1509020 (Migration) [2016] AATA 4300 (16 August 2016)

Last Updated: 7 September 2016

1509020 (Migration) [2016] AATA 4300 (16 August 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Rambabu Mandalapu

CASE NUMBER: 1509020

DIBP REFERENCE(S): BCC2015/732572

MEMBER: Mary-Ann Cooper

DATE: 16 August 2016

PLACE OF DECISION: Melbourne

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

Statement made on 16 August 2016 at 2:36pm

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 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 to the Department of Immigration for the visa on 6 March 2015. The delegate decided to refuse to grant the visa on 18 June 2015. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).
3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because, based on his lack of academic progress, his study history and the lack of value of his courses to his future, the delegate determined that he was using the student visa program to circumvent permanent migration programs and was not satisfied he was a genuine applicant for entry and stay as a student or that he intended to stay in Australia temporarily.
4. The applicant appeared before the Tribunal by telephone on 4 August 2016 to give evidence and present arguments.
5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.
7. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

(a) the Minister is satisfied that 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) ...

8. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.
9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
10. As recorded in the delegate’s decision, a copy of which was provided with the review application, the applicant arrived in Australia in December 2008 and since then has been enrolled in a Certificate IV and Diploma of Business, Certificate III, Diploma and Advanced Diploma of Horticulture, a Diploma of Production Horticulture, and a Diploma of Community Welfare Work. At the time of application he was enrolled in a Diploma of IT Networking. The delegate noted that he claimed he was now studying IT because it gave him a “better chance to get employment in India” and that he wanted to start a networking business in India. The delegate considered his poor academic performance and numerous course changes and cancellations indicated that he was using the student visa program to maintain residence in Australia. It was noted that he was not advancing academically, that all his courses had been in the VET sector and were generally inconsistent with his educational and employment background. In addition, except for his recent Certificate IV in IT, he had not provided evidence of any course completion and therefore the delegate was not satisfied he had a reasonable completion level or that his courses were of any value to his future. While it was accepted that he had family connections in India, this factor was outweighed by the above factors and the delegate determined that the applicant was using the student visa program to circumvent the permanent migration programs and was not a genuine temporary entrant. Consequently the visa was refused.
11. At the hearing, the applicant stated that he had received a Bachelor of Science in India but had not been employed. He said he came to Australia in 2009 on a student visa to undertake a Diploma in Community Welfare Work. He acknowledged that he did not complete the Diploma and said this was because he felt it did not suit him. He claimed that he changed to horticultural studies because it was related to science and his family had a farm in India. He claimed that he had undertaken and completed these qualifications between 2010 and 2013 and maintained that he had no gaps in his study. The tribunal observed that it did not have any copies of his qualifications and, despite having asked for the documents in its hearing invitation of 18 July 2016, allowed some further time for their provision. The applicant later provided copies of a Certificate III, IV and Diploma in Horticulture, each dated 18 December 2011. He also supplied a statement dated 23 March 2013 indicating that he had completed 4 subjects of an Advanced Diploma of Horticulture. The tribunal notes that the Department’s file contains a letter from Jabin Hopkins Institute of Technology (Jabin Hopkins) advising that he finished his training for a Certificate IV in IT on 1 March 2015 however, somewhat inconsistently, goes on to state that “he has to complete a few assessment activities to fulfil the requirement for the qualification.” On the basis of this information the tribunal observes that between 2011 and March 2015, as the holder of a student visa or a bridging visa with study rights, the applicant did not complete any courses.
