BRAR (Migration)

[2019] AATA 540

BRAR (Migration) [2019] AATA 540 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MANPREET SINGH BRAR

CASE NUMBER:  1708586

HOME AFFAIRS REFERENCE(S):           BCC2017/875051

MEMBERS:Bridget Cullen (Presiding)

Roger Maguire

DATE:18 February 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.500.211 of Schedule 2 to the Regulations; and

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 18 February 2019 at 12:45pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – previous 457 visa sponsorship offer – job offer on return to India – plans to establish own business – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 7 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 6 March 2017. 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 found that the applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 7 February 2019 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by his registered migration agent, who attended the hearing with him.

6. The applicant provided the Tribunal with a copy of the delegate's decision record dated 7 April 2017. The Tribunal also had access to the relevant file of the Department of Home Affairs, and acknowledges the submissions and information filed in the Tribunal by the applicant.

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.

9. The Tribunal is satisfied that the applicant meets cl.500.211, on the basis of the Confirmation of Enrolment certificate he has provided the Tribunal for his proposed Diploma of Business course. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily, so as to satisfy the requirements of cl.500.212.

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

10. 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?

1. 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.

2. 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.

3. The applicant addressed the Tribunal, and gave evidence in relation to his studies in Australia, and career plans on return to his home country, India.  The applicant first arrived in Australia on 8 October 2014.

4. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of his enrolment records from the Provider Registration International Student Management System (PRISM) database. For completeness, the Tribunal provided the applicant with a copy of his PRISM enrolment records. The Tribunal explained to the applicant what the PRISMs database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of it relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal invited the applicant to comment on or respond to the information and advised the applicant that he may seek additional time to comment on or respond to the information. The applicant elected to respond at the hearing.

5. The PRISMs records reflect that the applicant has completed a Certificate IV in Commercial Cookery, followed by a Diploma of Hospitality Management, and now seeks to complete an Advanced Diploma in Business.  Material before the Tribunal reveals that the applicant obtained a Bachelor of Arts degree at the Panjab University in India, prior to coming to Australia to study.

   Applicant’s circumstances in Australia

6. For the past two and a half years, the applicant has been working as a cook at the Quroctic Indian Restaurant, where he earns an average of about $400 per week. The applicant told the Tribunal that the Quroctic Indian Restaurant has previously offered to sponsor him for a 457 visa, as has the proprietor of another restaurant, Food Pundits. The applicant declined these offers, because of his stated desire to return to India to live and work after he has completed the Advanced Diploma in Business in which he is presently enrolled. The applicant has no family living in Australia, or other significant ties to Australia.

   Applicant’s circumstances in home country

7. The applicant maintains contact with his family in India, and recently visited his ailing father who suffers a heart condition.  This recent trip was the second time the applicant has returned to India since coming to Australia in 2014.  The applicant told the Tribunal that in his line of work, he could earn more money in India than he can in Australia, and that the Indian economy is booming. The applicant unequivocally stated that it was his intention to return to India at the conclusion of his current enrolment in the Advanced Diploma in Business.

   Applicant’s potential circumstances in Australia

8. The applicant has no family or other ties which might cause him to wish to remain in Australia. The Tribunal accepts the applicant’s evidence that he has been offered sponsorship under the former 457 visa program, and considers that, if he sought to remain in Australia on a more permanent basis, he would have pursued these offers further.

9. The Tribunal finds that the applicant’s enrolment in an Advanced Diploma of Business is  consistent with his original stated intention to study business in Australia, albeit at a lower level than he originally planned. Accepting the difficulties the applicant had with University level English, his pursuit of a business qualification at the Advanced Diploma level is reasonable. 

   Value of the course to the applicant’s future

10. Whilst in India, the applicant explored work opportunities, and was told by the proprietor of a restaurant called Nav Pizza Corner, that he would be offered employment following his completion of the Advanced Diploma of Business. The applicant has provided the Tribunal with a letter from Nav Pizza Corner, confirming the offer of employment to him on his return to India. 

11. The applicant told the Tribunal that he intends to accept this offer on his return to India, following which he plans to open his own business. The applicant explained that while he is already qualified to cook, he needs to acquire business skills in order to manage and then run his own restaurant.  He says that completion of the Advanced Diploma in Business will enhance his employability and prospects of establishing a successful business in the fullness of time. 

12. The applicant indicated that, although he first arrived in Australia in October 2014, he has been unable to fulfil all of his academic plans. The Tribunal asked the applicant to explain the reasons for this lack of progress, and to explain the cancelled Confirmation of Enrolment Certificates that appear on his PRISMs records. The Tribunal accepts the applicant’s evidence that he struggled with the English requirements of his initial course at Griffith University, and decided to transition to cookery studies.  Further, the Tribunal accepts the applicant’s evidence that his progress has been delayed by the deregistration of his then education provider, the Australian Institute of Technology and Management. The applicant told the Tribunal that he is now making successful progress with his current educational provider, and that he is confident he will be able to successfully complete the Advanced Diploma of Business before he returns to India.

13. The Tribunal found the applicant to be a credible witness, who responded to questions in a straightforward way.  He was able to explain the reasons he had been unable to complete all of his intended studies, and was further able to explain the reasons that his line of study would be beneficial on his return to India. In particular, the Tribunal accepts that the applicant genuinely intends to return to India upon completion of his Advanced Diploma in Business.

14. 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).

15. 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.

16. 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

1. 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.500.211 of Schedule 2 to the Regulations; and

• cl.500.212 of Schedule 2 to the Regulations.

Bridget Cullen

Member

Roger Maguire

Member