BALOCH (Migration)

[2018] AATA 3405

BALOCH (Migration) [2018] AATA 3405 (22 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SNAIR BALOCH

CASE NUMBER:  1709941

HOME AFFAIRS REFERENCE(S):           BCC2016/3941921

MEMBER:Penelope Hunter

DATE:22 August 2018

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 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 22 August 2018 at 2:35pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 500 (Student) – Genuine student criteria – Diploma compliments current Bachelor degree course – Use of skills in future career – Good academic record – Parents finance studies – Visits home country – Lives with paternal uncle and sister in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, 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 April 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 23 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 visa 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 with a genuine applicant for entry and stay Australia temporarily as a student.

   BACKGROUND

   Application to the Department

4. The applicant is a citizen of Pakistan and arrived in Australia on 18 June 2012, on a TU 571 student visa on the basis of her enrolment in high school, secondary education.

5. The applicant applied for the visa in order to undertake study in a Bachelor of Business with course dates from 20 March 2017 to 21 December 2019. In addition to her high school studies the applicant had previously been  granted a further subclass 572 student visa to undertake a Diploma of Early Childhood Education and Care (completed September 2016)

6. The applicant provided the following information in support of her application;

   i.She had previously conducted herself in line with immigration regulations, she had not given any opportunity for complaint by her education providers.

   ii.She preferred to study in a multicultural environment like Australia rather than Pakistan. The course chosen directly related to her previous studies and benefitted her in her future. Her studies would help her to choose a professional career upon return to Pakistan.

   iii.Her parents wished for her to return to work for the benefit of her country of birth once she had completed her studies.

7. The delegate in their decision, copy of which the applicant has submitted to the Tribunal, set out the following reasons for refusal of the visa;

   i.The immigration history of the applicant was of concern as she had not departed Australia since her arrival in 2012.

   ii.The delegate did not consider that the applicant’s Bachelor of Business degree related to her Diploma of Early Childhood Education and Care.

   iii.It was considered that the applicant had not provided any substantial evidence of close ties to her home country and she had been unable to demonstrate substantial economic ties or personal assets. Furthermore, given the disparity of economic circumstances between Australia and Pakistan, the delegate was not satisfied that the applicant had significant incentive to return to her home country.

   Tribunal Application

8. Prior to the Tribunal hearing the agent for the applicant provided a letter from Federation University, dated 27 July 2018, confirming that the applicant was a current enrolled fee- paying student, and additional submissions which set out the following relevant information;

   i.The applicant aimed to complete her studies from high school to a Bachelor’s degree in order to gain complete skills to build up her career.

   ii.She had chosen to study in Australia spending a large amount to get a broad exposure with students from multiple nationalities.

   iii.She had remained a regular full time student.

   iv.She intended to return to Pakistan after the completion of her Bachelor’s degree to start her career there.

   v.Her parents and other family members were waiting for her to return to Pakistan. There is a high demand in Pakistan for people who have gained skills in Australia and other Western countries.

   vi.She did not travel frequently between Australia and Pakistan once she arrived as she could not afford the high costs of airfares associated with frequent travel.

9. The applicant appeared before the Tribunal on 14 August 2018 to give evidence and present arguments.

10. The applicant was assisted in relation to the review by their registered migration agent, although her agent was not present at the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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. The issue in the present case is 500.212.

13. 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?

14. 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.

15. 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.

16. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

17. The applicant has a consistent study record in Australia. She has completed previous courses in which she has enrolled. She has demonstrated course progression from secondary qualifications, to diploma level and now to her current Bachelor degree.  The applicant has not enrolled in short inexpensive courses, according to her CoE, her tuition fee for her current degree is $74,000. The Tribunal has had regard to the fact that the applicant had undertaken and successfully progressed in her course while awaiting review, as is the general expectation of all applicants on student visas. The Tribunal is satisfied from her evidence that she is earnestly applying herself to her studies and is focused on completing her course as soon as possible. The applicant was able to discuss without hesitation at the hearing, the content of her course and her perceived benefits in obtaining the qualification in Australia. The applicant has argued, and the Tribunal accepts, that her Diploma complements her Bachelor degree as it was her intention to work in Early Childhood Education and potentially operate her own business. The applicant claimed to have made some investigations through her parents,  and believed that if she had high well-recognised qualifications, and established a business with high standards she believed that she could tap into an exclusive market and have a good business.

18. In her home country the applicant has her parents, extended relatives and her family home. Her father works in transport and her mother is a beautician. They are financially supporting her education. The applicant herself does not have any assets, however the Tribunal also notes her young age when she first arrived in Australia. The applicant claimed that there were no incidents of civil or political unrest that would act as an incentive for her to remain in Australia. Despite the finding of the delegate that the applicant had not returned to her home country, the Departments Movement Records confirm that the applicant has actually departed Australia on two occasions since her arrival in 2012. Considering these matters, the Tribunal is satisfied that there are circumstances in the applicant’s home country which act as an incentive for her to return.

19. In Australia the applicant has her sister, who has also engaged in study. They are living at the residence of her paternal uncle. It is acknowledged that these ties could serve as an incentive for her to remain in Australia. However, as set out above the applicant is progressing and engaging in her courses, the Tribunal is not satisfied that this factor of itself indicates that the applicant is using the student visa program to circumvent the intentions of the migration program. She claimed to have no partner in Australia, and there is no evidence that she has entered into a relationship of concern.

20. The Tribunal is satisfied from the evidence and submissions of the applicant that the course she is undertaking is of value to her future. The applicant is young and she has limited work experience. It is accepted that tertiary qualifications are desirable for future employers and her area of study will assist her to the ultimate goal of opening her own business. The Tribunal acknowledges that there is a disparity of economic circumstances between Australia and Pakistan, however both the applicant’s parents are gainfully employed, they own property and have the resources to pay for the overseas education of their children. The Tribunal accepts with her family support and proposed qualifications the applicant will be able to obtain gainful employment, in the area of business or education, upon the completion of her qualifications to support herself at a comfortable level.

21. The applicant has returned to her home country several times since her initial arrival. Although she has not returned annually, the Tribunal accepts her submissions regarding the costs of overseas travel. The applicant gave evidence that she did not propose further study on the completion of her degree, and intended to return to her home country. The immigration history of the applicant does not raise concerns for the Tribunal.

22. Therefore having considered the particular circumstances of the applicant in accordance with the relevant criteria in Direction 69, the Tribunal is prepared to give the applicant the benefit of the doubt. The Tribunal accepts the applicant’s reasons as to why she sees Australia as a better environment in which to obtain well-regarded qualifications and improve her employment and remuneration prospects in her home country.

23. 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).

    Does the applicant intend to comply with visa conditions?

24. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

25. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8535 (limited visa entitlement), 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

26. The applicant has signed wither application an undertaking to comply with any conditions the subject of which the visa is granted. There is no evidence to demonstrate that this would not be the case. When questioned at the hearing, the applicant gave evidence that she was complying with the conditions of her bridging visa and had complied with the conditions of previous visas.

27. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

28. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

29. There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.

30. 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.

31. 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

32. 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.

    Penelope Hunter
    Member