Varsha Naganath Jogad (Migration)

[2019] AATA 6540

Varsha Naganath Jogad (Migration) [2019] AATA 6540 (30 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms  Varsha Naganath Jogad

CASE NUMBER:  1820620

DIBP REFERENCE(S):  BCC2018/1247372

MEMBER:Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         30 October 2019 at 3:34 pm (VIC time)

DATE OF WRITTEN RECORD:                20 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 20 November 2019 at 10:48am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Diploma of Leadership and Management – not genuine temporary student – multiple vocational qualifications completed – multiple student visas held – ten year stay in Australia – value of courses questioned – multiple course enrolments cancelled – assets and husband appeared not significant incentives to return to home country – using student visa program to maintain ongoing residence in Australia – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958 (Cth) ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 June 2018 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 30 October 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral statement of the decision and reasons for that decision in case 1820620 in relation to the application for review brought by Ms Varsha Naganath Jogad, the applicant.  The applicant is a citizen of India.  She seeks review of a decision made by a delegate of the Minister for Home Affairs on 27 June 2018 to refuse to grant her a student visa. 

4. The applicant applied for the visa on 15 March 2018. The specific type of visa she applied for is classified under the Migration Regulations 1994 (‘the Regulations’) as being a Student (Temporary) (Class TU) Subclass 500 visa. The visas are issued under the general power to issue visas, conferred on the Minister or his delegates by the operation of section 65 Migration Act. If granted, the visa permits a non-Australian citizen to enter and remain in Australia to study full-time on a temporary basis.

5. In this case, there is only one applicant. She seeks a student visa so she can reside in Australia while undertaking a course of study. For the visa to be granted, the applicant must meet the primary criteria set out in part 500 of schedule 2 of the Regulations. A student was refused in this case because the delegate found that the applicant did not satisfy the primary criteria contained in clause 500.212 of the schedule 2 of the Regulations. The delegate was not satisfied that she was a genuine applicant for entry and stay as a student. The delegate’s reasons are set on in a decision record, a copy of which was provided to the tribunal by the applicant when she lodged her review application on 17 July 2018.

6. The tribunal convened a hearing to consider the merits of the application on 30 October 2019.  The applicant appeared at the hearing to give evidence and present arguments in person.  The applicant was assisted in relation to her review application at the hearing by her registered migration agent, Mr Wilson.

7. In the course of the hearing, in accordance with the procedure set out by section 359A of the Migration Act, the tribunal gave particulars of information that was in the tribunal file, which the tribunal considered could be a reason, or part of the reasons,for affirming the decision under review. That information was a PRISMS record check. PRISMS being the international student database, which is run by the Department of Education and Training relating to all international students.

8. The information that was obtained by the tribunal relates to the applicant’s enrolment history.  And in the course of the hearing, the tribunal provided a copy of that two page document, being particulars of the information that the tribunal had.  And it provides a chronological history of her enrolments and cancellations of enrolments.  The tribunal pointed out to her that there are a sufficient number of cancellations, in particular cancellations of a Diploma of Leadership and Management registered course enrolments in May 2019 and October 2018, which gave the tribunal cause to consider that she wasn’t being a diligent student and maintaining her enrolment, because the reason that is expressed in the reference report for those cancellations is non-payment of fees.

9. There is a lot of cancellations, but those were of particular concern to the tribunal because they go back a while, and they appear to be possibly justifiable cancellations based on the reasons that were entered for them. In any event, the tribunal went through all of them, gave the applicant a copy and, in accordance with section 359AA, made sure that the applicant understood the information that is relevant to the review, and also the consequences of the information being relied on in that it could lead the tribunal to affirming the decision that is under review.

10. The tribunal then orally invited the applicant to comment on or respond to the information.  But also before seeking that comment, or response, enquired as to whether or not the applicant sought additional time to comment on or respond to the information and she did require such time and so the tribunal adjourned temporarily for five minutes to allow her to consider the information.  And so the hearing resumed after five minutes, and she commented on the information.  In particular, in relation to the most enrolment cancellations to which I referred, she explained there appears to be a miscommunication with the course provider as to her return to India to see her mother and administrative staff cancelled when they should not have.  Ultimately, I accept that explanation. Nothing turned on those cancellations in relation to this decision.

11. So, clauses 500.211 to 500.218 of Sch 2 of the Regulations contain the primary criteria. Only clause 500.211 and 212 are relevant today. Clause 500.211 is the enrolment criterion. I must find that she is currently enrolled in a registered course of study before moving on to consider 500.212. I make that finding. That is, she is currently enrolled in a registered course of study. As produced in evidence, a confirmation of enrolment document that had reference code AB2696455 shows that the applicant is enrolled is a Diploma of Leadership and Management. The course has a start date of 24 June 2019 and an end date of 22 December 2019. She has also provided an up to date academic record from the course provider, being DELA International College Pty Ltd dated 30 October 2019. That indicates that she is making satisfactory progress, and she is on course to complete this course on 22 December 2019.

