Vazrala (Migration)

[2021] AATA 5298

Vazrala (Migration) [2021] AATA 5298 (16 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sravan Reddy Vazrala

CASE NUMBER:  2107780

HOME AFFAIRS REFERENCE(S):          BCC2018/5963878

MEMBER:Margaret Forrest

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 December 2021 at 2:10 am (QLD time)

DATE OF WRITTEN RECORD:                29 December 2021

PLACE OF DECISION:  Brisbane

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

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – Federal Circuit Court remittal – genuine student – genuine temporary entrant – diploma level courses in unrelated fields – limited academic progress – family bereavement – value of the course to future career – maintaining ongoing residence in Australia – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 May 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 16 December 2021 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. The applicant applied for the visa on 4 January 2019.  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.

4. 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 because the delegate was not satisfied that the applicant was a genuine temporary entrant.

5. The applicant appeared before the Tribunal previously and the decision of the delegate was affirmed on 13 October 2020.  The applicant sought a review of the decision in the Federal Circuit of Australia and the matter was remitted to the Tribunal by consent on 4 June 2021 to reconsider the applicant according to law.

6. The applicant appeared before the Tribunal by telephone on 16 December 2021 to give evidence and present arguments. 

7. The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone having regard to the nature of this matter and the individual circumstances of the applicant.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. In the week prior to the Tribunal hearing, the Tribunal sent the applicant a copy of his records from the Provider Registration Information Student Management System known as PRISMS.  The Tribunal indicated that the Member may refer to the applicant’s PRISMS record during the hearing.  On the basis that the applicant’s PRISMS record contained information that is consistent with information already provided to the Tribunal by the applicant, the Tribunal did not put the applicant’s PRISMS record to him during the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 temporary entrant.

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

11. 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?

12. 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, which is attached to this decision, 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.

13. 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.

14. The applicant confirmed that he first arrived in Australia on 6 March 2014 which is over seven and a half years ago. 

15. The applicant arrived in Australia on a student visa that was valid from January 2014 to September 2016.  When the applicant arrived in Australia he was proposing to study and English and a Master of Engineering.  The applicant was granted a further student visa and the applicant was subsequently granted a third student visa that was valid between 20 March 2018 and 4 January 2019.  The applicant submitted his current student visa application on 4 January 2019.  At the time the applicant was proposing to study a Graduate Diploma of Engineering.

16. Prior to coming to Australia, the applicant completed a Bachelor of Technology in Civil Engineering in India.  The applicant said he did not work in India before coming to Australia. 

17. The applicant said that since he arrived in Australia, he has been enrolled in the following courses:

    ·the applicant said he was initially enrolled in an English course and a Master of Engineering but they were scheduled to commence before he arrived in Australia on 6 March 2014 and so his enrolment in these courses was cancelled.  The Tribunal accepts this evidence and does not draw any adverse inference from the cancellation of his enrolment in those two courses;

    ·the applicant was then enrolled in an Academic English course which he completed;

    ·the applicant was then enrolled in a Master of Engineering and he had his completion date for that course extended twice; once to 31 December 2017 and once to 31 December 2018.  The applicant was originally scheduled to conclude that course on 11 July 2016.  The applicant ultimately did not complete that course;

    ·the applicant was enrolled in a Graduate Diploma of Engineering when he applied for his current student visa (on 4 January 2019) but he did not complete that course.  The applicant’s visa was refused by the Department on 3 May 2019;

    ·the applicant then enrolled in a Diploma of Building and Construction and he did not complete that course.  Despite a contrary finding by the AAT member who originally heard this matter, the applicant was enrolled in the Diploma of Building and Construction when his matter was first before the Tribunal.  The AAT first refused to grant the applicant a student visa on 13 October 2020;

    ·the applicant was then enrolled in an Advanced Diploma of Leadership and Management which commenced in May 2021 and is scheduled to conclude in November 2022.  The applicant is currently enrolled in this course and the Tribunal accepts this.

18. The applicant said that since arriving in Australia, he worked as a casual customer service attendant at a petrol station between June 2014 and August 2018.  The applicant said he earned between $100 and $200 per week in this role.  The applicant said he stopped working in September 2018 to focus on his studies.  The applicant said he is not presently working in Australia and since September 2018 his parents have been supporting him financially.

19. The Tribunal asked the applicant about the circumstances in his home country.  The Tribunal asked the applicant why he could not complete his current course, an Advanced Diploma of Leadership and Management, in India.  The applicant said the course was available in India but there are no practical-based exams in India, only paper-based and he wants to go back to India with an Australian degree.

20. The applicant said that his parents continue to reside in India and he last saw them in 2014 before he left for Australia.  The applicant said his brother was residing in India until he moved to the United States in 2010 and he last saw his brother in 2014 in India.  The applicant said he also has a girlfriend in India who he plans to marry in November 2022.  The applicant said he speaks to her every day on the phone.  The applicant said he also speaks to his parents every day on the phone and he plans to go back to India because his parents are old and his mother now has cancer.  The applicant said that he has not returned to India since he first arrived in Australia and he has otherwise not taken any trips overseas from Australia (since he first arrived here).

