Talla (Migration)

[2018] AATA 2962

Talla (Migration) [2018] AATA 2962 (3 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Naveen Reddy Talla

CASE NUMBER:  1618634

HOME AFFAIRS REFERENCE(S):         BCC2016/2883073

MEMBER:Stephen Conwell

DATE:3 July 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 03 July 2018 at 2:53pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 – Not a genuine temporary entrant – Arrived on higher education visa – Ceased enrolment in various higher education courses – Using Student visa program as a means to maintain ongoing residence – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359AA

Migration Regulations 1994, 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 20 October 2016 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 30 August 2016. 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 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 applicant appeared before the Tribunal on 20 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telegu (South Indian) and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

7. Where used in this decision:

   a.The applicant refers to the first-named applicant;

   b.COE refers to Confirmation of Enrolment;

   c.VET refers to Vocational Education and Training;

   d.The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection); 

   e.‘Direction 69’ or ‘the Direction’ refer 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 a genuine temporary entrant under the requirements of cl.500.212 of the Regulations.

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

10. 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?

11. 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.

12. 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.

    Evidence

13. The applicant provided  the following documents to the Tribunal prior to or at the time of the Hearing:

    ·       a current COE for his enrolment in Diploma of Business for the period 12 March 2018 to 10 March 2019;

    ·       GTE questionnaire completed prior to the commencement of the Hearing.

    Background

14. At Hearing, the applicant confirmed the following:

    ·       he first came to Australia on a 573 Student visa on 22 July 2014;

    ·       he came to Australia after acquiring a Bachelor’s of Technology degree in India.

    s.359AA

15. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant information from the Provider Registration and International Student Management System known as PRISMS. The Tribunal explained:

    ·       that this information is relevant to the review because, when considered alongside all the other information before the Tribunal it could have reason to believe that the applicant was seeking to circumvent the ordinary migration program by using the Student visa program as a means to maintain ongoing residence in Australia;

    ·       that if it relied on this information it may lead it to believe that he did not intend to stay in Australia temporarily, and did not meet cl.572.223(1)(a). If the Tribunal finds this to be the case, it would be the reason or a part of the reason for affirming the decision that is under review.

16. The applicant was informed that he could comment or otherwise respond to the information or that he may seek additional time to comment or respond to the information.

17. The applicant confirmed that he understood the relevance of this information to the process. He did not elect to seek additional time and agreed to discuss the PRISMS information during the course of the Hearing.

    Study History

18. According to the delegate’s decision and the applicant’s PRISMS record the applicant has enrolled in a a number of courses since his arrival in Australia in 2014, none of which have been completed:

    a.Master of Science (Network Systems) (cancelled June 2015 – non-commencement of studies);

    b.Master of Technology (Networking software Engineering) (cancelled July 2015 – non-payment of fees);

    c.Master of Business Administration (MBA) (cancelled November 2015 – non-payment of fees);

    d.Master of Professional Accounting (cancelled September 2016 – non-commencement of studies);

    e.Diploma of Business (current enrolment from 12 March 2018 to 10 March 2019).

19. At Hearing the applicant’s submitted in oral evidence that:

    a.his Master of Science was cancelled due to non-payment of fees which was the result of his father losing his job, although he (his father) was subsequently reinstated;

    b.he did not discuss his predicament with the college as he was not aware that he had the opportunity or ability to do so;

    c.for the same reason he was unable to pay for his MBA leading again to its cancellation;

    d.his Master of Professional Accounting was cancelled for non-commencement of studies which was as a result of his stress;

    e.consequently, despite his efforts to obtain enrolment,  he has not studied for some 2 and a half years - more than half of the four years he has been in Australia;

    f.despite his lengthy study gap he has worked mainly on a casual part-time capacity and he relies on financial help from his family in India.  His most recent employment was working part-time for an office cleaning company;

    g.his immediate family (his parents and elder brother) all live in India; he has no immediate family or girlfriend or partner here in Australia, although he does have some relatives in Melbourne;

    h.he acknowledges that his efforts at studying have been unsuccessful and he hopes to attain at least a diploma in the VET sector before returning to India;

20. The applicant was refused a student visa in 2016 because the delegate was not satisfied the he was a genuine applicant for entry and stay as a student.  Significant factors detrimental to the applicant were detailed in the delegate’s decision and included that the applicant:

    ·had breached condition 8516, which requires that he continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.  Relevantly, in this matter, that the applicant maintain enrolment in a higher education sector course.  In addition, the applicant had substantial study gaps that were not satisfactorily explained or justified to the delegate. 

