Surapu Reddy (Migration)

[2019] AATA 3218

Surapu Reddy (Migration) [2019] AATA 3218 (4 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sarath Reddy Surapu Reddy

CASE NUMBER:  1718669

HOME AFFAIRS REFERENCE(S):          BCC2017/1025411

MEMBERs:Sean Baker (Presiding)

Michael Biviano

DATE:4 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 April 2019 at 9:36am                   Statement made on 04 April 2019 at 9:50am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – multiple courses – lack of academic progress – study in field unrelated to and at lower level than previous studies – credibility of evidence – incentive to remain in Australia – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 15 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Telegu (Indian) and English languages.

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

   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 cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily .

   Genuine applicant for entry and stay as a student (cl.500.212)

7. 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?

8. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

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 applicant is a 29 year old Indian national, who came to Australia on 2 September 2012. He entered Australia after obtaining on 31 August 2012 an initial student visa TU 573 to study a English and Master of Information and Communication Technology. Since their initial arrival the applicant was granted another student visa subclass TU573 to study Master of Business Administration course.

11. In 2011, the applicant prior to entering had Australia, had completed a Bachelor degree in Electronics and Communications at Vinayaka Mission University.

12. Since arriving in Australia, the applicant undertook the following courses:-

    (a)In February 2012, he commenced studying Masters in Information Technology at Latrobe University which he did not complete.

    (b)In 2013, he commenced studying at Austwide College, but the College ceased trading.

    (c)In November 2013, he commenced studying a Masters in Business Administration, at Holmesglen College for which he did not complete because after 2 semesters, he found it too hard and was unable to pass the course requirements.

    (d)In October 2015, he commenced studying at Acumen College at which he completed the following package of courses which were completed in February 2018:-

    (i)  Certificate III in Automotive;

    (ii) Certificate IV in Automotive; and

    (iii) Diploma in Automotive.

13. The applicant gave evidence that he changed his course of study because he had an interest in automotive repairs.

14. The applicant was not enrolled in any course from February 2018 to February 2019.

15. In April 2018, he was married to his wife in India and was in India for a period of approximately 6 weeks between 21 February 2018 to 7 April 2018. 

16. In February 2019, the Applicant enrolled at the Gen Institute to undertake a Diploma of Leadership & Management and which is to commence in March 2019 and he is expected to complete such studies in February 2020.  In March 2019, he enrolled at the Gen Institute to undertake an Advanced Diploma of Leadership & Management, which is anticipated to commence on 5 March 2020 and is expected to be completed in March 2021. Copies of confirmation of enrolment were provided to the Tribunal.

17. The applicant has since 2013, worked as a console operation at a BP Service Station. He reported his income to be $40,000 per annum, which is a significant level of income per annum. It is common knowledge that the level income that the applicant is receiving as a console operator is substantially more than he would be receiving in India, working in a garage or a console operator in India due to Australia’s level of wages.

18. In or about October 2018, the applicant’s wife has made an application for a PR 189 (Skilled – Independent) visa, to permanently stay in Australia and the applicant has been joined as a dependent to that application.

19. The applicant gave evidence that he intends to return to India in 3 years and he intends opening an garage and have 2 or 3 garages, and he requires the Diploma and Advanced Diploma in Leadership and Management to improve his management and business skills to be able to manage staff in this business, which has yet to be established and has no staff.

20. The Tribunal is not satisfied that the applicant has made this application to gain a student visa on a genuine basis and that it considers that the primary objective of the application is to maintain an ongoing residence in Australia and to remain in Australia permanently once the PR 189 visa is granted to his wife.

21. The Tribunal has reached this decision having regard to the Applicant’s circumstances in that he has not completed any higher education courses in the 6 ½ years he has been in Australia and instead he has completed a number of low level courses. His studies do not reveal a progression during his education. He is currently enrolled in lower level Diploma courses at the Gen Institute in Leadership and Management which are for 3 years’ duration.

