Shah (Migration)

Shah (Migration) [2018] AATA 1367 (9 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dhaval Shah
CASE NUMBER:  1700292
DIBP REFERENCE(S):  BCC2016/2514289
MEMBER:Michael Ison
DATE:9 April 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 09 April 2018 at 6:59pm
CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is a genuine temporary entrant – Completed Bachelors course – Reasonable academic progress – Further study plans – Masters course relevant to applicant’s proposed career – Not enrolled in a course of study – Enrolment application rejected by five universities – Able to study Masters course in India – Strong economic incentive to remain in Australia
LEGISLATION
Migration Act 1958 ss 65, 499
Migration Regulations 1994 Schedule 2 cls 010.611, 500.211, 500.212 Schedule 8 Condition 010.611

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 December 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is Mr Dhaval Shah, a 24 year old Indian citizen.
Mr Shah applied for the visa on 29 July 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Mr Shah applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that Mr Shah did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that Mr Shah, when interviewed by a Departmental officer in New Delhi, demonstrated little knowledge of his then current course, being a Bachelor of Networks, did not have a plausible reason for not studying the same course at much less cost in India, could not describe the responsibilities of the roles he said he was hoping to pursue on completion of his studies and had future plans that the delegate found were vague and uncertain.[1]
[1] Tribunal file, folios 10-11.
On 21 February 2018 the Tribunal wrote to Mr Shah advising him the Tribunal could hear his application on 1 March 2018. The Tribunal asked Mr Shah to confirm in writing whether he agreed to a shortened period for notification from the Tribunal for him to attend a hearing.
On 22 February 2018 Mr Shah wrote to the Tribunal agreeing that the period for notifying him to attend a hearing at the Tribunal could be shortened.
The Tribunal wrote to Mr Shah on 23 February 2018 inviting Mr Shah to attend a hearing on 1 March 2018 and requesting Mr Shah provide the following information prior to the hearing of his application:
·A copy of a current Certificate of Enrolment (COE);
·Documents that showed Mr Shah was currently enrolled in a course or has an offer of enrolment;
·Documents that show Mr Shah’s past studies in Australia, attendance certificates, academic transcripts and certificates of completion; and
·A written statement addressing the issue of whether Mr Shah is a genuine applicant for entry and stay as a student by reference to Ministerial Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act (Direction No.69).
Mr Shah provided photocopies of part of his passport, a letter under seal confirming completion of his Bachelor of Networking and his academic transcript for those studies.

Prior to the hearing Mr Shah sent the Tribunal the following documents:
·On 21 February 2017 a nine page statement of purpose dated the same day setting out why he had applied for the Student visa in July 2016 and responding to the reasons for the delegate’s decision of 20 December 2016. Mr Shah also provided a summary and copies of actual academic transcripts for his failed Diploma of Computing studies and his progress with his Bachelor of Networking studies;
·On 28 November 2017 a letter from Melbourne Institute of Technology under seal certifying that Mr Shah had completed the requirements for the Bachelor of Networking on 3 November 2017 and enclosing his academic transcript for those studies.
The hearing
Mr Shah appeared before the Tribunal on 1 March 2018 to give evidence and present arguments.
Mr Shah was assisted in relation to the review by his registered migration agent, who attended the hearing.
The Tribunal had a copy of the Department’s file and the Tribunal’s file for this application. The Department’s file included Mr Shah’s application for the student visa, all the documents submitted with that application, a request for further information from the Department and Mr Shah’s response, including an undated one page statement of purpose setting out Mr Shah’s reasons for studying in Australia.
During the hearing Mr Shah handed the Tribunal the following documents:
·a one page email from Federation University Australia dated 28 February 2018 declining Mr Shah’s application for enrolment;
·a two page chain of emails to and from Melbourne Institute of Technology dated 26 to 28 February 2018 with the last email confirming the Institute had declined Mr Shah’s application for enrolment;
·a one page email from Charles Sturt University giving Mr Shah until 12 March 2018 to enrol in a course of study at the University.
After the hearing Mr Shah submitted the following documents to the Tribunal:
·A covering email dated 7 March 2018;
·Mr Shah’s one page tax payment summaries for 2015–2016 and for 2016–2017;
·A two page chain of emails to and from Charles Sturt University dated 22 February 2018 to 6 March 2018 with the last email confirming that the University had declined to accept Mr Shah’s application for enrolment.