    ·had entered Australia holding a subclass 573 visa for study in the higher education sector, but had cancelled every one of his enrolments at that level.

21. The applicant could not provide evidence of his father’s loss of employment nor was there evidence of his discussing this family crisis with the college.  In the absence of corroborating evidence the Tribunal gives little weight to these statements.

22. At Hearing the applicant confirmed that he was not enrolled in study until a day before the Hearing, when he enrolled in a Diploma of Business in the VET sector.  As noted above, he was in breach of condition 8516 that was attached to the 573 visa.  The applicant did not notify the Department of this significant change to his circumstances and claimed poor advice and ignorance, which was not accepted as a reasonable or satisfactory explanation by the delegate.

23. Overall the Tribunal finds the applicant’s study history in Australia to be unimpressive. Furthermore, he was for a significant time not compliant with condition 8516 on his initial 573 visa, which required that he continue study at the higher education level - and “…continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa”: condition 8516 of Schedule 2 to the Regulations.

24. In considering his study history, the Tribunal finds it probable that the applicant’s current enrolment, coming a day before the Hearing, was motivated by migration and visa considerations and not because of any intention to progress academically.

25. The applicant has submitted the business diploma he is currently enrolled is very important to him and he needs to finish it so he can consider his time in Australia to be a success, as well as to improve his career prospects in his home country.  However the applicant was already a university graduate before coming to Australia; having cancelled every one of his enrolments in the higher education sector, the Tribunal has difficulty accepting that a qualification from the VET sector would be a significant factor in his future career prospects. 

26. Having considered all relevant facts and matters, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student. .  The Tribunal considers that he has not made satisfactory progress in his study.  The applicant could by now have completed such study as would have equipped him to return to his home country to meet his stated career goal.  He has not, in the Tribunal’s view, applied himself in a manner commensurate with that of a genuine temporary entrant who is primarily focused on succeeding in his studies and returning to his home country to put his qualifications to good use.

27. Whilst the Tribunal accepts that the applicant’s has family lives in India, he has not demonstrated, to the Tribunal’s satisfaction, that the ties he has to his home country are stronger than his desire to live and work in Australia.

28. The applicant has not satisfied the Tribunal that:

    a.he has stronger economic ties to his home country than he does to Australia;

    b.the course he claims to be currently studying will enhance his career prospects in his home country and what those career prospects might be;

    c.by being allowed to complete the diploma course his remuneration prospects will be greatly enhanced as between what he may expect to earn in Australia and what he may expect to earn in India;

29. 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.

30. 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.

31. 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).

    Does the applicant intend to comply with visa conditions?

32. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

33. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents' education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

34. The delegate made a finding that the applicant had been in breach of condition 8516 attached to his visa and hence did not comply with a relevant condition that “the holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires for the grant of a visa”.  The delegate concluded that she was not satisfied that the applicant intended to comply with the conditions attaching to a Student visa when granted.

35. In the review application condition 8516 was attached to the visa.

36. The Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant's record of compliance with any condition of any visa they previously held, and the applicant's stated intention to comply with any conditions to which the visa may be subject.

37. There is no evidence before the Tribunal that the applicant intends to comply with conditions attached to his visa. The applicant arrived in Australia in July 2014. In the four years he has been here, more than half of that time the applicant has been in breach of condition 8516.

38. The applicant’s only explanation with respect to his breach of condition 8516 is that he couldn’t obtain enrolment with Holmes Institute once his visa was refused and he was issued a Bridging visa. The Tribunal does not find this to be a satisfactory or complete explanation. The applicant offered no evidence in support of his explanation. Indeed it appears to conflict with his study history as contained in his PRISMS record, which records that his Master of Professional Accounting enrolment was cancelled on 14 September 2016 approximately a month before the delegate’s decision to refuse his visa.

39. On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl. 500.212 (b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

40. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

41. The Tribunal has considered the documentary evidence in the Department and Tribunal files, together with the oral evidence given at the hearing.

42. The applicant arrived in Australia in July 2014 to study in the higher education sector. In the 4 years he has been here he has cancelled each of his enrolments in that sector, resulting in a study gap of some two and a half years. He did not re-enrol in studies until the day before the Tribunal Hearing, and his enrolment was in the VET sector. 

43. There is no evidence before the Tribunal of any other relevant matter which persuades it that the applicant is a genuine applicant for entry and stay as a student.

    Conclusion on cl.500.212

44. 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.

45. 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

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

    Stephen Conwell
    Member