Bala (Migration)

[2018] AATA 3318

Bala (Migration) [2018] AATA 3318 (24 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Neetu Bala
Mr Raj Kumar
Master Manyata Manyata
Miss Ridhima Kumari

CASE NUMBER:  1711074

HOME AFFAIRS REFERENCE(S):           BCC2016/2958469

MEMBER:Mark Bishop

DATE:24 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant and the secondary named applicants, respectively, meet the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations

·Cl.500.311 of Schedule 2 to the Regulations

Statement made on 24 August 2018 at 12:46pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) – Subclass 500 (Student) – Genuine temporary entrant – Reasons for studying in Australia provided – Wishes to establish business in Australia – Strong personal and family ties in India – Children live with grandparents – Assets in India – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.212, 500.311 Schedule 8 Condition 8516

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 18 May 2017 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 for the visas on 6 September 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 the applicant intended genuinely to stay temporarily in Australia.

4. The Tribunal resolved the review on the papers.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Genuine applicant for entry and stay as a student (cl.500.212)

8. 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?

9. 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.

10. 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.

11. The applicant provided a statement an supporting documentation to the Department as follows:

    • Statement of Purpose (df 75)

    Ø She wants to complete a Bachelor of Business in Australia having already completed a hospitality course onshore;

    Ø The proposed course will provide a sound theoretical and practical knowledge of the hospitality field;

    Ø She completed a Bachelor in Education and worked as a teacher for a few years. She found the Master qualification in Australia difficult;

    Ø Her family believes in education as wealth but she is more inclined towards her interest and passion in cooking. Her husband supports her decision;

    Ø She is very happy with the student support system at Stott’s College;

    Ø She is enthusiastic and determined to complete study in her interest field;

    Ø She hopes to gain access into the Indian hospitality industry as a manager after completing her Australian studies. She will utilize her previous teaching skills to train a team.

    Ø She hopes to launch and operate a training institute.

    • Applicant’s response to Delegate’s request for more information dated 21/10/2016 (df 77)

    Ø She came to Australia to study a Master of Teaching but found it difficult to cope being an international student;

    Ø Her grandmother’s death and medical issues (stress, headaches and fever) affected her studies. She failed the Master of Teaching course; 

    Ø After discussions with her parents and husband, she decided to study in the hospitality and business fields and enrolled in a Certificate III, Certificate IV, and Diploma of Hospitality leading to a Bachelor of Business at Stott’s College. Her friend in India supports her decision. He advised he would help her establish her own business in India.

    Ø Cooking is her passion. She studied some short cooking courses in India, trained as a coffee barista in Australia and also volunteered at a restaurant; 

    Ø Australian qualifications are far better than qualifications in her home country;

    Ø The Applicant claims she has not violated visa condition 8516. She completed 2 semesters of the Master of Teaching program. She believes she maintained both the SVP enrolment and enrolment in the primary course. It was unfortunate she could not continue the course due to academic difficulty.

    Ø She lives in a rented share house in St Albans with her husband and a few friends.

    Ø Her parents and in laws reside in India and own some property. Her  daughter     lives with them in India.

    • IELTS dated 04/05/2016 (Overall Band Score 6.0) (df 87)
    • Bupa OSHC Family (18/11/2016 to 18/03/2020) (df 117)
    • Medibank Card (17/03/2014 to 17/11/2016) (df119)
    • Bachelor of Arts: Guru Nanak Dev University, India 2006 (df 101)
    • Master of Arts (Sociology): Guru Nanak Dev University, India 2009 (df 102)
    • Certificate III in Hospitality (Commercial Cookery): Front Cooking School 02/03/2016 (df 108)
    • Certificate IV in Commercial Cookery: Front Cooking School 27/06/2016 (df 108)
    • Faculty Record Master of Teaching (partially completed) from University of Tasmania 10/06/2016 (df 32)
    • Various emails between the applicant and University of Tasmania on 14/08/2014 and 11/12/2014 re: international student support for unsatisfactorily results in Master of Teaching (df 58)
    • Reference Letter from Shipra Cooking School, India – training of cooking from 01/07/2012 to 31/01/2013 (df 61)

12. The applicant provided a GTE statement and supporting documentation to the Tribunal as follows:

    • GTE Statement (tf 71)

    Ø  She lodged all required documents to the Department for her student visa application;