The Tribunal informed Mr Shah of the following matters at the hearing:
·a summary of the findings of the Department from its decision letter dated 2 December 2016;
·the Tribunal would be limiting its review to the matters raised in the decision of the delegate of the Minister, in accordance with paragraph 8.2 of the practice direction issued by the President of the Tribunal titled ‘Conducting Migration and Refugee Reviews’;
·that a major issue on review was whether Mr Shah was a genuine applicant for entry and stay as a student because he intends genuinely to stay in Australia temporarily having regard to his circumstances and immigration history, the considerations set out in Direction No.69, as relevant to Mr Shah and any other relevant matter;
·the Tribunal accepted that Mr Shah, having completed his Bachelor of Networking since the delegate’s decision in December 2016, is a genuine student in the sense of having completed his intended study. The Tribunal indicated to Mr Shah that the focus of the hearing would be whether Mr Shah is a genuine student in the sense of genuinely intending to stay in Australia only temporarily by returning to his home country after completing his study;
·of the considerations laid out in Direction No.69 as summarised below;
·that it is a mandatory requirement under cl. 500.211 that Mr Shah be enrolled in a course of study and his failure to be enrolled is a potentially fatal impediment to Mr Shah being able to be granted a student visa; and
·that the Tribunal had a copy of Mr Shah’s Provider Registration and International Students Management System (PRISMS) records and movement records but did not consider either contained information that was adverse to his application. The Tribunal explained to Mr Shah what the PRISMS and movement records are and asked if he wanted to make any comment about his academic record or movement record. Mr Shah took the opportunity to comment in detail on his academic record in Australia including why he had failed his Diploma studies and changed his studies from the Bachelor of Information Technology to the Bachelor of Networking.
Applicant’s evidence at the hearing and written submissions from or on behalf of the applicant
Mr Shah gave oral evidence and provided written submissions to the Tribunal or Department setting out his circumstances.
Mr Shah said he arrived in Australia in August 2013 to study a Bachelor of Information Technology.
Mr Shah initially completed a five week English course but could not complete his Diploma of Computing leading to the Bachelor of Information Technology as, in Mr Shah’s own words he “was not a prized student at the time”.
Mr Shah’s academic transcripts and his own summary of them show that from 28 October 2013 to 13 July 2015 Mr Shah completed seven units of his Diploma of Computing, but failed three units, including one unit three times. The Diploma of Computing is normally a 12 month course (although there are shorter, fast track study options).
Mr Shah eventually enrolled in a Bachelor of Networking which commenced on 20 July 2015 which, with credits for six units from his previous studies, he was due to finish on 30 December 2017. Mr Shah completed those studies early on 6 November 2017 and also gave evidence that he was a volunteer mentor for other students on some subjects in the course.
Since completing his studies Mr Shah says he has tried to enrol in a Master of Networking but has been rejected by five universities due to the delegate refusing to grant Mr Shah a student visa in December 2016 and due to the uncertainty of the outcome of his application for review of that decision with the Tribunal.
At the end of his studies in Australia he intends to seek a job in India in the information technology field and look after his 62 year old father and 51 year old mother, who are both in good health, although his father has non-insulin dependent diabetes. Mr Shah indicated his older brother is working in Canada and does not intend to return to India to look after their parents.
Mr Shah told the Tribunal he wants to study a Masters because it will improve his employment prospects in India and also the remuneration he can achieve. Mr Shah indicated he could get a job as a network analyst, systems administrator, network security officer or a network administrator and earn around AU$12,000 per annum. He expects a Masters would take two years and he could return to India in mid-2020.
Mr Shah also told the Tribunal that following the Masters he would like to study a Doctor of Philosophy in Networking as he could then get an even better job and pay in India. He thought a PhD would take him around three years to complete. Mr Shah indicated he could get a job as a professor or teaching Masters students and would expect to earn around AU$36,000 per annum. Mr Shah said he has a friend who has a PhD and is a professor at a university, so he believed his expectations are reasonable.
Mr Shah told the Tribunal he could not undertake the studies in India because the universities there do not offer a Masters of Networking, only a Masters of other information technology courses. When the Tribunal discussed this with Mr Shah he was insistent that despite India having a large information technology industry and large education system, he could only study the Masters of Networking in Australia and not India.
When Mr Shah returns to India he said he would live at his father’s house and have a low cost of living compared to Australia.
