1509315 (Migration)

[2016] AATA 3597

1509315 (Migration) [2016] AATA 3597 (24 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mohammad Sarfraz Alam

CASE NUMBER:  1509315

DIBP REFERENCE:  BCC2015/940254

MEMBER:Lilly Mojsin

DATE:24 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

·cl.573.223(1)(a) of Schedule 2 to the statement of decision and reasons

Statement made on 24 March 2016 at 8:32am

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 25 March 2015 to study a Bachelor of Business at the Holmes Institute commencing on 23 March 2015 and ending on 31 December 2017.

3. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student 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), or whether the applicant has the support of the relevant Minister (Subclass 576).

4. The delegate refused to grant the visa on 22 June 2015 because the applicant did not satisfy the requirements of cl.573.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant is a genuine applicant for entry and stay as a student.

5. The applicant appeared before the Tribunal on 23 March 2016 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is a national of India. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573.

9. In a statement to the Tribunal the applicant stated that he Initially studied for a Diploma of Science and Engineering at UTSInsearch. He completed 2 semesters and whilst studying started working at a hardware and tools company and became interested in that field. He then studied at TAFE a Certificate III in Wall and Floor Tiling. After completing that course he completed a Certificate IV in Business. He started studying a Bachelor of Health Sciences in February 2012 and he attended classes until November 2014. His parents were opposed to his starting a tiling business in India after he completed his tiling course and wanted him to study health sciences as a pre-requisite to a course in medicine. He passed the 1^st semester but his performance started to drop during the 2^nd semester. He deferred his studies because his aunt died of cancer. He was not able to concentrate and he felt very lonely and isolated. During his 3^rd semester, after taking his sick and elderly grandfather back to India who visited him in Australia, the applicant missed his exams and failed. Eventually his Confirmation of Enrolment [CoE] was cancelled. He quit his job to concentrate on his studies. His family is financially able to support him as his father is a retired government officer and his mother owns her own boutique business. His family own lands, commercial and residential properties in India.

10. The applicant then enrolled in a Bachelor of Business and he has now completed 50% of the course. His future aim is to have his own construction company and by having a bachelor degree in business combined with a tiling certificate, this will help him achieve his goals, help him better understand business principles and help him to successfully run his own business when he returns to India. Without a tertiary qualification. the applicant would have no job prospects and would have difficulty starting a business.

    The applicant advised the Tribunal that he has no reason not to go back to India. His family and fiancé are all in India. He completed trade certificates in Australia and if he intended to stay in Australia he would have applied for a visa based on those trade certificates. He is not working at the moment and his studying and concentrating on his studies.

    REASONS AND FINDINGS

11. The issue in the present application is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(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)     …

12. 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.

13. 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.

14. The Tribunal accepts that the applicant is a single man whose family live in India. He is engaged and intends to marry his fiancée on his return to India. The applicant has studied tiling and is currently studying a Bachelor of Business in order to start a construction company on his return to India. He studied health sciences, at the direction of his parents, with a view to studying medicine but a combination of family illness and difficulty with his studies caused him to have his CoE cancelled. He resigned from his employment and began to recommence studies in business. He has currently completed 50% of the course.

15. Weighing up the applicant’s circumstances, the Tribunal places weight on the following:

    ·the applicant’s family and his fiancé are all in India

    ·the applicant does not work at the moment and is concentrating on his studies

    ·the applicant’s family provide his financial support in order to complete his studies

    ·the applicant has successfully completed 50% of his course in Bachelor of Business and expects to have completed his studies at the end of 2017

    ·    the applicant has indicated an intended career path that requires him to complete his current studies.

16. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, on balance the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.573.223(1)(a).

17. As the Tribunal has found the applicant meets the requirement of cl.573.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

18. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

    ·cl.573.223(1)(a) of Schedule 2 to the Regulations.

    Lilly Mojsin
    Member