    Ø  She is not a job oriented person but a businessperson. She plans to build and open her own business for her family, as it is less expensive in India than to do so in Australia;

    Ø  She can only find a job as a chef in Australia. It is not enough to support her family and she cannot raise her children without the assistance of her parents and in-laws who are currently in India;

    Ø  She owns a house in India. Her husband is onshore with her but returning to her kids and family is the biggest incentive to return home;

    Ø  Her sole purpose of studying in Australia is to gain proper education to implement her knowledge in running her own business in India;

    Ø  She is part of a large community in India but in Australia there are less gatherings and social networking;

    Ø  Hospitality is a leading industry in India but Australia is the best country to study hospitality according to international standards.

    • COE – Bachelor of Business, Acknowledge Education Pty Ltd (24/07/2017 to 30/06/2019) (tf 69);
    • Statement of Results and Letter of Confirmation from Acknowledge Education Pty Ltd: Bachelor of Business, 2018 (tf 67 - 68);
    • Bupa OSHC Family (18/11/2016 to 18/03/2020) (tf 66);
    • English Language Course – University of Tasmania 06/06/2014 (tf 65);
    • Certificate III in Hospitality (Commercial Cookery), Front Cooking School 02/03/2016 (tf 61 - 64);
    • Certificate IV in Commercial Cookery, Front Cooking School 27/06/2016 (tf 58 – 60);
    • Diploma of Hospitality, Front Cooking School 20/12/2016 (tf 55 – 57);

13. The applicant has resided in Australia since March 2014 as the holder of a TU-573 visa and sequential Bridging visas. The applicant provided reasons for studying in Australia. She advised of strong personal and family ties to India. She advised her daughter is currently being raised by her parents in India. He husband has been onshore since November 2017. Her children do not live in Australia. She provided evidenced of significant land holdings in India. She advised her ability to earn a sufficient income to raise her family was easier in India than Australia. She did not advise of any military commitments in India. He did not advise of any civil or political disturbances in India. She provided sound reasons for studying in Australia and explained how that would benefit her upon return to India. The applicant advised of a large Indian community in Melbourne. She also advised social and networking opportunities within that community were limited.

14. The Tribunal is of the view the applicant has personal ties to India of family, community and potential employment and these tie serve as a significant incentive to return to her home country.

15. The applicant has limited ties with Australia. Apart from the now presence of her husband all her immediate and extended family reside in India. Her children live in India. She advised she needs the assistance of her parents and in laws in India to raise her children. She did not advise of any community involvement. Her work opportunities are limited because of visa conditions. The Tribunal is unable to discern any purpose for her continuing residence in Australia except to study. The Tribunal accepts the applicant is enrolled in the HE sector. She has been diligent in her studies in the hospitality field.

16. The Tribunal is of the view the applicant’s ties to Australia are limited and do not present as a significant incentive to remain in this country.

17. The applicant advised of her education in Australia within the hospitality industry. It extends to successful completion of Certificates and Diploma in Commercial Cooking and Hospitality Management. These achievements complement her prior education In India in the cooking industry and her practical work experience in Australia. The applicant has provided an overview of her plans to open her own business in India. The applicant has provided detail of her progress in her Bachelor degree to date. The Tribunal is inclined to the view that this degree is not essential to open or administer he own enterprise. The applicant successfully completed HE studies in India prior to coming to Australia.

18. The Tribunal is of the view the applicant seeks to complete a course that is consistent with her current level of education and that this course will have impact on her ability to obtain employment in her home country.

19. There is no evidence before the Tribunal the applicant is in breach of any visa obligations or conditions attached to his visa. Three is no evidence before the Tribunal the applicant has sought to enter other countries or has been refused a visa to enter other countries.

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. Secondary applicants Mr Raj KUMAR, Master Manyata MANYATA and Miss Ridhima KUMARI

22. The above named persons are members of the family unit of the applicant. They are members of the family unit of a person (the primary person) who holds a student visa. As the applicant was found to meet cl.500.212 the secondary applicants meet the requirements of cl.500.311. Accordingly the secondary applicants meet the criteria for the grant of a student visa.

    Conclusion on cl.500.212

23. 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.

24. 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.

25. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant  and secondary applicants, respectively, meet the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations

    ·cl.500.311 of Schedule 2 to the Regulations

    Mark Bishop
    Member