Mr Shah gave evidence he is currently living in a share house with four friends. His share of the rent is $370 per month. In post hearing submissions Mr Shah submitted a statement of living expenses that itemised his expenses and showed a total of $32,749 in expenses for 2015–2016. This figure was increased by a presumably one off purchase of a motor vehicle for $6,000. As the information was provided after the hearing and was not able to be tested by the Tribunal, the Tribunal has given this information some, but only limited weight.
Mr Shah stated he is working casually at the Melbourne Cricket Ground as a kitchen attendant, where he works 30 to 35 hours per fortnight and is paid on average $26.50 per hour.
As noted above, after the hearing Mr Shah provided his tax payment summaries for 2015–2016 and for 2016–2017 which show:
·In 2015–2016 Mr Shah earned $36,124 and paid tax of $5,432 for a net income of $30,692;
·In 2016–2017 Mr Shah earned $40,175 and paid tax of $5,786 for a net income of $34,389.
Toward the end of the hearing Mr Shah’s registered migration agent made oral submissions to the Tribunal that:
·Multinational information technology companies pay the same remuneration globally and there is now migration to India of highly skilled information technology professionals from other countries;
·Mr Shah was not in the real world when talking of his ambition to undertake PhD studies and there is a significant difference between having the ambition to do something and actually doing it. The representative did not think a PhD was a realistic aim for his client but thought Mr Shah could complete a Masters;
·A PhD would take around four and a half years to complete and Mr Shah would need to return to India to support his father who has limited resources to continue to support Mr Shah’s studies in Australia; and
·The delegate of the Minister in their decision letter of 20 December 2016 referred to Pakistan when Mr Shah is from India[2]. Mr Shah’s representative was concerned that this mistake may have tainted the whole decision if the delegate thought Mr Shah was from Pakistan rather than India. Mr Shah expressed similar concerns in his submission to the Tribunal dated 21 February 2017.
[2] Tribunal file, folio 11 (back).
The Tribunal is satisfied, through reading the whole decision in context, that the delegate was aware and made their decision on the understanding that Mr Shah is from India. The Tribunal considers the reference to Pakistan in the decision to be a typographical error only.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 Mr Shah is a genuine applicant for entry and stay as a student temporarily in Australia.
Enrolled in a course of study (cl.500.211)
Clause 500.211 requires as follows:
(a) the applicant is enrolled in a course of study.
At the time of hearing and at the time of this decision Mr Shah is not enrolled in a course of study. This means Mr Shah cannot be granted a Student visa. Without an enrolment it is impossible for the Tribunal or the Department to work out related matters such as the amount of financial support and what amount of health insurance cover Mr Shah will be required to have. This is why being enrolled in a registered course of study is a mandatory criteria that must be satisfied at the time a decision is being made on the application for a Student visa.
At the time of the delegate’s decision Mr Shah was still enrolled in his Bachelor of Networking.
At the time of the Tribunal’s hearing Mr Shah had completed his Bachelor of Networking and did not have an enrolment in any other course.
At the time of the Tribunal’s hearing the Tribunal accepted that Mr Shah had written advice that he could still enrol in a course of study at Charles Sturt University.
For this reason, the Tribunal proceeded to hear evidence from Mr Shah about whether he is a genuine student on the basis of being a genuine applicant for entry and stay in Australia as a student.
In relation to the three emails from education providers refusing Mr Shah’s application to enrol, the Tribunal notes:
·The emails from Federation University Australia and Charles Sturt University specifically refer to Mr Shah not having a visa and the matter being before the Tribunal as part of their reasons for not accepting Mr Shah’s application for enrolment; and
·The email from Melbourne Institute of Technology states only that Mr Shah failed to meet their genuine temporary entrant requirements.
The Tribunal accepts these emails support Mr Shah’s evidence noted at paragraph 21 above.
Mr Shah has not provided any written evidence to the Tribunal since the hearing that he has enrolled in a course of study with an approved education provider.
The reasons for non-enrolment are immaterial. There is no discretion for the Tribunal to remit an application for a Student visa back to the Department for reconsideration or for the Department to grant a Student visa under clause 500 of Schedule 2 to the Regulations where the applicant is not currently enrolled in a course of study.
As Mr Shah is not currently enrolled in a course of study he does not meet the mandatory requirement in cl.500.211 for the grant of a Student visa and therefore the decision of the delegate must be affirmed.
As the Tribunal did not conduct the hearing on the basis of Mr Shah’s non-enrolment at the time of hearing, the Tribunal did not seek specific submissions from Mr Shah or his agent in response to the Tribunal’s indication that Mr Shah’s failure to be enrolled in a course of study would be fatal to his application for a Student visa.
For this reason the Tribunal in this decision will proceed to consider whether Mr Shah is a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl.500.212)
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?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69. 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.
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.
The applicant’s circumstances in their home country
Reasons for not undertaking study in their home country

The Tribunal does not accept Mr Shah’s evidence that he cannot study a Master of Networking in India. As discussed with Mr Shah during the hearing, the Tribunal considers that India has a very large tertiary education system with considerable focus on information technology courses and skills. It does not seem plausible to the Tribunal that Mr Shah could not study an equivalent course to that known in Australia as (computer) networking, however that course may be titled in India.
In his submission to the Tribunal dated 21 February 2018 Mr Shah stated in relation to his Bachelor of Networking that he was studying at the time of the delegate’s 2016 decision:
(4) Officer has questioned that why I am not studying in my home country where the similar courses available with cheaper costs and recognised worldwide. …
It’s true and I am totally agreed with the officer that it was cheaper in my home country, would like to explain here little bit that, I am seeking for quality education with International exposure.[3]
[3] Tribunal file, folio 22.
The Tribunal accepts that Mr Shah is studying in Australia because he wants to pursue an international education. The Tribunal finds that Mr Shah could study the courses he has studied or proposes to study in Australia in India at far less cost and does not accept Mr Shah’s evidence that he needs to study in Australia to receive a quality education. In the Tribunal’s view it is a well accepted matter of public knowledge that graduates of Indian universities, particularly with information technology qualifications, are well accepted locally and internationally.
In this context, the Tribunal finds that Mr Shah’s reasons for not studying in India do not support his evidence that he intends genuinely to stay in Australia temporarily.
Applicant’s personal ties to their home country
The Tribunal accepts that as Mr Shah’s parents remain in India he has personal ties to India that provide some incentive for Mr Shah to return to India, including most significantly the eventual need to return to India to look after his parents. Usually the responsibility in India for a son to look after their parents would fall to the eldest son, but the Tribunal accepts Mr Shah’s evidence that his older brother is in Canada and has no short term or other plans to return to India.
Mr Shah has returned once to India in over four and a half years in Australia, being for just over six weeks in 2016. However, the Tribunal accepts that with the technology infrastructure available in many parts of India it can be relatively easy for students such as Mr Shah to maintain regular communication with relatives overseas.
The Tribunal finds that this consideration provides some, but in the context of Mr Shah’s overall circumstances, not significant support for his application.
Applicant’s potential circumstances in Australia
Applicant’s ties with Australia that present as a strong incentive to remain in Australia
Mr Shah has been living in Australia since August 2013 and appears well settled in his living arrangements.
Based on Mr Shah’s evidence the Tribunal is of the view that Mr Shah has a strong incentive to remain in Australia.
Mr Shah has provided documentation to the Tribunal that he earned, after tax, $34,389 last financial year. As the documentation was in the form of a ‘PAYG payment summary – individual non-business’ provided by Mr Shah’s employer, Spotless Services (Australia) Ltd, the Tribunal accepts it as an accurate statement of Mr Shah’s income.
Mr Shah’s own statement of expenses provided after the hearing states that in 2015–2016 he had, excluding the purchase of a car, $26,749 in expenses. This leaves a positive balance between net income and Mr Shah’s estimate of his annual expenses of $7,640.
Mr Shah’s annual income, if divided by the average hourly pay rate he told the Tribunal he is paid, equates to an average of just over 29 hours worked per week for 52 weeks of the year. If this is the case, even allowing for potential full-time employment during times when classes are not being held, Mr Shah appears to be working in breach of condition 8105 of his Bridging visa A.
The relevant part of condition 8105 provides that the visa holder must not work in Australia more than 40 hours per fortnight while their course is in session. That condition is applied to Mr Shah’s Bridging visa A through the effect of cl.010.611(4) of Schedule 2 of the Regulations, being the condition that applies to the visa Mr Shah held at the time of his application.
Condition 8105 is one of seven conditions that must be applied to all Student subclass 500 visas due to the operation of cl.500.611(1).
Mr Shah was studying up until 6 November 2017 and so for much of the 2016–2017 financial year was both studying and working such that Mr Shah had to comply with condition 8105.