22. Such further extension in study of a further 3 years would extend the Applicant’s stay to total of 9 ½ years on both bridging visas and temporary visas. The Tribunal considers that in the circumstances such a long stay together with the wife’s pending application for the PR 189 visa, which is permanent, is inconsistent with the stay being on a temporary basis.

23. Further during his 6 ½ years in Australia, there are gaps where he did not study. The Applicant gave evidence that he was not enrolled in a course of study between February 2018 and February 2019. It also appears from his evidence that he was not enrolled from late 2014 to November 2015. During those gaps in study, save for a 6 week period in February 2018, where he returned home to get married, the Applicant continued to remain predominantly in Australia and work, rather than return home during those gaps. Such conduct is consistent with wanting to stay in Australia permanently to work rather than study on a temporary basis.

24. The applicant’s circumstances in his home country were that he had completed both secondary and tertiary education in India. He did not provide any evidence of employment in India, between completing tertiary studies in India and coming to Australia. The Applicant has no assets or property in India. On the other hand, the Applicant has been living in Australia for the last 6 ½ years and he is employed earning $40,000 per annum and his wife is intending to live in Australia permanently. The Tribunal finds that his circumstances in India do not present an incentive to return to India. 

25. The applicant has given evidence that obtaining the Diploma and Advanced Diploma in Leadership & Management course would assist him in opening and managing 2 or 3 garages. He gave evidence that the cost to start up the business would be A$160,000 but he did not give evidence of his expected income from such a venture. Obviously such income would be dependent on achieving profit in the Business and the commercial arrangements reached in the Business. He gave evidence that his parents would sponsor the business and advance the funds, as they had a 100 acre farm and operated a contracting business, inferring they had sufficient assets to help fund the Business. The Tribunal finds that the course of study being undertaken in Leadership and Management, may provide some limited assistance in achieving such objectives, but it is not satisfied that such Leadership & Management courses, based on the applicant’s evidence will assist him in obtaining employment or improving his employment prospects in India.

26. The applicant gave evidence that there are no specific Leadership and Management courses in India. When the Tribunal pressed the applicant on this issue, he changed his position and said that such courses are not available in some areas. He gave evidence that management courses that were available in India included an MBA and Political Leadership, but he did not have any interest in studying politics. The Tribunal finds the applicant’s evidence on there being no leadership and management courses available in India as not being credible.

27. The applicant has ties both in Australia and home in India. The applicant has his parents, wife and brother back living in India. But he has no assets or property in India. The applicant made 9 trips home to India over the time he was in Australia usually for 2 to 4 week periods, and on 2 occasions he went home for a period of 6 weeks.  Whilst considering that these factors may provide the applicant with incentive to return home, it must be considered in the context of his ties to Australia and the intention of his wife to come to live in Australia.

28. The applicant gave evidence that he is living in Australia with a friend and that he has distant family members living in Melbourne, Brisbane and Sydney. However the applicant’s wife has made a PR 189 visa application to remain permanently in Australia, and the applicant claims that he is a dependent on that visa application which is consistent with the applicant seeking to remain permanently, and not as a student. The fact that his wife is intending to live permanently in Australia, would provide the applicant with incentive to remain in Australia rather than to return home.

29. It is common knowledge that there is an economic disparity between Australia and India and that the economic conditions and level of wages in Australia are more favourable in Australia than in India for comparable positions. The applicant is currently in employment in Australia  and his financial circumstances are stronger in Australia than in India, which would provide a significant incentive for the applicant not to return home.

30. The applicant did not have any concerns about returning to India and no concerns about military service commitments and political and civil unrest in his home country.

31. There is nothing before the Tribunal to indicate that the applicant has experienced any other visa refusals.

32. However the Tribunal is not satisfied on the evidence that the proposed low level courses of study he is intending to study are likely to substantially increase his employment prospects and remuneration in his own country.

33. The Tribunal considers that the above circumstances are consistent with the applicant’s motivations to remain in Australia on a permanent basis and not on a temporary basis.

34. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

35. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

36. 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

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

    Sean Baker
    Member

    
    

    Michael Biviano
    Member

    
    

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    c.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    d.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    e.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    f.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    g.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including: i. if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    i.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    ii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.