BANI (Migration)

[2018] AATA 4561

BANI (Migration) [2018] AATA 4561 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SUNIL RAM BANI

CASE NUMBER:  1708354

HOME AFFAIRS REFERENCE(S):           BCC2016/3417535

MEMBER:M. Edgoose

DATE:28 August 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 28 August 2018 at 3:54pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine applicant for entry and stay as a student – genuine intention to complete studies – close family ties in home country – maintained a focused approach towards studies – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 29 March 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 14 October 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. On 29 May 2018 the applicant was invited under s.359(2) of the Act to provide information about his proposed course of study and his entry to stay in Australia as a student. The applicant was informed that if the Tribunal did not receive the information by 12 June 2018, that the Tribunal may make a decision on the review without taking any further action to obtain the information.

5. The applicant responded to the “Request for Student Visa Information under s.359(2) of the Migration Act 1958” on 7 June 2018 (AAT Folio 15-19) and informed the Tribunal that he did not consent to the Tribunal deciding the review without a hearing.

6. The applicant appeared before the Tribunal on 22 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 whether the applicant intends genuinely to stay in Australia temporarily.

9. 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?

10. 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.

11. 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.

    Background and applicant’s immigration history

12. The applicant is from India and arrived in Australia on 3 May 2009 on a 572 student visa and was enrolled to complete a Certificate III in Hospitality. The applicant has completed all courses since arriving in Australia except an Advanced Diploma of Management between Feb 2016 and Aug 2016. The applicant stated to the Tribunal the reason for not completing the Advanced Diploma of Management was due to the education provider not providing passes within the particular course. The Tribunal accepts the applicant’s evidence.

13. The applicant applied for the visa on 14 December 2016 and the delegate refused to grant the visa on 29 March 2017 on the basis that the ‘Genuine Temporary’ entrant criterion, or GTE criterion which applies to every student visa, was not met.

14. The applicant informed the Tribunal that before coming to Australia he had completed his secondary schooling in 2005 and a Diploma in Electronics and Communication Engineering between 2005 and 2008. The applicant told the Tribunal that he had worked for Delta Electronics as a Technician between January 2008 and July 2008 and was paid AUD $600 per month. The applicant had also worked for B.S.N.L as a tester between July 2008 and April 2009 and was paid AUD $800 per month before coming to Australia. The Tribunal accepts the applicant’s evidence.

15. At hearing the applicant confirmed the information he had submitted to the Tribunal under the “Request for Student Visa Information under s.359(2) of the Migration Act 1958” when answering question 6 to be an accurate account of his completed courses since arriving in Australia on 3 May 2009.

    a.Certificate III  in Hospitality completed between May 2009 and September 2012

    b.Diploma in Hospitality completed between May 2009 and September 2012

    c.Diploma of Management in Hospitality completed between January 2013 and August 2014

    d.Advanced Diploma of Hospitality completed between October 2014 and December 2015

    e.Certificate IV in Commercial Cookery completed between October 2016 and July 2017

    The Tribunal accepts the applicant’s evidence that he has maintained enrolment and completed a range of courses in the field and that he has progressed academically since arriving in Australia in May 2009.

16. At hearing the applicant submitted a Confirmation of Enrolment for a Diploma of Business (AAT Folio 52) through Barkly International College which commenced on 17 August and the course will be completed by 30 January 2019. The applicant stated at the hearing that when he completes his current course on 30 January 2019 he will depart Australia and return to India. The Tribunal accepts that the applicant will depart Australia at the completion of his current course of study and return to India on 30 January 2019 where the applicant will put his future career plans in the hospitality industry into action.

17. The applicant informed the Tribunal that he has departed Australia on two occasions since arriving in 2009. The most recent was in 2013 when he returned to India for a period of one month to visit family and friends. The only other occasion the applicant has departed Australia was in 2011 for a period of three months. The applicant stated to the Tribunal that Australia is the only country he has visited outside of India and that he has complied with the migration laws and circumstances of non-compliance during his time in Australia.

    The applicant’s circumstances in their home country

18. The applicant stated to the Tribunal that he has his parents and brother living back in India. The applicant informed the Tribunal that his father is a businessman, his mother is a housewife and owns some properties and that his brother works for an information technology company. The applicant told the Tribunal that he contacts his parents and brother on a daily basis through the social media applications Skype and WhatsApp. The Tribunal acknowledges that the applicant has maintained regular contact with his family through various means of communication while living in Australia.

19. The applicant said to the Tribunal that he had not completed his studies back in India because the standard of education and the delivery of courses in Australia are of a much higher standard compared to those available in India. The Tribunal accepted the applicant’s response.

    The applicant’s potential circumstances in Australia

20. The applicant was able to inform the Tribunal that the Diploma of Business course is about managing business document design and development, how to develop and run a business, the risk of running a business and risk management. The applicant told the Tribunal that after the completion of this course on 30 January 2019 he will move back to India to take up a job offer at Harish Vegetarian and will open up his own hospitality and catering business. The Tribunal accepts the applicant’s consistent response that he will depart Australia after the completion of his current course of study and will return to India to take up the job offer at Harish Vegetarian.

21. The applicant informed the Tribunal that he currently works 20 hours part time per week at Kettle Back Trust as a chef and is paid AUD $37 per hour. The applicant currently lives in the CBD of Melbourne in rented accommodation with friends and contributes AUD $580 per month towards the rent. The Tribunal acknowledges the applicant’s current part-time job as a chef is in-line with his future plans back in India where he has a job offer with Harish Vegetarian as a Head Chef (AAT Folio 53).

22. The Tribunal acknowledges the submission titled “Letter Explaining Genuine Temporary Entrant” by the applicant dated 16 August 2018 (AAT Folio 54 – 56b) that clearly states the applicant’s intention is to depart Australia and return home with an international qualification so that he can take care of his parents back in India and grab the opportunities available to him for a better future and earn a better living. Although the applicant did not state his intended departure within his GTE statement to the Tribunal, the applicant did state on a number of occasions throughout the hearing that he will depart Australia after the completion of his current course on 30 January 2019 and will not seek further enrolments.

    Value of the course to the applicant’s future      

23. In his oral testimony to the Tribunal the applicant asserted on a number of occasions that his current course of study, the Diploma of Business, will provide him with the final qualifications, skills and knowledge required for him to pursue his hospitality and catering career back in India.  The applicant has a job offer at Harish Vegetarian as head chef and will also start up his own hospitality and catering business in the near future. The applicant said that the current course will equip him with the knowledge and qualifications to run his own business when he returns to India after the completion of his current course. The Tribunal accepts the applicant’s explanation and passion for the hospitality field and that his current course of study is relevant to his future career plans back in India.

24. The Tribunal notes that the applicant has maintained a focused approach towards his studies since arriving in Australia and that his plan for the future is clear and that at the completion of his current course he intends genuinely to depart Australia and return to India to start work at Harish Vegetarian and to open up his own catering and hospitality business.

25. The applicant asserted on a number of occasions to the Tribunal that he would really like to complete his current course on 30 January 2019 and would then depart Australia and return to India to begin working in the hospitality field. The Tribunal accepts the applicant’s consistent response and that he will depart Australia at the completion of his current course on 30 January 2019.

26. 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).

27. 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.

28. 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

29. 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