21. The applicant said he wanted to go back to India in 2020 but he could not because of the COVID restrictions.  The applicant said his community ties in India consist of his involvement in a non-profit organisation.  The applicant said he owns farmland in India in his name worth approximately $250,000 Australian.  The applicant said he purchased this in 2010 with assistance from his grandparents.  The applicant said he is not concerned about military service commitments or political and civil unrest in India. 

22. The Tribunal asked the applicant about his potential circumstances in Australia.  The applicant said that he has no family living in Australia.  The applicant said he lives alone in shared accommodation and that his parents are currently supporting him financially.  He said he has no community ties and no property in Australia in his name.

23. On the basis of all this evidence, the Tribunal finds that the applicant’s family ties to India do not of themselves constitute a strong incentive for the applicant to return to India.  In making this finding, the Tribunal has placed significant weight on the fact that the applicant has been in Australia for over seven and a half years and has never returned and despite wanting to return once in 2020, he has managed to keep in touch with his family back in India via electronic means during this time.  The Tribunal also finds that the applicant’s family ties to Australia do not of themselves constitute a strong incentive for the applicant to remain in Australia.

24. The Tribunal asked the applicant when he plans to leave Australia if his current course finishes in November 2022.  The applicant said, ‘On 1 December 2022’. 

25. The Tribunal asked the applicant why he had only completed one course in Academic English and had otherwise most recently been enrolled in only diploma level courses in Australia when he had completed a higher level course, being a Bachelor of Technology, in India.  The applicant said he started his Masters of Engineering and he was doing well and he completed 11 subjects.  He said he got to the project, which was phase two, and his grandfather got sick.  He said his grandfather had helped him from childhood and then his grandfather died and he was in shock.  The applicant said he failed his project and the college denied him an extension to try to complete it again.

26. The applicant said he then enrolled in a graduate diploma because he wanted to study the basics and go back to India because his parents wanted him to get any Australian degree.  The Tribunal asked the applicant why he did not complete his Master of Engineering.  The applicant said he passed 11 units and he got to the projects and he requested another chance to complete them but the college denied his request.  The applicant said his grandfather got sick in October 2017 and he was in shock at the time.

27. The applicant conceded that by October 2017 he had already failed a number of subjects in the Masters of Engineering.  The applicant’s transcript shows that he passed 11 subjects but in attempting to complete the 16 subjects for the degree, he failed subjects 10 times.

28. The Tribunal asked the applicant why he failed subjects in his Master of Engineering prior to October 2017 when his grandfather got sick.  The applicant said that he was still trying to understand study in Australia.  The Tribunal notes that the applicant was working at a petrol station while he was attempting to complete his Master of Engineering.

29. The Tribunal asked the applicant why he did not complete his Graduate Diploma of Engineering.  The applicant said that he was studying and then his visa was refused by the Department on 3 May 2019.  He went into isolation and could not speak to anyone.  He felt like a loser and he wanted to go back to India but his parents requested that he get any degree.

30. The Tribunal asked the applicant why he did not complete his Diploma of Building and Construction.  The applicant said the AAT sent their refusal of his visa and said that he had no confirmation of enrolment (COE).  This happened on 13 October 2020.  The applicant said he was very stressed and he thought he did not have a COE at the time. 

31. The Tribunal accepts the applicant’s evidence that he is currently enrolled in an Advanced Diploma of Leadership and Management based on a COE certificate he has submitted to the Tribunal and also a COE letter he has submitted to the Tribunal from Austrasia College dated 7 December 2021.

32. The Tribunal notes that the applicant has submitted medical evidence to the Tribunal that shows he was receiving treatment for a toothache from February 2021 until May 2021.  The applicant also submitted medical evidence in the form of a letter dated 24 November 2021 from a consultant psychologist that, in summary, indicated that the applicant’s mother and uncle had both been diagnosed with cancer in August 2019 and in March 2021 the applicant’s uncle died.  The applicant confirmed that his mother is still receiving treatment for her cancer.

33. The letter from the psychologist indicates that in May 2019 the applicant consulted with a psychiatrist and was prescribed medication that caused sleeplessness and an aggressive approach to life.  The letter also said the applicant began to smoke constantly as opposed to a few in a day.  The applicant consulted his doctor in India and he was advised to cease the medication.

34. The letter concludes that:

    …from the interview today, it is my opinion that Sravan has been experiencing [a health condition] which had a debilitating impact on him.  Many of the issues were beyond his control and relate to people he loves, the impact of COVID as well as psychological and physical issues.  At this point it does appear as though Sravan has regained his stability both cognitively and emotionally that would enable him to continue to study.  He is currently studying an Advanced Diploma of Leadership and Management at Austrasia College, Canberra.

35. The Tribunal asked the applicant what impact the health of his mother and uncle had on his study from August 2019 onwards.  The applicant said his uncle was very sick and his uncle could not talk and he was very close to his uncle.  The applicant said his uncle used to help him in every aspect of life and seeing him like that, it was running in his mind the thought that his uncle might get better.  The applicant said his mother undertook chemo treatment and her face changed.  The applicant said he could not speak to them on the phone frequently while they were getting treatment.  The applicant told the Tribunal that his mother and uncle’s ill health made his study difficult from the time of their diagnosis in August 2019.