12. Although I made the finding that she does meet the criterion contained in clause 500.211, the critical issue in this case is clause 500.212 – the genuine applicant criterion. That states for a visa application to be successful, the applicant must demonstrate that she is a genuine applicant for entry and stay as a student.

13. The regulations direct consideration to two constituent elements of genuine student visa applications. First, the applicant must be one who intends genuinely to stay in Australia temporarily. That is to be found in clause 500.212(a). The applicant must demonstrate an intention on the evidence to stay in Australia for a limited time only, not permanently. That intention must be unqualified. This requirement reflects the temporary nature of any student. Secondly, as is found in clause 500.212(b), it must be demonstrated that the applicant is one who intended to comply with any conditions to which the visa may be subject. There are similar conditions attaching to all student visas the most important of which require a student visa holder to remain involved in a registered course of study, to make satisfactory progress, attend classes, complete course work, and ultimately pass everything and get a qualification that they say they are going to get. They must also not downgrade to a course that sits at a lower level on the Australian Qualifications Frameworks standard.

14. The regulations also say to the tribunal that it must consider anything else that is relevant. That is found in clause 500.212(c). In terms of this clause 500.212(b), I have no concerns. And I am satisfied that she will probably meet that particular criterion. That is to say, based on a history of enrolment and attendance, although there have been a few hiccups and cancellations, she has a history of studying in Australia to demonstrate to me that she likely, and she probably does have, an intention to comply with any conditions of a visa, were one to be issued to her.

15. However, there is a concern that relates to clause 500.212(a). That is commonly referred to as the genuine temporary entrant criterion. So concerned is the government about this particular criterion that it has issued a direction, a Ministerial direction, which obliges first instance decisions makers, as well as the tribunal now, to consider a range of factors before it comes to a conclusion as to whether that criterion is met. That direction is known Direction 69, and it sets out a number of factors which bear upon the issue of whether or not somebody who claims to be a genuine temporary entrant. So, I need to have consideration to those factors as well.

16. So those are the general principles as summarised.

17. I now turn to consider the application on those principles to the applicant’s case at hand.  First of all, I will turn my consideration to the applicant’s declared intentions.  Declared intentions, of course, are a starting point, but they are by no means determinative because it is in every applicant’s interest to declare that they intend to comply with the requirements of a visa, and also to declare an intention to remain here temporarily.  And so much is the case in relation to the evidence given by the applicant.

18. In oral evidence she explained that the reasons for undertaking the proposed course, being the Diploma of Leadership and Management.  Primarily she states that the qualification can help her when she returns to India, to partake in her husband’s business who is involved in the real estate industry.  In that regard, she said that she married her husband in 2011 in India.  It is a marriage of love and not an arranged marriage, the latter being customary in India.  She said that following completion of this course in December this year, she will return to India.  The tribunal asked her if it were her intention to remain here permanently, and she emphatically said no.  So on the face of her expressed statement, she has declared an unqualified intention to remain in Australia temporarily.

19. However, the critical issue of that declared intention requires consideration of more objective factors, which may either support or undermine the applicant’s claim that it is indeed her intention.  So, I come to consider the objective considerations, to ascertain whether or not it is indeed her intention.  First of all, I turn to consider whether there are objectively good reasons for her wanting to study this particular course - that she has a genuine motive, a reasonable motive, to actually study this Diploma of Leadership and Management.  Obviously she says that she does, because it will help her with her husband’s employment with resource management, human resource management, and things of a similar nature.  She says that she can help him with recruitment by drawing upon the skills that this particular course teaches her.

20. Unfortunately, beyond this, the explanation for wanting to study this particular course, a Diploma of Leadership and Management, is somewhat vague.  There is also the history of the applicant’s studies, and those need to be set out in this decision.  Because she originally came here on a student visa in 2010.  She is still here after almost 10 years. During that time she has completed a range of vocational qualifications.  That is a Certificate III, IV, Diplomas, Advanced Diplomas.  Those include, in chronological order, a Certificate III in Commercial Cookery, a Diploma of Hospitality, an Advanced Diploma of Hospitality, and Certificate IV of Frontline Management, a Diploma of Management, an advanced Diploma of Management, a Diploma of Marketing, an advanced Diploma of Marketing.

21. Those last two are courses that she started she did not complete..  And ultimately we come to the Diploma of Management.  There are, as we have seen, a range of qualifications, at tje a Diploma or Advanced Diploma level.  But notably, there is the Diploma of Management and an Advanced Diploma of Management which she undertook in 2014 and 2015.  Although the current course that she proposes is a Diploma of Leadership and Management, there seems to be a considerable degree of overlap, just by referring to the actual titles of these courses.  I am not satisfied, based on the evidence given by the applicant as to what this particular proposed course will do for her, whether it will be of significant value to her once she returns of India. Upon enquiry as to why she just could not undertake the proposed study in her home country, again, she answered that question, not providing a great level of detail as to why she cannot undertake a similar course back in her home country.  She could also not provide any objective evidence which might demonstrate what kind of remuneration she could obtain, having attained this Diploma of Leadership and Management.  For that reason, it is difficult, and also in light of the number of vocational qualifications that she has already obtained (two in particular of which relate to management qualifications) for the tribunal to see what significant value, or what substantive value it will add to her previous qualifications.