The Tribunal discussed with Mr Shah whether his income levels in Australia provided incentive for him to remain in Australia. Mr Shah told the Tribunal he does not like his part-time job in Australia, does not see it as a career and only works in Australia to cover his costs of living here.
On the evidence and information provided to the Tribunal by Mr Shah, the Tribunal does not accept this is the case as it appears Mr Shah is earning significantly more than he is spending on living in Australia.
Mr Shah’s current income in Australia exceeds even his own estimate of what he could earn in India if he obtained a Masters and even more than he could earn if he obtained a PhD in Networking and became a professor working in a university.
In these circumstances, the Tribunal finds that Mr Shah has a very strong financial incentive to remain in Australia and to continue working, where he will earn more than he can in India both currently and for the foreseeable future.
The Tribunal accepts that there is a significant cost of living differential between India and Australia. However, the Tribunal does not accept that Mr Shah’s own, untested summary of expenses reflects an accurate recording of the living expenses of someone like Mr Shah who is living in a share house with four others.
The statement provided by Mr Shah is for the 2015–2016 financial year when he purchased a motor vehicle for $6,000. It also annualises other costs such as $500 per annum for a television and $2,500 per annum for holidays (including airfares), even though his trip to India in that financial year is the only time Mr Shah has returned to India since arriving in Australia in August 2013, such that those costs do not seem likely to be incurred by Mr Shah each year.
As noted above in the first dot point of paragraph 30, Mr Shah’s registered migration agent submitted, amongst other things, that information technology companies pay the same pay rates globally. The Tribunal does not accept this. Such an approach would make those companies uncompetitive through paying the higher rates of pay required in regulated labour markets in countries where they could pay much lower rates of pay in part because labour markets in those countries are less regulated.
Evidence the student visa is being use to circumvent the intentions of the migration program or to maintain ongoing residence
Mr Shah stated to the Department in his 2016 statement of purpose referred to in the decision of the delegate:
After completing course, I would look for work in my relate field in India.[4]
[4] Department file, folio 14.
However, having now completed that course Mr Shah has not returned home but wishes to undertake a two year Masters course and a three to five year PhD course, which at the earliest would not see Mr Shah return to India until 2023, by which stage he will have been in Australia for approximately nine to 10 years.
The Tribunal accepts that visa applicants can change their mind and their intentions during their study in Australia and still be a genuine applicant for entry and stay in Australia as a student. However, when considering all of Mr Shah’s circumstances, the Tribunal is not convinced this is the situation in Mr Shah’s case.
Mr Shah’s migration agent submitted at the hearing that Mr Shah’s intentions to study a PhD were not realistic and not based in the real world. The Tribunal makes no finding in this regard.
In post-hearing submissions Mr Shah’s migration agent submitted that Mr Shah was nervous and unclear about studying at the PhD level during the hearing. The Tribunal does not accept this submission. Mr Shah’s evidence about “definitely” wanting to study a PhD in Networking was spontaneously given and clearly stated.
The salient point for the Tribunal is to determine according to the evidence available to the Tribunal what Mr Shah’s intention is at the time of the Tribunal’s decision, not how reasonable those intentions are. Mr Shah’s stated intention is to study a Master of Networking and then potentially a PhD.
This seems a normal and reasonable approach to the Tribunal. Mr Shah cannot know whether he will be able to study a PhD until he has received his marks for his Masters. Mr Shah gave evidence to this effect, which the Tribunal accepts.
In the Tribunal’s view Mr Shah has made reasonable academic progress during his time in Australia. Despite failing his Diploma course Mr Shah has managed to complete a three year Bachelor level course. At the time of completion of that course, Mr Shah had been in Australia for just over four years.
However, as will become evident below, the Tribunal found Mr Shah’s evidence about the benefit further study would provide to his career and remuneration prospects back in India to be unconvincing. Mr Shah on his own evidence could return to India now with his Australian degree qualification and would have positive prospects of securing a well-paid position.
Mr Shah’s evidence about wanting to undertake further long term study in Australia was not consistent with his evidence of needing to return to India soon to care for his parents or consistent with his migration agent’s submission that his parents could not continue to support him in Australia for much longer. When the Tribunal discussed this with Mr Shah his explanation was that he could visit his parents.
