Theendankara Raphel (Migration)

Theendankara Raphel (Migration) [2018] AATA 2943 (25 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Reju Theendankara Raphel
CASE NUMBER:  1705562
HOME AFFAIRS REFERENCE(S):         BCC2016/3560945
MEMBER:Warren Stooke AM
DATE:25 June 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 25 June 2018 at 2:02pm

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa –
– Genuine applicant for entry and stay as a student – Number of unrelated courses of study – Didn’t study whist holding a Bridging visa – Maintaining ongoing residency in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218
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 and Border Protection on 6 March 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 26 October 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.
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 applicant after almost 9 years in Australia had undertaken a multitude of disparate course in the VET sector without progression academically, that the courses were of low cost and short duration and that there was no evidence to demonstrate how the proposed courses would benefit the applicant’s future remuneration or business and that the applicant had only returned to his home country once in almost 9 years for a period for a period of 59 days.
The applicant appeared before the Tribunal on 13 June 2018 to give evidence and present arguments. The Tribunal attempted to receive oral evidence from Ms Jessica Boyden and Mr Sreejith Krishnan Nair by telephone, however neither proposed witness responded to the call.
The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.
At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate’s decision of 6 March 2017, a copy of which was provided to the Tribunal by the applicant, which he stated he understood.
The applicant provided the Tribunal with an explanation, as to his understanding for the refusal of the visa application by the delegate and acknowledged that the reason was that the delegate did not accept that the applicant met the criteria required for the grant of a visa. The applicant stated that the reason for refusal of the visa by the delegate was because of the number of unrelated courses of study and the country relationship.
The applicant was granted a Student visa (TU 572) offshore and arrived in Australia on 30 November 2008.
The applicant has a current certificate of enrolment to study a Diploma of Marketing and Communications, which is due to commence on 11 June 2018 and complete on 9 June 2019. The Tribunal notes that fees with the International College of Melbourne Pty Ltd have been paid until 11 August 2018.
The applicant is a 34 year old from India, who has been in Australia for almost 9 years and has undertaken numerous courses, including Printing and Graphic Arts; Multimedia; Horticulture; Massage Therapy; Remedial Massage; Business; Retail and Marketing, with an intention to now undertake a Marketing and Communications course. These courses have been for a short duration and generally at low cost.
The applicant stated that the purpose of the courses was to support a future initiative to open a herbal health business in India that would cater for Western wellness. A business outline and financials were provided to the Tribunal to support the proposed plan. He stated that his family will support the business with a contribution of between $15,000 to $20,000.
The applicant completed his last course in September 2016 and has not participated in any study since this time. He stated that he was not sure as to what to study.
The applicant stated that he had completed all the courses he required to commence his business, except for marketing. The Tribunal notes that the applicant gave evidence that he had already completed modules in Marketing in a previous course.
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 the applicant is 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, ‘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.
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 stated that the purpose of the courses was to support a future initiative to open a herbal health business in India that would cater for Western wellness. A business outline and financials were provided to the Tribunal to support the proposed plan.
The applicant completed his last course in September 2016 and has not participated in any study since this time. He stated that he was not sure as to what to study and had not taken advice about the future and was concerned about the expense. The applicant stated that he has not undertaken any study, whilst on the current Bridging visa and was undecided as to whether he should study with a Bridging Visa, but realised he needed a valid Certificate of Enrolment and decided to get one, which he allegedly had previously been confused about requiring.
The applicant stated that he had completed all the courses he required to commence his business except for marketing. He expressed the view that most of his clients will be Western. The Tribunal notes that the applicant gave evidence that he had already completed modules in Marketing in a previous course.
The applicant stated he would return to India when he finished his Marketing course.
The applicant gave evidence that he had applied for a RSMS 187 visa for Direct Entry following a decision to take a break from study and had moved to Henty NSW (near Wagga Wagga), where he was engaged as a shop assistant in a Shell Service Station. He stated the employer offered to sponsor him for a Direct Entry visa with a permanent visa status opportunity. The applicant advised the Tribunal that he had made an application but the application was refused.
