Anjali Devi (Migration)

[2017] AATA 1075

Anjali Devi (Migration) [2017] AATA 1075 (14 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Anjali Devi
Mr Sunny Davinder

CASE NUMBER:  1611774

DIBP REFERENCE(S):  BCC2016/830498

MEMBER:Wendy Banfield

DATE:14 June 2017

PLACE OF DECISION:  Sydney

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

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

·cl.573.322 of Schedule 2 to the Regulations

Statement made on 14 June 2017 at 12:09pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Genuine temporary stay in Australia – Changed course of study – Unsatisfactory progress – Plans for work and incentive to return to India –

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, r 1.12, Schedule 2, cl 573.223, cl 573.322

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 29 February 2016. The delegate decided to refuse to grant the visas on 25 July 2016. 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 visas because the applicant did not satisfy the requirements of cl.573.223 of Schedule 2 to the Regulations because after considering the applicant’s circumstances, they were not satisfied the applicant intends genuinely to stay temporarily in Australia. The Department considered the applicant’s potential circumstances in Australia and her current studies. The Department was not satisfied the applicant demonstrated how her plans in Australia will improve her employment prospects in her home country in future.

4. The applicants appeared before the Tribunal on 5 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

   The hearing

6. The applicant first arrived in Australia on 20 February 2014 to undertake a Masters of Information Technology. In her first semester, the applicant found she was pregnant and had difficulty studying. The baby was born in October 2014 and the applicant recommenced her studies in the third semester. The applicant’s family members returned to India, taking the child with them to care for while the applicant is in Australia completing her studies. She said this arrangement was to allow her to concentrate on her education.

7. According to the applicant, she failed her subjects at university due to difficulties in communicating and because she was missing her child. The applicant transferred to Holmes Institute to take an MBA and Accounting program as it better suited her circumstances. The applicant declared she chose to study in Australia as such qualifications are well recognised in India and her studies offer the type of practical knowledge she is looking for.

8. The applicant stated she plans to return to India and be reunited with her daughter after completing her studies. She said she plans to pursue work in the accounting field and that her father, who works in a government position, advised her in this regard. The applicant said she is attending her course and passing all her subjects.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573.

11. The issue in the present case 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 considered the applicant’s circumstances in India, her potential circumstances in Australia and her immigration history. She is currently undertaking an MBA and is approved to study a Master of Professional Accounting course. The applicant explained her situation after arriving in Australia in which she became pregnant and had a baby. This caused difficulties for her as she had just commenced at QUT but had to defer until the third semester of the year. From the evidence available to the Tribunal, it appears the applicant sought a deferment from her studies in 2014, recommenced in 2015 and then changed courses due to unsatisfactory progress.

15. The Tribunal is satisfied the applicant’s circumstances in this regard were beyond her control and that she acted appropriately as a result. She explained that in India, she had graduated with a Bachelor of Science specialising in IT and came to Australia to study a Masters in the same area. She subsequently changed courses and gave explanations as to why this occurred. The applicant is currently enrolled and studying as required.

16. Regarding her circumstances in her own country, the applicant has a young child in India with her family and declared an intention to return after her studies to be reunited. She also plans to pursue a career in business with a focus on accounting. The applicant said she is not working in Australia and her husband is a trolley collector. The Tribunal finds the applicant has incentives to return to India due to her daughter being there and for her future career plans. 

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

18. 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.

    Member of Family Unit – Secondary visa applicant

19. The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria which require that they be members of the family unit of a person who satisfies the primary criteria: relevantly cl.573.223. Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

20. As the Tribunal accepts that the first named visa applicant satisfies the primary criteria, the secondary applicant meets cl.573.322 because they are a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria.

    DECISION

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

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

    ·cl.573.322 of Schedule 2 to the Regulations

    Wendy Banfield
    Member