These circumstances, when considered with the Tribunal’s finding that Mr Shah has considerable economic incentive to remain in Australia, cause the Tribunal significant concern that Mr Shah is not intending to stay in Australia to achieve academic progress but is seeking to use a Student visa to maintain ongoing residence in Australia so that he can continue to earn and potentially save far more in Australia than he could in India.
The Tribunal discussed these concerns in detail with Mr Shah during the hearing and directly asked Mr Shah in several different ways whether his plans for further study were consistent with him being a genuine temporary entrant. Mr Shah’s response was that he is committed to studying a Masters now and would love to do the PhD but was not sure he could do it as it depends on what marks he gets in the Masters.
Mr Shah explained the basis of his interest in a PhD, but did not know the course length or cost. This does not seem unusual to the Tribunal. It seems reasonable to the Tribunal that Mr Shah may undertake more investigation about a PhD course if he progresses satisfactorily through his proposed Masters course. It also seemed to the Tribunal that Mr Shah was open to the possibility that he may not be able to study at the PhD level and may have to return to India after completing his proposed Masters studies.
However, Mr Shah could not convincingly explain to the Tribunal how this further study would benefit him or his career. As is set out in more detail below, when the Tribunal discussed with Mr Shah how his Masters course would benefit him, he spoke of his career and remuneration prospects at a very general level. Similarly, when the Tribunal discussed the benefits of his proposed PhD studies Mr Shah provided only a very general answer about the reputation and ranking of specific Australian universities and referring to the experience of one friend who became a university professor.
The Tribunal has significant cause to doubt that Mr Shah’s intention to study a Masters and PhD reflects his genuine desire to progress academically in Australia. Because Mr Shah could not convincingly articulate, based on credible research, the benefits of those studies to his career or remuneration prospects, particularly when those studies will cost him tens of thousands of Australian dollars a year, and the fact he is earning significant amounts of money in Australia already causes the Tribunal to find that Mr Shah intends to use his Student visa to maintain residency in Australia rather than genuinely to progress academically.
Applicant’s knowledge of living in Australia and their intended course of study and education provider
Mr Shah has been living in Australia for over four and a half years and has been both working and studying during that time. In the Tribunal’s view Mr Shah, after performing poorly academically in his first 20 months in Australia, now clearly understands what it takes to be able to study successfully in Australia, having successfully completed a Bachelor degree.
Whilst Mr Shah could not tell the Tribunal the duration or cost of a PhD he could describe, in very broad terms, the eligibility process. Mr Shah gave evidence that he was not sure he could get the marks to do a PhD but it was something he would “love” to do. This reveals to the Tribunal Mr Shah has some understanding – however realistic or otherwise – of his intended course of study.
The Tribunal finds Mr Shah has an adequate knowledge of living and studying in Australia and this supports his application that he is a genuine student.
Value of the course to the applicant’s future
Is the course consistent with the applicant’s current level of education
As Mr Shah has completed his Bachelor level degree the Tribunal finds that Mr Shah enrolling in a Masters level course represents normal and reasonable academic progression, as would enrolling in a PhD if and when Mr Shah completed his Masters.
The Tribunal finds this consideration supports Mr Shah’s application that he is a genuine applicant for entry and stay in Australia as a student.
Will the course assist the applicant to obtain employment or improve their employment prospects in their home or a third country?
Mr Shah gave evidence that with an Australian Bachelor or Master of Networking qualification he could get a network analyst, system administrator, network security officer or network administrator job in India.
After extensive discussion with Mr Shah, he gave evidence that with a Bachelor or potentially a Masters, he could earn approximately AU$12,000 per annum in India in these sorts of roles.
Mr Shah then told the Tribunal that with a Doctorate he could become a professor, teach Masters students and earn up to AU$36,000 per annum. Mr Shah told the Tribunal this is based on two friends of his with PhDs, one of whom has become a professor and the other who has his own business.
Mr Shah’s evidence seemed to the Tribunal to be speculative and very general. It was not evident that Mr Shah’s evidence in relation to this consideration was based on any significant research of his proposed future courses or research of the jobs or remuneration he could secure with those qualifications. This was of concern to the Tribunal.
The Tribunal specifically shared its concerns in this regard with Mr Shah, particularly in the context of his Masters costing AUD45,000 in fees. Mr Shah was not able to provide the Tribunal with more specific or credible evidence to demonstrate the benefit his proposed further study would provide to his career and remuneration. The Tribunal accepts that completing a Masters will provide some career benefit to Mr Shah. It is of concern to the Tribunal that Mr Shah is intending to spend so much further time and money in Australia when he could not credibly articulate how this would benefit his career and remuneration prospects, particularly when the Tribunal has found Mr Shah could undertake these studies in India at far less cost. .