36. The Tribunal asked the applicant if he felt he had been able to study since he enrolled in his current course in May 2021.  The applicant said, yes, he had been attending online and his attendance is good. 

37. The Tribunal asked the applicant why he swapped the focus of his studies a number of times from engineering to building and construction to leadership and management.  The applicant said if he completed his Bachelor of Civil Engineering and the Building and Construction course, he would be working as a technical engineer and afterwards as a civil engineer.  He said that the leadership and management course means that he can become an organisation head like a CEO and he could manage an organisation.  He said he is ultimately planning to start his own business.

38. Based on all this evidence, the Tribunal is concerned that the applicant may be attempting to use the student visa system to stay in Australia for longer.  In making this finding, the Tribunal has placed significant weight on the fact that the applicant has been in Australia for over seven and a half years and is now attempting to extend his stay in Australia until at least mid-2022.  The applicant has only completed one course since he arrived in Australia, being an Academic English course.  The applicant failed a number of subjects in his Master of Engineering before his grandfather unfortunately became sick in October 2017.  The applicant failed a number of subjects after this time as well. 

39. Although the Tribunal accepts that the news of his grandfather’s ill health would have been distressing for the applicant, in light of the fact that the applicant was working during the time he was attempting to complete his Master of Engineering and the fact that he had failed a number of subjects before he received the news of his grandfather’s ill health, on balance the Tribunal does not accept the applicant’s explanation for his non-completion of the Master of Engineering.

40. While the Tribunal accepts the medical evidence insofar as it suggests the applicant’s health issues may have made study difficult between May 2019 and May 2021, the Tribunal does not consider that this evidence explains fully why the applicant has only completed one basic Academic English course since arriving in Australia over seven and a half years ago.

1. The tribunal asked the applicant about the value of this course to his future.  In the genuine temporary entrant statement the applicant submitted to the Department, he said that his plan was to establish a construction company in his home country.  In the genuine temporary entrant statement the applicant submitted to the Tribunal, the applicant said:

   This course prepares me well for the future endeavours.  I would have not much difficulty in securing a great job in my home country with my degree from a prestigious Australian institute.  There are many firms such as Extentia, IBM, AON, Deloitte and KPMG and Amex where I could get a placement.  I could secure a position as an executive manager or director, manager, senior executive, management consultant, product manager, project manager, development manager, development consultant, et cetera, which will provide me with a handsome remuneration of between 60,000 and 70,000 Indian Rupees per month.

2. The Tribunal asked the applicant what his current future plans are.  The applicant said that he plans to get experience working in one of those organisations for one to two years before starting his own company and he plans to expand that company which will be a construction company. 

3. The Tribunal asked the applicant if he had applied for any roles in any of these companies and the applicant said no.  He said he was waiting to finish his degree and he had tried looking but you have to be onshore.  But, he had contacted friends in India and he plans to get his degree and then look for jobs.

4. The Tribunal asked the applicant if he had a written business plan for his future business and the applicant said no. 

5. The Tribunal asked the applicant why he requires his current course in order to complete his future plans when he already has a Bachelor of Civil Engineering.  The applicant said that a proper understanding of leadership qualities was needed to grow his business and this course would help him to understand marketing for business and develop a marketing plan.  He said the course would allow him to understand diversity among workers, make marketing strategies possible, learn about partnerships and funding from other companies as well, and also he plans to work with other companies to get experience before he works in his own company.

6. Based on all of this evidence the Tribunal finds that the applicant has provided only vague details about his future plans and he has failed to explain in any meaningful detail why he requires his current course in order to complete his future plans.  In making this finding, the Tribunal has placed significant weight on the fact that the applicant has not applied for any jobs back home in India and has no written business plan for his future business.

7. The applicant said he did not work in India prior to coming to Australia.  When he was working in Australia he earned between approximately $5200 and $10,400 Australian per year. 

8. The applicant said when he returns to India he expects to earn the equivalent of between $12,000 and $14,400 Australian per year.  The applicant also said that because of the cost of living in India, this would allow him to live a luxury life as well as the fact that he does not have to pay rent because he will live with his family.  Based on the Tribunal’s earlier findings in relation to the applicant’s future plans, the Tribunal places little weight on this evidence.

9. The Tribunal has taken into account the applicant’s immigration history insofar as the applicant has been in Australia for over seven and a half years now, has previously been granted three student visas and is now attempting to extend his stay in Australia until at least mid-2022. 

10. The Tribunal considers that an applicant who is a genuine temporary entrant will have some circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia.  The Tribunal has found that the applicant’s family ties to Australia do not of themselves constitute a strong incentive for the applicant to remain in Australia.  However, when all of the other findings and evidence I have just summarised are also considered, on balance the Tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence. 

11. On this basis 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).

    Conclusion on cl.500.212

12. 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.

13. Given this finding, 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

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

    Margaret Forrest
    Member