21 May 2018, finished in May 2019.  Now before that, which does not appear to be on the PRISMS report, but I am satisfied that he completed these courses, he completed a certificate III and a Certificate IV in Commercial Cookery, I have sighted those two certificates on the department file. 

25. Ultimately, what it discloses is that there was certainly a concentrated effort of study as one would expect of a good international student for a two-and-a-half-year period from 2017, the beginning of 2017, up to an including May 2019.

26. What happened then is difficult to understand because he had according to PRISMS then or was supposed to go on and complete an Advanced Diploma of Hospitality Management from May 2019 and that would have been finished if he had maintained studying until May 2020.  For the last two years it would seem the applicant has not been studying anything and that was a concern to the tribunal, and it was raised. 

27. The applicant says that the reason he did not proceed to study with the advanced diploma is that, essentially reflected in the letter from Mr Charif, saying that he became stressed out as a result of the visa refusal and could not study for that reason, and a host of other reasons including COVID coming along and that affecting him because he lost his job as well.  There are some difficulties in understanding that as an explanation because he had his visa refused on 7 November 2018 and was partway through studying the Diploma of Hospitality Management at that point in time.  For the next six months he managed to battle on, it would seem, without any problem in completing the Diploma of Hospitality. 

28. He was on a Bridging visa pending the review of this application and although he was not obliged to study during that period, he certainly was not prohibited from doing so and could have utilised that time to start the course from June 2019 and made a considerable effort to completing it by May 2020.  I do note that COVID did not really strike and hit the world until mid to late February 2020, so to use that as an excuse is not entirely convincing.  I also note that the applicant’s enrolment in the Advanced Diploma of Leadership and Management has only happened in the last couple of weeks, suggesting that it was prompted by the fact that the tribunal was coming to consider this case and make a finding as to whether or not he met the criteria.  The suspicion is that he is enrolled in this not because he had a genuine desire to study but he has a genuine desire to get a visa.  That is a concern obviously that I have.

29. The applicant nevertheless insists that he does want to complete this Advanced Diploma of Leadership and Management because he believes it will come in good use for returning back to India eventually and equipping him with the skills to run a team in his own restaurant.  I have gone on to consider the issue of whether or not the applicant might meet the criteria under clause 500.212(b).  Now, that particular issue refers to the facts he must have an intention to remain here temporarily.  He has declared that he wishes to return to India on completion of this leadership and management course.  I have had regard to the circumstances in his home country.  I asked whether he was able to take a similar course in India.  He referred to the fact that India is still developing and the courses there in relation to leadership and management he asserted are simply not as good as they are here.  He believes he will be better equipped with learning the skills from an Australian course provider than one in India.

30. The applicant though has not provided any material that might provide a comparative analysis that clearly suggests that Australian course providers in leadership and management are of more value than equivalent ones in India.  The applicant and the lack of investigation in relation to that means that the tribunal cannot be satisfied that it is not impossible for him to be able to undertake some other course in India. 

31. I have looked at his family ties and a point was made by both the applicant and Mr Charif about the family ties and I do accept that the applicant has strong ties to India, namely, his mother and his brother who live there.  Although he had not made any return visits to India for the entire duration of his stay in Australia for the last five years.  Obviously, he has not been able to do that since COVID restrictions have been in place, so the last year and a half probably does not really count against him.  But certainly, one would have thought if one had strong ties to his home country that he would have made at least one return visit in the first three to four years of his stay.  I do accept that he has regular contact with his mother and his brother.  I also accept that he has not been here for such a long period of time that he has forgotten India, he has only been here for five years, so he would still have community ties and certainly I accept the references to assets and land that the family has India, that will operate as an incentive for him to return.

32. I have taken into account the social and economic conditions in India relative to Australia.  Relatively Australia is regarded as socially and economically better all things being equal according to the United Nations Human Development Index, Australia makes it in the top 10, number six I think currently.  Whereas India ranks 129. 

33. The applicant has said he does not have any concerns to return to India, I accept that.  In relation to the applicant’s circumstances in Australia, I have taken into account that he obviously does enjoy living here and working here because he has taken that opportunity.  He has resided here on a continuous basis without any return to India for the last five years.  I have taken into account the value of the proposed course and I am not entirely satisfied that there is much value in this Advanced Diploma of Leadership and Management that the applicant has proposed for the purposes of opening the business when he returns.  He already has Certificate III and IV in Commercial Cookery, he also has a Diploma of Hospitality and Management.  He also has according to his evidence a post graduate qualification or a graduate qualification in India.  In my view, he has not demonstrated to the tribunal’s satisfaction that there is any need for him to complete this Advanced Diploma of Leadership and Management in order for him to pursue his goal of opening his own business in India. 

34. I have looked at the applicant’s immigration history, obviously I have already referred to his history as an international student in Australia.  I would characterise it as overall not satisfactory.  He came here original to study a master’s course and did not make any meaningful progress towards that.  There is certainly no evidence of that before me.  He had an opportunity in the last two years to demonstrate that he was a serious international student wanting to study and ultimately he did not make any progress satisfactorily in relation to the Advanced Diploma of Hospitality and Management which was cancelled due to unsatisfactory course progress.  It is a poor study performance out of five years, although I do acknowledge that he did make some progress.  That is to his credit a concentrated two-and-a-half years of studying Certificate III and IV in Cookery and Diploma of Hospitality and Management. 

1. I have had regard to all other direction 69 matters as I am obliged to do in accordance with the recent authority Kumar of the Federal Court, I have only referred to those ones in my reasons which I consider to be of a material significance for the purposes of my ultimate decision today.  In the end having referred to all of those matters, I have great difficulty in accepting that the applicant meets the criteria both in 500.212(a) and also 500.212(b). 

2. I am not satisfied based on my considerations as outlined that he meets either of those.  I find that he does not meet the criteria contained in clause 500.212(a) and clause 500.212(b).

3. That being the case although he meets the enrolment criterion I am not satisfied that the applicant meets the criteria contained in clause 500.212 of schedule 2 of the regulations. 

4. The time now is 3.06 pm, the tribunal affirms the decision not to grant the Student visa. 

   DECISION

5. The Tribunal affirms the decision under review.

   Dr Jason Harkess
   Member