22. The tribunal accepts that she does have an intention to return to her home country.  And on one view, it may be taken that to be that she has quite a significant incentive to return to her home country upon completion of this course.  First of all, is the issue of family.  The reality is, and I accept this evidence, she does not have anyone here in her family, apart from obviously her friends.  She has referred to her friends, the best friend that she is living with presently in Australia.  But her husband, whom she married in 2011, is still in India.  In the course of evidence, the tribunal was informed that after the marriage, which was a marriage of love, more than one application was made for the husband to come to Australia on a visa.  However, those applications were without success.  And as a consequence, the only opportunity that the applicant has had actually had to see her husband, since they married in 2011, is upon her return to India, which had happened on occasions she has been here.

23. So on the one hand, the tribunal might infer that she has a strong incentive to return to her husband for this reason.  On the other hand, she has still made the decision not to leave.  So, in that sense, the incentive cannot be that strong that she has actually proverbially ‘packed her bags’  and actually returned to live and start her life with her husband in India.  They have effectively been living apart since they have been married, for approximately eight years.  The tribunal finds that somewhat odd and unusual.  But certainly the fact that she has chosen to remain apart from her husband, who she said that she loves and is close to, for such a long period of time, may actually indicate the contrary.  That is, the relationship is not so strong that it operates as a sufficiently significant incentive to pull her back to her home country.

24. The tribunal accepts that she has assets, being property, land and farms, and also assets owned by her husband.  But, again, for reasons already articulated, those do not seem to have been operating as a sufficient or significant incentive to draw her back home.

25. The tribunal has given consideration to the ties she has with Australia.  The tribunal accepts that she has no family here.  She just has friends.  But also, as noted in the course of the hearing, the applicant has effectively resided here and made Australia her home, for the last several years.  She has been here studying since early 2010.  As each day passes, her ties to Australia become stronger.  She has remained here for 10 years, effectively residing here.  And so, she has become accustomed to the culture, and, indeed, Australia is ranked number 3 by the United Nations Human Development Index, whereas India is ranked 130th. By that objective measure, it is understandable why somebody in the Applicant’s position may wish to remain here on a longer term basis, for reasons other than to study.

26. The tribunal notes that there are no military service commitments or civil unrest issues in India, which might be operating to deter her from returning to India.  There do not appear to be any adverse previous visa applications, either in Australia or other countries.  The tribunal has given consideration to the value of the proposed course, relative to her current level of education.  As previously indicated, she has already obtained a number of previous qualifications at Certificate III, Diploma, Certificate IV and Advanced Diploma level. All of those are set AQF levels 3 to 6, and this is effectively another one which is AQF level 5 and, at least, partially overlapping the subject matter of something she has previously completed.  She has enough of these.  So, ordinarily, if somebody is to be a student for such a long period of time, they progress, they go up the ladder.  They do not remain horizontal, it would seem, and this is what she appears to be doing, hopping from one vocational qualification to the next.  And just by that pattern alone, it would suggest that she is attempting to maintain ongoing residence in Australia.

27. The fact that this is her fifth or sixth student visa application is also of a concern.  And that particular concern was drawn to her attention in the course of the hearing. Each time she has applied for a student visa, she has declared an intention that following completion of her proposed courses, she will depart Australia and put her completed courses to good use back in her home country.  She has done this many times over.  She has now been here for 10 years and comes to the tribunal again, declaring an intention to remain here temporarily and upon completion of this course she will depart.  Based on her pattern of behaviour in the past, the tribunal has inferred that it is more likely than not that in December 2019, if she is granted this visa, she will apply for another one and seek to stay longer.  That is borne out by the objective evidence.

28. I therefore do not accept that it is indeed her intention to depart Australia, as she has declared, upon completion of this course.  It is the tribunal’s view that it is more likely that the applicant has attempted to use the student visa program for the purposes of maintaining ongoing residence.  That is not the purpose for the student visa program.  By any objective assessment, she has been here far too long, and it really has come to the point where she is not intending to remain here temporarily, as it has been almost 10 years.  The tribunal has taken into account that she has complied with conditions of all previous visas issues.  No previous visas appear to have been cancelled, so that is to her credit.

29. In all of the circumstances, the tribunal is not satisfied that she meets the criterion contained in clause 500.212.

1. The time now is 3.34 pm.  In case number 1820620, the tribunal affirms the decision not to grant the student visa. 

   DECISION

2. The Tribunal affirms the decision under review.

   Dr Jason Harkess
   Member