VIDIYALA (Migration)

VIDIYALA (Migration) [2018] AATA 3158 (30 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr PRADEEP VIDIYALA
CASE NUMBER:  1619682
DIBP REFERENCE(S):  BCC2016/2864208
MEMBER:Jennifer Cripps Watts
DATE:30 January 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 30 January 2018 at 7:00pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is a genuine applicant for entry and stay as a student – Courses undertaken at a significantly lower level than intended – Lack of academic progress – Significant periods spent not studying – Limited value of further studies – Limited incentives to return to home country – Decision affirmed
LEGISLATION
Education Services for Overseas Students Act 2000 (Cth), Pt 2 Div 3
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

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 on 8 November 2016 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 29 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.
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 temporary entrant.
The visa that is the subject of this review was refused on 8 November 2016. The applicant applied for review by this Tribunal on 22 November 2016, within time, and provided the Tribunal with a copy of the Department’s decision to refuse his student visa. The applicant’s matter was constituted to this member and a written invitation to attend a hearing was sent to the applicant on 19 December 2017, attaching a copy of an extract from the Migration Act 1958, Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications, for his ease of reference.
The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before his hearing, specifically addressing the issue of whether he “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.” The applicant was informed he should provide a copy of his current Certificate of Enrolment (COE).
The applicant appeared before the Tribunal on 30 January 2018 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent, Saini Rajkumar, Migration Agent Registration Number 1678844, who did not attend the hearing.
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 satisfies the primary criteria. The visa was refused because the applicant did not satisfy cl.500.212.
Enrolment (cl.500.211)
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
The applicant provided the Tribunal with a COE for:
a.Diploma of Business, from 22 January 2018 to 21 January 2019; and
b.Advanced Diploma of Business, from 21 January 2019 to 19 January 2020.
Therefore, the Tribunal is satisfied that at the time of this decision the applicant is enrolled in a course of study and accordingly cl.500.211 is met.
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.
Background
The applicant is a 26 year old citizen of India. He first arrived in Australia on 26 July 2014 holding a subclass TU-573 student visa that was granted offshore and ceased on 30 August 2016. He has declared no members of his family unit, either accompanying or non-accompanying. In his application it is noted that his parents, brother and sister live in India.
The applicant came to Australia in 2014 wanting to study an MBA so he could improve his career prospects in India. While he says he would still like to study for an MBA, he said it is too expensive and he cannot afford it so he is now enrolled in a Diploma level course. He was asked at the hearing why he had enrolled in a course that was substantially below the academic level he originally intended and gave vague and evasive answers, referring to financial problems.
Academic Progress
The applicant included in his visa application that he has a Bachelor of Information Technology from Jawaharial Nehru Technological University Hyderabad which he said at the hearing he was awarded before he came to Australia.
The applicant said at the hearing that he arrived in Australia 2014 and enrolled in the Masters programme, his migration agent took money but did not do what was required or support him, the applicant became discouraged and his enrolment was cancelled in 2015.
The applicant has not made any academic progress since arriving in Australia in 2014. He started a Master of Information Systems in 2014 which was a logical progression from the Bachelor of Information Technology he had been awarded in India. The Masters course was, however, cancelled due to non-payment of fees, in 2015. The applicant said he then commenced a Diploma of Management in July 2015, but did not finish this course either, because of failure to commence the first term in 2016 due to financial problems. He said he did not study from November 2015 to July 2016, which the Tribunal notes is a significant eight month gap in his studies, because he said he was depressed due to his financial situation. He then applied for a Masters of Business Administration in 2016, but the offer of enrolment for that course lapsed.
The applicant has provided the Tribunal with current COE’s indicating he is intending to study a package of Diploma/Advanced Diploma of Business from January 2018 to January 2020 and that classes commenced the week before the Tribunal hearing.
In the applicant’s visa application, he states that he has “…gained substantial knowledge through my unfortunate failures from 2014 till date (29 August 2016) and in spite of all these failures I am determined to fight back again from scratch to repair my academics…” The applicant has not, on the evidence, repaired his academics. From August 2016 to the time of this decision, the applicant has not achieved any academic success. For part of the time he did not study at all, and then did not commence a Masters degree he was enrolled in in 2016. In addition, he had previously been enrolled in a Diploma of Management in 2015, which he did not finish, and is now enrolled in a Diploma of Business, which he says he commenced the week before the hearing.
It is accepted on the face of it that the applicant has had financial problems – he said so at the hearing. However, it was pointed out to him that he seemed to be going backwards, not forwards, in his studies. This was discussed with the applicant and the Tribunal’s view is that he is studying the Diploma/Advanced Diploma for the primary reason that it is less expensive than the Masters degree. The Tribunal considers that this does not strongly indicate he is a genuine temporary entrant as it is extending his time onshore to study a course that the Tribunal cannot see will add much value to his future employment prospects.
The applicant has not completed any courses in Australia since he arrived as a student in 2014. He is now enrolled in a Diploma of Business that started the week before the hearing, but the Tribunal is not confident, based on his past performance, that he will complete this course either, on the balance of probabilities.
The Tribunal places significant weight against the applicant’s lack of academic progress in more than three and a half years, including a significant eight month gap where he was not studying at all. If this visa is granted and the applicant completes the courses for which he has provided COEs, in the timeframes indicated, that is, by January 2020, he will have been onshore for five and a half years and only gained qualifications at Diploma and Advanced Diploma level over a period of two of those five and a half years. Less than half of the time he will have spent onshore will have resulted in his gaining an academic qualification and at a lower academic level than his qualifications gained in India. At the time of this decision, the applicant has been in Australia for three and a half years and has not yet finished a course.
Circumstances in the applicant’s home country
The applicant provided no documentary evidence to the Tribunal about his circumstances in his home country. However, he said he had returned to India twice, for a month in 2015, and three weeks in 2017.
The applicant has family in India, but no dependent relatives. He declares he is unmarried in his visa application and that he has no children. The Tribunal is not satisfied that the applicant has sufficient ties to his home country that would motivate him to return there. This, together with his poor academic record over a period of three and a half years, causes the Tribunal to have significant concern about whether the applicant is a genuine temporary entrant, as he claims to be, or whether he is enrolling in courses to maintain residence in Australia.
The applicant already has a Bachelor degree from an Indian university and, according to the statements in his visa application, has worked previously in India as an assistant developer in web designing. The applicant did not provide any information that would indicate that his current courses of study would increase his career or salary prospects in India and the Tribunal is not satisfied that they will.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and that he is continuing to enrol in lower level courses in Australia for the primary purpose of maintaining residence. Accordingly, the applicant does not meet cl.500.212(a).
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.
Jennifer Cripps Watts
Member

[2018] AATA 3158

30 January 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness