Satapathy (Migration)

[2018] AATA 1368

Satapathy (Migration) [2018] AATA 1368 (5 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashok Kumar Satapathy

CASE NUMBER:  1612993

DIBP REFERENCE(S):  BCC2016/2111891

MEMBER:Jennifer Cripps Watts

DATE:05 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 April 2018 at 8:40am

CATCHWORDS

Migration – Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training Sector) – Whether the applicant is a genuine temporary entrant – Strong personal ties to Australia – Australian citizen wife – Brother lives in Australia – Good academic results – Tribunal is not satisfied the applicant has made plans to relocate to India

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 1 Item 1222 Schedule 2 cls 500.212, 572.223

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 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 to the Department of Immigration for the visa on 21 June 2016. The delegate decided to refuse to grant the visa on 29 July 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

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) because the delegate was not satisfied the applicant is a genuine applicant for entry and stay as a student.

4. The visa that is the subject of this review was refused on 29 July 2016.  The applicant applied for review by this Tribunal on 17 August 2016, within time, and provided the Tribunal with a copy of the Department’s decision to refuse his student visa.  The applicant’s matter was constituted to this member and on 16 January 2018 the Tribunal sent a written invitation to attend a hearing, attaching a copy of an extract from the Migration Act 1958, Direction Number 53 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications, for his ease of reference. 

5. The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before his hearing, specifically addressing the issue of whether he “...is a genuine applicant for entry and stay as a student by referring to Direction No.53.”  The applicant was informed he should provide a copy of his current Certificate of Enrolment (COE).  The applicant responded, indicating he would attend the hearing and provided the Tribunal with some documentary information in support of his application prior to the hearing.  An SMS hearing reminder was sent to the applicant on 6 February 2018.  No error or undelivered message was received back by the Tribunal.

6. The applicant appeared before the Tribunal on 13 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, Ms Jessica Ten Broeke.  

7. The applicant was represented in relation to the review by his registered migration agent, Catherine Higgins, Migration Agent Registration Number 1382147.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

10. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)     the Minister is satisfied that 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)     …

11. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

12. The Direction indicates that the factors specified should not be used as a checklist but rather are intended to guide decision makers to weigh up the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

13. The Tribunal has had regard to all relevant facts and matters, including the documentary and oral evidence provided by the applicant and his wife.  The overall impression the Tribunal was left with is that the applicant, whilst claiming to be intending to return to India to live with his Australian citizen wife, does not consider Australia to be his temporary home and, now that the opportunity has presented itself for him to pursue a legitimate pathway to permanent residency through the partner visa programme, that is what he actually intends to do.  He and his wife said at the hearing that they had discussed but not decided anything about applying for a partner visa yet.  They said that when the applicant finishes his course in the middle of 2018, he will return to India, get things settled, and then his wife will go there to live with him.  He gave quite specific answers about what he and his wife intend to do when they return to India to live together but vague answers about whether or not he intends to apply for a partner visa and does not consider Australia to be his temporary place of residence. 

14. The applicant and his wife have been together for a few years and got married in November 2017.  They were asked what tentative arrangements they had made to depart in mid-2018, when the applicant’s student visa ceases, for example what the applicant’s wife plans to do for work, what they plan to do with their pets (numerous dogs and cats) and with any other assets or liabilities, for example, their residential lease, whether they have booked airline tickets.

15. The Tribunal was satisfied that the applicant and his wife have had fairly detailed conversations about these matters.  For example, they have made arrangements for their pets to be looked after by the applicant’s wife’s family and the Tribunal accepts, on the face of it, that they have these pet minding arrangements available to them.  The applicant’s wife said her husband will depart Australia in mid-2018 and return to India, get things settled and then she will join him which she said may mean that she will need to extend their residential lease beyond mid-year until such time as she does depart Australia to join her husband in India, in the second half of 2018.

16. The Tribunal has taken into consideration that the applicant has a brother in Australia who is a permanent resident or citizen and has lived here since 2008 and that the applicant now has a wife who is an Australian citizen.  The applicant’s wife gave evidence that her close family members reside in or near Perth and also said that she and her sister-in-law (the wife of the applicant’s brother) are “…really good friends” and they sometimes attend the temple in Canningvale.  The applicant spoke in positive terms about his wife’s family and gave detailed information about them which leads the Tribunal to think that he and his wife socialise with her family as well.

