Brar (Migration)

[2020] AATA 2735

Brar (Migration) [2020] AATA 2735 (20 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harjivan Singh Brar

CASE NUMBER:  1827932

HOME AFFAIRS REFERENCE(S):          BCC2018/3009405

MEMBER:Vanessa Plain

DATE:20 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl.500.212(a) of Schedule 2 to the Regulations

Statement made on 20 April 2020 at 10:02am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – genuine student – application one year after arrival in Australia – incorrect calculation by Department – academic progress – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
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 Home Affairs to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 10 August 2018. The delegate refused to grant the visa on 12 September 2018.

2. The delegate made the decision on the basis of unfavourable information before the delegate.  The Delegate formed the view that the applicant was not a genuine temporary entrant because he allegedly applied for a student visa 1 year and 4 months after being in Australia on a tourist (FA600) visa and on that basis, the Delegate was not satisfied it was the true intention of the applicant to study a Diploma in Leadership and Management and an Advanced Diploma of Leadership and Management.

3. The applicant had not been Australia on a tourist visa for 1 year and 4 months before applying for his student visa.  The Delegate’s decision record discloses that the applicant arrived in Australia on 6 July 2019 on a tourist visa and applied for a student visa approximately 1 month later on 10 August 2018.  Therefore, the Delegate’s basis for forming the view that the applicant was not a genuine applicant due to the time he’d spent in Australia before applying for a tourist visa was misconceived.

4. The applicant appeared before the Tribunal on 16 April 2020 to give evidence and present arguments.  The applicant produced evidence to the Tribunal demonstrating that he has successfully undertaken and completed the Diploma of Leadership and is currently studying an Advanced Diploma of Business.  The Tribunal is satisfied that the applicant is doing precisely what a diligent student should do, he is attending classes and progressing academically.  The Tribunal also had regard to an extensive response submitted by the applicant, addressing the GTE criterion and is satisfied on the basis of that material, that the applicant is a genuine temporary entrant to Australia for the purpose of being a student.   

5. In light of the above matters, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   DECISION

6. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

   ·cl.500.212(a) of Schedule 2 to the Regulations

   Vanessa Plain
   Member