12. When asked why he had not undertaken his studies in his home country, he responded that his friends encouraged him to come to Australia because the standard of education was good. The tribunal asked about his current course and his course progress. He responded initially that he had completed 4 units but the college had cancelled his enrolment when his visa was refused. The tribunal queried this statement, noting the explicit statement in his bridging visa grant that he had permission to study. The applicant responded that he “did not know that”, if he did not have a student visa he thought he was not entitled to study. He maintained that the college had cancelled his Confirmation of Enrolment (CoE). The tribunal suggested that his CoE was cancelled because he voluntarily ceased studies. He continued to fail to respond directly to the tribunal’s questions in this regard, stating that he did not think he needed to attend. The tribunal asked him if he was saying he did not turn up to classes. He responded that he did not think he needed to go because his visa was refused. The tribunal reiterated that the terms of his bridging visa clearly permitted him to continue studying and observed that if he had been serious about his study he would have continued it while the Department’s decision was under review. He again responded that he did not know. The tribunal noted that he had been in Australia over 6 years and had been granted more than one student visa. He acknowledged that he had been granted bridging visas on previous occasions. The tribunal told him it found it difficult to believe that he did not know he could continue to study and that his failure to do so suggested that he was not serious about his studies and simply wanted to prolong his stay in Australia. He responded that once he was finished he would return to India and work in IT.
13. When asked why he had changed courses to the IT field, he maintained that it was relevant to horticulture because he could create a website and sell produce from his online store. He said if this did not work out, his IT qualifications were relevant for any kind of business and he could work in IT in a big company.
14. When asked about his anticipated remuneration in India and Australia for such work, he said that starting out in the IT industry he would probably earn $AUD1000 per month in India and about $500-$700 per week in Australia. After one year’s experience he claimed he would earn about $AUD4000 per month in India and $1300 per week in Australia.
15. When asked what he proposed to do at the end of his course, he told the tribunal, somewhat inconsistently with his previous evidence, that he would go back to India and find a job and get experience in the networking field in a big company. He said his family resides in India and that they are very comfortable, owning cotton and banana farms and have other assets and a business. He claimed he has no social or other ties with Australia. When asked what he did in his spare time, he said he would read, do something online or listen to music. As he earlier told the tribunal, he also worked part-time as a taxi driver.
16. The tribunal noted the delegate’s comments regarding his low completion level, poor academic performance and large number of course cancellations and that the delegate considered he was using the student visa program to maintain ongoing residence in Australia and not to advance academically. He denied this was the case and said when he finishes his course he will return to India. He maintained that there were other ways of his extending his stay in Australia if that was what he wanted. The tribunal observed that he had undertaken a number of unrelated courses in the VET sector and, especially considering his degree qualification in India, had not advanced academically but had regressed in study level. He responded that he had a farmer’s background and that was why he had studied horticulture, and the business and IT qualifications would be relevant to any field. The tribunal also observed that if he had continued his most recent course it would be completed and that his cessation of studies further indicated he was seeking to extend his stay and was not a genuine student. He responded that he had not known and had made a mistake. He claimed he had attended his education provider two weeks previously and they had told him he should finish his course this time. The tribunal asked why he had not re-enrolled on that occasion. He responded that if he was given the visa he would enrol, finish the course and return to India.
17. When asked if there was anything else he wished to say, he reiterated that the IT course would be very good for his career and if he was granted the visa he would complete his studies.
18. The Tribunal has considered whether the applicant intends genuinely to stay in Australia temporarily, having regard to the factors specified in Direction 53 regarding his potential circumstances in Australia, the value of the courses to the applicant’s future, his immigration history and other relevant information provided by the applicant.
19. Having regard to the evidence before it of the applicant’s circumstances, and for further reasons below, the Tribunal is not satisfied that he is a genuine applicant for entry and stay as a student or that he genuinely intends to stay in Australia temporarily.

The applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the course to the applicant’s future.

20. The tribunal has considered the applicant’s circumstances in relation to his home country, India. The Tribunal acknowledges that the applicant’s family remains living there and it accepts that their presence in India may constitute an incentive for his return. There is little before the Tribunal as to the economic circumstances of his family. The applicant’s oral evidence is that his family is very comfortable financially, and the tribunal accepts that his family’s financial circumstances are not a disincentive for his return. There is also nothing before the Tribunal indicating that there is any particular civil or political unrest, or military service commitments, that would act as disincentives for his return to India.
21. With regard to the applicant’s potential circumstances in Australia, the Tribunal considers that the applicant has some incentives to remain. As confirmed by his oral evidence, he has greater earning capacity in Australia.
22. In relation to the value of the course to the applicant’s future, as noted above, before coming to Australia the applicant had completed a bachelor degree. His study in Australia has been a regression academically, the highest level qualification he has obtained is a Diploma in Horticulture, completed in 2011. Following that course he regressed to a Certificate IV in IT in 2015 and currently, another Diploma. On the material before the Tribunal, he has taken an inordinate amount of time to complete several unrelated, relatively short, low level courses. Given the applicant’s now expressed career plan in IT, his previous courses have been of little apparent value and of no clear career benefit to him. While the applicant claimed a link to horticulture and his family’s farms in India, his evidence regarding his future plans was vague. That is, initially he stated that he would return and use his IT skills on his farms but later claimed that he intended to return to work in a business. Overall the tribunal found the applicant’s evidence, particularly in this regard, inconsistent and unconvincing.
23. Having regard to all the evidence before it concerning the applicant’s courses, which are all relatively low level vocational courses inconsistent with his bachelor degree, the Tribunal is not persuaded that they offer much value to his future and considers they have been undertaken for the purpose of circumventing the student visa program and enabling the applicant to prolong his residence in Australia. This view is reinforced by his failure to continue his course in the period prior to the tribunal hearing. In this context, following the hearing, the applicant provided the tribunal with a CoE from Jabin Hopkins for a Diploma of IT Networking which indicated his course would start on 15 August 2016 and end on 14 August 2017. The tribunal notes that the CoE was created on 4 August, the same day but after the hearing. This document confirms that the applicant’s provider was willing and able to continue his enrolment and his claims, that it had cancelled his enrolment because his visa was refused, cannot be sustained. The tribunal considers the applicant’s responses in this regard to be, at best, disingenuous. His failure to continue and complete his course reinforces the tribunal’s perception that he is not a genuine student seeking to remain temporarily in Australia for this purpose, but is using the student visa program as a means of prolonging his stay in Australia. Contrary to his claims that he could provide evidence that had completed four subjects of the course, he did not do so.
24. For reasons noted above, the tribunal does not accept his evidence that his education provider cancelled his course because his visa application was refused. Rather the tribunal considers he simply stopped studying because, as he said, he did not think he needed to go. This reinforces the tribunal’s impression that he has no commitment to his study and is not a genuine student who genuinely intends a temporary stay.
25. While accepting that the applicant has family in India that may represent an incentive for his return, when balanced against the low level of the unrelated courses he has and is undertaking, and the length of time he is taking to complete them, the tribunal considers that this indicates that he is using the student visa programme primarily to maintain residence in Australia and is not a student who genuinely intends a temporary stay.

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;

26. There is no evidence before the Tribunal that the applicant made any previous visa applications to Australia prior to the student visas for which he applied. Nor does it have information in relation to any visa applications to other countries and it accepts the applicant’s evidence that he has not made any such applications.
27. In relation to his Australian immigration history, the tribunal finds that the applicant arrived in Australia in December 2008 on a subclass 572 visa valid until 15 April 2011. Since his arrival he has held student visas or bridging visas with study rights and has been in Australia for a period of over 7 years. In that time he has enrolled in and cancelled (or had cancelled) several courses, completing only a Certificate III, IV and Diploma in Horticulture in 2011 and then a Certificate IV in IT in 2015. He has provided no plausible explanation as to why he has either taken so long to complete these relatively short low level courses or, notwithstanding his claims as to the inter-relationship between horticulture and IT, why he has studied in unrelated areas.
28. The tribunal considers that his extremely slow progress in unrelated courses, combined with his failure to maintain his studies while on his bridging visa, to be indicative that he is not a genuine applicant for entry and stay as a student and it is not satisfied that he intends genuinely to stay in Australia temporarily.

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

29. The Tribunal has taken into account the applicant’s claims however it considers the length of his stay in Australia, his undertaking of several unrelated courses, his low level of course completion, his academic regression and the vagueness of his stated aims if he returns to India, lead the Tribunal to give little weight to the presence of his family in India. After the original proposed completion date for his Diploma of IT Networking of 1 March 2016, his current confirmation of enrolment indicates that it is scheduled to be completed in August 2017. The Tribunal is not persuaded, for all the above reasons, that the applicant has any genuine intention to depart Australia at the completion of the current course in respect of which he applied for this visa.
30. The Tribunal has considered the totality of the applicant’s circumstances, including his explanations and evidence, but finds them vague and unconvincing and considers that they indicate that he is using the student visa program primarily to maintain residence in Australia and to circumvent the student visa migration program.
31. On the basis of the above, having regard to the factors specified in Direction 53 and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.
32. Accordingly, the applicant does not meet cl.572.223(1)(a).

CONCLUSION

33. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

DECISION

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

Mary-Ann Cooper
Member