The Tribunal finds that if Mr Shah obtained a Master of Networking or Doctor of Networking his employment and remuneration prospects are likely to improve. However, in the context of the expense required to study those courses and Mr Shah’s unconvincing evidence about the roles and remuneration he could expect, leads the Tribunal to find that Mr Shah is proposing further long-term study to maintain residency in Australia rather than progress academically and return to India.
Relevance of the course to the applicant’s past or proposed future employment
A Master of Networking and Doctor of Networking would both be relevant to Mr Shah’s proposed future employment in information technology or academia. The Tribunal finds this consideration supports Mr Shah’s application.
Remuneration the applicant could expect to receive in their home country compared to Australia using their qualifications
As noted above, the Tribunal found Mr Shah’s evidence on the levels of remuneration Mr Shah would expect to earn in India to be speculative, lacking in supporting information and not very credible. Mr Shah did not provide any evidence or documentation, such as the monitoring of job ads or checking of online job websites like Seek or an Indian equivalent, to the Tribunal.

100. As noted above, Mr Shah’s evidence was that he is already earning more in Australia than he can expect to earn in India, even if he obtains a PhD.
101. Mr Shah did not provide any evidence about what he could earn in Australia using his proposed qualifications, as he gave evidence that he would return to India to work upon completing those qualifications.
102. The Tribunal finds that the remuneration Mr Shah could expect to earn in India does not demonstrate that those courses hold significant value for his future. Even if Mr Shah were to only complete a Masters and not proceed to a PhD, this would take him a further two years at a cost of at least AUD45,000. If Mr Shah completes a Masters he will have been away from family and friends in India for approximately seven years, when on his own evidence he could commence a career and his earning capacity in India now.
103. In these circumstances, the Tribunal finds it is not convinced about the value of even the Masters course to Mr Shah’s future, such that this consideration does not support Mr Shah’s application to the Tribunal that he intends genuinely to stay in Australia temporarily.
The applicant’s immigration history
104. There is no information before the Tribunal that Mr Shah has ever travelled to other countries in circumstances requiring a visa or has been found to have breached or been refused a visa when travelling to and from Australia. The Tribunal makes no adverse finding against Mr Shah in this regard.
If the applicant is a minor
105. The evidence before the Tribunal is that Mr Shah is not a minor and there are no other applicants who are dependent on Mr Shah’s visa.
Other factors set out in Ministerial Direction No.69
106. There is no significant relevant evidence regarding the following factors indicated by Direction No.69 and the Tribunal makes no findings for or against Mr Shah based on:
·Military service commitments as an incentive not to return to the applicant’s home country;
·Political and civil unrest in applicant’s home country; and
·Whether there are any relationships of concern for Student visa purposes.

Any other relevant matters
107. Mr Shah was invited to raise any other matters with the Tribunal at the end of the hearing. He declined to add anything further to his evidence.
Conclusion
108. In conclusion, the Tribunal finds that Mr Shah is not a genuine applicant for entry and stay as a student in Australia for the reasons above, which in summary are that Mr Shah:
·now proposes to undertake a further at least two and possibly five or more years of study, potentially bringing his stay in Australia to at least seven years and potentially nine to 10 years;

·did not demonstrate a detailed knowledge of those further studies that the Tribunal would expect of a genuine student, particularly in the context of the significant fees he will have to pay and the amount of time he will have to invest to undertake those further studies;
·did not provide the Tribunal with credible evidence about the benefit those further studies would provide to his career or remuneration prospects in India, again particularly in the context of the course fees and time he will have to invest compared to commencing his career and earning capacity in India now;
·is earning more in Australia than he can earn in India, even with his proposed further qualifications, such that he has significant financial incentive (even allowing for a cost of living differential) to remain in Australia for as long as he can; and
·was not convincing in his evidence about his incentive to return home.

109. On the basis of the above, the Tribunal is not satisfied that Mr Shah intends genuinely to stay in Australia temporarily. Accordingly, Mr Shah does not meet cl.500.212(a) of Schedule 2 to the Regulations.
110. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. Mr Shah does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
111. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Ison
Senior Member

[2018] AATA 1367

9 April 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice