Bharti (Migration)

[2019] AATA 486

Bharti (Migration) [2019] AATA 486 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms BHARTI XXXX

CASE NUMBER:  1619324

HOME AFFAIRS REFERENCE(S):           BCC2016/2878265

MEMBER:Meredith Jackson

DATE:31 January 2019

PLACE OF DECISION:  Brisbane

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 31 January 2019 at 11:14am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant criteria – failure to study course associated with visa – completed other diploma courses – change in career path – visible study path and career plan – studying since High School in Australia – strong family ties in India – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA, 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 31 October 2016 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 30 August 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 intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 12 September 2018 to give evidence and present arguments. 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 applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends genuinely to stay temporarily in Australia.

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

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. At the hearing, the Tribunal, under section 359AA of the Act, referred the applicant to information about her held in the Provider Registration and International Student Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision.

11. The Tribunal outlined the information in the database, which captures a chronological record of the applicant’s academic history in Australia: her enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and the applicant was invited to comment on it. The Tribunal asked the applicant if she wished to seek further time to consider it. The applicant said she was prepared to comment on the information immediately after it was read to her and said she understood it and why it was relevant to her case.

12. The applicant told the Tribunal she was 18 years of age when she came to Australia and had recently graduated from high school and her parents had encouraged her to study a business degree in Australia.

13. The Tribunal said the applicant had come to Australia on a Student visa issued for the higher education sector with the intent of studying in a Bachelor of Business, but had not done so. The applicant by way of response said she had found the course difficult. She realised that she had chosen the wrong study path. She felt that given she had finished 12^th grade in a medical stream, business study was very different, and difficult for her. She had spoken to the University but felt she did not get sufficient support from the course leader and she subsequently withdrew from her enrolments.

14. The applicant enrolled in and completed a Diploma of Business and Advanced Diploma of Business before enrolling again in a Bachelor of Business in 2016. She claimed she again found the course difficult and told the Tribunal that she had sought advice from her friends about what to do.

15. On questioning by the Tribunal, the applicant claimed to have been unaware that by not studying the course for which she was granted the visa, she might have breached of her visa conditions.

16. The applicant did not complete either the academic English course or Bachelor of Business in which she was enrolled. The applicant’s migration agent submitted that her education provider had cancelled her courses when her visa was refused and stated that as she was viewed as a non-genuine student, she was unlikely to get a further enrolment with them.

17. After appealing the decision to the Tribunal the applicant sought enrolment in the vocational sector in commercial cookery for which she holds a current Certificate of Enrolment (COE). The Tribunal observed that this new academic direction was unrelated to her original intent, which was to study business.

18. The applicant said her reasons for the change in study direction arose from working at Nando’s restaurant, where she had worked for three years and where she realised she loved cooking and the restaurant business. She was inspired by her employer to study hospitality ad enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management, which courses she intends to complete by April 2021. She gave evidence she would then go back to India to start her own restaurant or get a good job in hospitality, perhaps in a five-star hotel in Mumbai. She felt that with hospitality qualifications and her Diplomas of Business she was well positioned to be employed in India.

19. The Tribunal raised it might have a concern that the applicant had been in Australia since 2013 and came here to do a Bachelor of Business but having changed direction she intended taking until 2021 to complete her studies in the less demanding field of hospitality, and this might mean she was simply trying to extend her stay here.

20. The applicant said she did not want to stay in Australia; she wanted to go back to India where her father had a plan for her, which involved either opening a restaurant or helping her seek a job in Mumbai in hospitality.

21. The Tribunal asked the applicant if she had understood the discussion about her academic record to date, and she stated she understood it and its relevance to the Tribunal’s decision.

22. The Tribunal questioned the applicant about other aspects of her circumstances as set out in Direction 69.

23. In terms of circumstances encouraging her to stay here, the applicant said she had only a first cousin in Australia from whom she was estranged and she missed her family in India a great deal.

24. The Tribunal said in relation to her study record, it had a concern that the applicant had not seriously attempted to complete a Bachelor of Business, and given that she had successfully completed diploma-level business study, asked whether she had sought credit for her previous studies towards a degree. The applicant said she had not done so because she did not want to continue business study.

25. The Tribunal said it could also be concerned that the applicant had chosen her hospitality courses because they were less demanding, shorter and less expensive than a degree but allowed her to stay in Australia. The applicant responded that she just wanted to finish her hospitality studies and go back to India and that she had the support of her father in this.

26. After the Hearing the applicant submitted a Statutory Declaration to the Tribunal in which she reiterated that she intended to go back to India after completing her studies. She stated she was eager to rejoin her family, and had changed course direction because she was not interested in a business degree, which had been more her family’s interest than her own.

    Conclusion

27. The Tribunal has weighed all the applicant’s circumstances against Direction 69 and finds the applicant’s evidence, on balance, credible for a young person who has been studying in Australia since leaving school and who is now committed to a new direction at age 24. The Tribunal considers it not unreasonable that a relatively young person in such circumstances might fall short of their parents’ expectations, develop their own ideas over time and want to switch course direction to something they enjoyed more.

28. The Tribunal is not persuaded by the submission at Hearing of the applicant’s migration agent that the education provider at the time of the visa decision in excluding the student on the basis of her visa refusal, stated she was unlikely to get a new COE because she had been found not to be a genuine student. There is no evidence before the Tribunal to corroborate this assertion, and the Tribunal is also aware that the Bridging visa the applicant was granted allowed her to study.

29. The Tribunal is prepared to accept, however, that the applicant did find herself out of her depth in a business degree-level course and that she formed a view, possibly on poor advice, that she would not be successful in gaining a degree. The Tribunal is encouraged by the fact that, rather than give up on business altogether, the applicant made a credible attempt at the diploma and advanced diploma level and completed three qualifications in the stream plus an English qualification.

30. The Tribunal finds reasonable the idea of a young person changing study direction from a business-related discipline to something more enjoyable and achievable, and that the idea of studying cookery came from working in a family restaurant chain in Australia, where she had become an assistant manager. The Tribunal, in looking at her overall progression, notes this is the applicant’s first major new direction in her study plan, and considers the applicant should be permitted to pursue a new academic course of action which she considers she can succeed in. The Tribunal is encouraged that the applicant is able, despite her academic failures, to now articulate a plan for her future, which is to complete her hospitality and cookery studies and return to India where all her immediate family live and where there are credible roles to be had in hospitality.

31. The Tribunal understands that the applicant may not, on her record, stick with her studies but is satisfied that the applicant is now genuinely embarked on a viable study path and sees herself as a genuine student and genuine temporary entrant. The Tribunal notes she is supported by her family in India, that her family are invested in her future and she has reasons to return home to be with them.

32. 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).

33. 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.

34. 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

35. 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.

    Meredith Jackson
    Member