Abdullah (Migration)

[2018] AATA 3182

Abdullah (Migration) [2018] AATA 3182 (11 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Raiyan Matin Bin Abdullah

CASE NUMBER:  1704406

HOME AFFAIRS REFERENCE(S):           BCC2016/3824930

MEMBER:M. Edgoose

DATE:11 July 2018

PLACE OF DECISION:  Melbourne, Victoria

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 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 11 July 2018 at 9:29am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – Current stable family environment – Statements by legal guardian – Intention to return to home country – Birth mother’s intention to care for child – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

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 and Border Protection on 20 February 2017 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 for the visa on 15 November 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.

3. The delegate in this case refused to grant the visas 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 that the applicant intends genuinely to stay temporarily in Australia.

4. The applicant was assisted in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 applicant’s for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.

7. 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?

8. 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.

9. 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.

10. The applicant is a 7 year old boy from Singapore who first came to Australia as a 2 year old on 6 November 2012 on a Tourist Visa. Since November 2012 the applicant has returned to Australia on 7 further Tourist Visas.

11. The applicant’s legal guardian is his great aunt who is an Australian Citizen.

12. The applicant applied for the Student visa (subclass 500) on 15 November 2016 and the delegate refused to grant the visa on 20 February 2017 on the basis that the ‘Genuine Temporary’ entrant criterion, or GTE criterion which applies to every student visa, was not met.

13. The Tribunal acknowledges the Statutory Declaration (AAT Folio 47b) made on 24 March 2015 in Singapore by the applicant’s birth mother

    a.The applicant’s great aunt, who is an Australian citizen,’ has with my permission and consent and that of my parents takes over my role as my son’s main caregiver physically, emotionally and financially.

    b.My son, the applicant, has since 2012 with my permission and that of my parents, resides with the applicant’s great aunt and her family in Victoria, Australia.

    c.I have attested a Deed of Guardianship on 24 March 2015 appointing, the applicant’s great aunt, to be the legal Guardian of my son.

    The Tribunal accepts that on 24 March 2015 the applicant’s great aunt was granted legal guardianship of the applicant.

14. The Tribunal accepts the Family Justice Courts of the Republic of Singapore (AAT Folio 47-48b) decision that the applicant’s great aunt be appointed as Guardian of the applicant on 16 April 2015.

15. The Tribunal gives regard to the submission made by the applicant’s aunty, the daughter of the applicant’s legal guardian dated 24 April 2018 (AAT Folio 48 – 49b) which provided a detailed background about the applicant’s birth mother and her troubled childhood;

    a.The applicant’s birth mother gave birth to the applicant when she was only 15 years old;

    b.The applicant’s birth mother allowed the applicant’s great aunt to become the legal guardian of the applicant;

    c.The guardianship order was made in mutual agreement with the birth mother;

    d.In the future when the applicant’s birth mother situation in Singapore is more stable that she will resume full care of the applicant so that he can return to Singapore;

    e.That at this point in time the applicant’s birth mother is not capable of doing this and that she doesn’t have a lot of support back in Singapore;

    f.The applicant is attending primary school in Australia and is in a safe, stable and comfortable environment;

    g.That they are undertaking all financial obligations for the applicant;

    h.The Australian education system provides further benefits to children in their primary years due to a well-rounded curriculum as compared to what is available and offered in Singapore;

    i.We simply feel, in agreement with his mother, that in looking at our mutual present circumstances it is in the best interests of the applicant to study in Australia under our care for a period of time. The arrangement is and has always been intended to be temporary. There is no incentive for us to secure a permanent stay for the applicant. The applicant’s mother has no intention to travel to Australia and has not been included in any of his applications – she has nominated my mother as her sons Guardian.

    The Tribunal accepts the comprehensive submission to the Tribunal by the applicant’s aunt.

16. The Tribunal gives regard to the submission made by the applicant’s great aunt, the applicant’s legal guardian, dated 24 April 2018 (AAT folio 49 – 50) which stated the reasons for enrolling the applicant to study for a period of time in Australia;

    a.That she can certify under oath that neither I nor his birth mother have any intention of trying to secure any type of permanent stay for the applicant in Australia;

    b.That the applicant’s mother wants him to return to Singapore within the next couple years once she can establish herself with a consistent and adequate scope of employment and lifestyle and that the arrangement is determined to be temporary, that any prospects of permanent stay presently are remote;

    c.She is fully aware that the student visa within the primary school sector would be for only a maximum of two years.

    The Tribunal accepts the legal guardian’s explanation to the Tribunal.

17. The Tribunal gives regard to the substantial submission made by the applicant’s legal representative, Lena Hung and Associates, (AAT Folio 55 – 59a) as a true and accurate summary of the applicant’s current situation in Australia. The submission also acknowledges the applicant’s circumstances both in Australia and in his home country of Singapore; the applicant’s current primary school education; and the intentions of the applicant’s legal guardian in Australia and his birth mother back in Singapore.

18. The applicant’s legal representative submitted to the Tribunal a copy of his Confirmation of Enrolment where he is currently studying Primary (Prep to Year 6) (AAT Folio 78) which started on 30 January 2017 and is due to be completed on 20 December 2022. A copy of the applicant’s school reports was also submitted to the Tribunal.

19. Given the applicant’s current stable family environment in Australia and the written statements made by the his legal guardian and the applicant’s aunty, both of whom are Australian citizens the Tribunal is satisfied that the applicant is a genuine temporary entrant to Australia and will return to Singapore at a time when his mother is capable of taking care of him.

20. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

21. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

22. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

23. 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 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    M. Edgoose
    Member