17. The applicant has lived with his brother for the majority of the time that he has resided in Australia for the four or so years he has held a student visa and now lives with his Australian citizen wife in Perth.  The applicant, his wife, his brother and sister-in-law socialise and attend temple together.  There appears to be a positive relationship between the applicant, his wife and her family in Australia.  In four years, the applicant has only returned to India twice.  His parents have travelled to Australia during that time, in 2015.  The Tribunal considers that the applicant’s personal ties to Australia are, at the time of this decision, stronger than those he has in India and that he also prefers the lifestyle in Australia and the standard of education.  The Tribunal is not satisfied that if he is granted a student visa and therefore holds a substantive visa which would enable him to apply for a partner visa onshore that he would be motivated to leave or take any steps that would indicate he is a genuine temporary entrant. 

18. Whilst none of these matters alone suggest necessarily that a person may not be intending to reside in Australia on a temporary basis, the Tribunal considers that the applicant’s greater motivation would be to remain living in Australia with his Australian citizen wife.  This is notwithstanding their claim to be planning to live in India.  The Tribunal is not persuaded that this is a genuinely held plan and that it is more likely they will visit India, if they go at all, and then return to Australia to live. 

19. It is accepted, on the face of it, that the applicant and his wife have talked about plans to go to India and have some tentative arrangements in place.  However, the Tribunal is not satisfied the plans the applicant says he has made are plans that he genuinely intends to follow through.

20. The Tribunal accepts and considers it not in dispute that the applicant has been diligent and successful in his studies and that he has received awards and industry accolades in Australia.  However, this is not of itself an indication that he is a genuine temporary entrant.  The applicant has achieved academic success in Australia and, on the evidence he has provided, has gained some useful industry and professional experience in his chosen field of Digital Media.  His success in Australia, in the view of the Tribunal, would be a significant motivation for him to stay in Australia if he can.  It is of concern to the Tribunal that the applicant has not progressed beyond relatively low cost and short VET level courses in the four years he has been a student in Australia, although some weight is given to the courses being compatible with his stated career goals. 

21. The applicant has spent only a limited amount of time in his home country since he was first granted a student visa, in 2014.  The applicant first arrived onshore holding a subclass 676 tourist visa and returned to India when it expired in May 2013.  He applied offshore for a subclass TU-572 student visa, which was granted, and arrived back in Australia in February 2014.  He has resided in Australia holding student or associated bridging visas since then, for around four years.  He has departed Australia twice since then, for a month in 2015 and three weeks in December 2016 to attend his brothers’ weddings.  He married his Australian citizen wife in 2017.  The applicant and his wife were in a relationship in 2016, when the applicant travelled back to India for one of his brother’s weddings, but said his wife did not attend the wedding with him because she could not get leave from her job.  The applicant’s wife confirmed this at the hearing and the Tribunal accepts her reasons for not attending the wedding with her husband in late 2016.  His wife has not been to India, but says she is excited about going there.  At the time of this decision, no arrangements, such as bookings for tickets, have been made for either the applicant, whose course finishes in June 2018, or the sponsor, who says she will probably go to India in the second half of 2018. 

22. The Tribunal has some concern about whether, as they claim, the applicant and his wife are genuinely intending to make India their new home together and has formed the view that this stated plan is to support his student visa application.  It would be one thing if the applicant was claiming to be returning to India in the short term and then saying he intends to return to Australia with his wife to live which, in the view of the Tribunal, would sound plausible.  However, it is entirely another matter to be claiming that he is intending to return to India to live with his wife long term.  

23. The Tribunal accepts that the applicant wants to continue to study and finish his current course.  However, the Tribunal is not satisfied that the applicant considers his time in Australia to be temporary or that he is a genuine applicant for entry and stay as a student.

    Other issues

24. The applicant gave oral evidence that the current residential lease he and his wife have expires in the middle of 2018.  The applicant’s wife gave the same evidence but added that they may extend it for six months, which the applicant did not disclose, in the context of their claimed plan for the applicant to return to India, organise things and then bring his wife to India to live.  The Tribunal places no negative weight on the minor inconsistency about the applicant and his wife’s lease arrangements.

25. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.  Accordingly, the applicant  does not meet cl.572.223(1)(a).

26. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Jennifer Cripps Watts
    Member