The delegate noted in the decision that the applicant had been onshore for 2872 days and had left Australia for a period of only 59 days. The applicant confirmed that he had not left Australia in the period since the delegate’s decision. He said that he was saving money for his business and kept in touch with his parents via Skype. The applicant stated that he last visited India in 2013.
The applicant provided evidence that he is supporting himself by working 20 hours per week in the Shell Service Station in Henty, where he has worked for 1 year and 2 months and is paid $26.00 per hour.
The applicant gave evidence that he does not have any relatives in Australia and that his parents reside in India. The applicant’s father a is retired carpenter and his mother is a housewife. The applicant’s sister is married and none of the family have visited Australia.
The applicant has a business plan to set up a health farm in India, as he has a pre-existing background in Natural Health. He stated that the area he comes from has natural beauty and is ideal for his proposed Western wellness business.
The applicant confirmed to the Tribunal that there was no reason that would preclude him from returning to India. He also said that there were no political issues and that he really wanted to go back. He stated – “No problem at all”.
The applicant gave evidence that it was not his motivation to stay in Australia permanently and that his reason for applying for a Direct Entry 187 RSMS visa was because his employer gave him the opportunity.
The Tribunal has carefully considered the applicant’s evidence, home circumstances, courses of study, visa application history and Direction 69 criteria and is not satisfied that the applicant intends to genuinely to stay in Australia temporarily for the purposes of study for the following reasons:
a.The applicant has been in Australia for almost 9 years, ostensibly for the purposes of study, however the applicant has not progressed academically in that period of time from the VET sector, where he has chosen to study a disjointed array of subjects to support a Health farm business plan in India. The Tribunal is not satisfied that the applicant requires additional studies in Marketing given that he has undertaken marketing modules in previous studies. The Tribunal is also concerned that the short duration and low cost of courses are for the purposes of maintaining residency and are not for the purposes of genuine academic progression. The applicant’s decision to take a break from study, supports the concerns of the Tribunal’s;
b.The evidence of the applicant is that he is using the period of the current Bridging visa to accumulate money to support a future business. In this regard, the applicant has not undertaken any study since September 2016 and has been working during this period on a Bridging visa. The study of a marketing course that is now being proposed could have been completed in this time, if the applicant was genuinely motivated to return to his home country to set up his business. The visa contained permission to study, which the applicant did not avail himself of;
c.The applicant has not maintained close ties to his home country and has only returned for a period of 59 days in almost nine years and has not returned since 2013. This is not the expected behaviour of a genuine temporary applicant for the purposes of study. The applicant confirmed that there are no reasons, including political conditions that would preclude his return to his home country;
d.The applicant’s actions to secure Direct Entry through the RSMS 187 visa stream demonstrates that his motivation is to secure permanent residency, as opposed to continuing studies. This application failed following a decision of the DIBP. This attempt to gain direct entry and residency, contradicts the stated purpose of the applicant’s temporary residency, which was to gain qualifications to set up his own Health farm business in India.
The weight the Tribunal has given to the applicant’s responses concerning ties to his homeland do not outweigh the cumulative concerns it has in relation to whether the applicant is essentially using the Student visa program to maintain his residency in Australia. And it is doubtful that further studies in the absence of concrete evidence of progression academically will provide improvement in his employment options in his home country. The relevance of the broad spread of courses studied does not satisfy the Tribunal concerning the correlation to any future business or career aspiration, as grounds for continued study.
Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student because the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
Overall, 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?
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.
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).
Whilst there is no evidence to suggest the applicant has breached visa conditions, it is noted that the applicant has not made academic progression since commencing studies in Australia and the Tribunal has genuine concern, given the almost 9 years of past study with academic progression, by the applicant, the Tribunal is of the view that the applicant is not genuinely motivated to return to India. As such, the Tribunal is concerned that the applicant may not comply with visa conditions in the future.
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).
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Warren Stooke AM
Member

[2018] AATA 2943

25 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Intention

Procedural Fairness