Chopra (Migration)

[2019] AATA 1465

Chopra (Migration) [2019] AATA 1465 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Shabnam Chopra

CASE NUMBER:  1722731

DIBP REFERENCE(S):  BCC2017/1779003

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          26 March 2019 at 12:23 pm (VIC time)

DATE OF WRITTEN RECORD:                30 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decisions under review with the direction that the Applicant meets the criteria contained in clause 500.212 of Sch. 2 of the Migration Regulations 1994 (Cth).

Statement made on 30 April 2019 at 1:25pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – unable to complete Masters degree as originally intended – affected by relationship problems – domestic abuse – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 21 September 2017 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 26 March 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant is a citizen of India. She seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 September 2017 refusing the grant the applicant a student temporary visa under section 65 of the Migration Act. She applied for the visa on 18 May 2017.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of schedule 2 of the Migration Regulations, namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided by the applicant to the tribunal with the review application. The applicant appeared before the tribunal today to give evidence and to present arguments. She was assisted in relation to the hearing by her registered migration agent. The tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The criteria for a subclass 500 student visa are set out in part 500 of schedule 2 of the Regulations. The primary criteria in clauses 500.211 to 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. Whether an applicant satisfies the criteria is to be determined at the time the tribunal’s decision was made. In this case there is only one applicant. The issue in this case is whether the applicant satisfies the criteria in clause 500.212. Clause 500.212 of the Regulation states that the applicant will be a genuine applicant to for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily and because the applicant intends to comply with any visa conditions and because of any other relevant matter.

6. In relation to the question of whether the applicant intends genuinely to stay in Australia temporarily the regulations oblige the tribunal to have regard to the applicant’s circumstances, their immigration history and if they are a minor, the intentions of any parent, legal guardian or spouse is relevant and any other relevant matter. The tribunal notes in this case the applicant is not a minor which means only her intentions are relevant. In relation to the question of whether the applicant intends to comply with any visa conditions the regulations oblige the tribunal to have regard to the applicant’s history of compliance with the conditions of previous visas granted as well as the applicant’s stated intention to comply with any conditions to which the visa to be issued may be subject.

7. The tribunal must also have regard to Direction No. 69 issued by the Minister for Immigration and Border Protection on 1 July 2016. Direction No. 69 is entitled ‘Assessing the genuine temporary entrant criteria for a student visa and student guardian visa applications’. It obliges the tribunal to consider several factors before reaching a decision on any student visa application and, in short, these factors elaborate upon the regulatory criteria in relation to the applicant’s circumstances in their home country, their potential circumstances in Australia, the value of the applicant’s proposed course of study, the applicant’s immigration history and a range of other factors.

8. The tribunal has considered all of these factors in relation to the case now on review. This is the applicant’s second student visa application. Her original arrival date in Australia was 31 December 2014. She had just days earlier been granted a student visa on 22 December 2014. That original student visa was set to expire on 23 May 2017. The original purpose of that visa was to study a Masters of Technology and Software Engineering in ATMC College, a college which was affiliated with Federation University. She had, as she stated in evidence before the tribunal, already completed a Bachelor of Computer Application back in her home country which took three years to complete. The tribunal reviewed her academic transcript in that regard and it appears that she completed that over a three-year period satisfactorily.

9. She explained the reason for coming to Australia and studying the Masters course was that the Australian education system is much more practical. She also stated that when she arrived in Australia the first thing that she had to do was a Certificate IV in English at ATMC.  She completed that and the tribunal received documentary evidence of her completion of it. In relation to her commencement of the Masters course, that became slightly problematic. Although she did pass some of the subjects it appears that she failed a number of those subjects and ultimately she did not complete that course. It was said to be a two-year course. The applicant explained she did not complete the course due to her being sick at various times. She also had to move house and her attempts to be readmitted to the course when she was excluded were met with rejection by the ATMC administration staff.

10. She also gave evidence which was corroborated by external emails sent via her migration agent that she made attempts to enrol in other equivalent Masters courses but for various reasons she was not accepted into those courses. She also gave evidence that in 2016 she went to see her mother and she got chicken pox and was incapacitated for several days and that appears to have been the ultimate cause which led to her exclusion from the original Masters Course. She stated that they were not letting her be re-enrolled and that is when she tried to enrol in several other courses. Eventually she applied for and was accepted into an MBA in Professional Accounting.

11. She said that she wanted to study but the doors were often closed. She was emphatic throughout the hearing that she has always been a good student and wants to excel academically. On the whole, the tribunal takes the view that her evidence was genuinely consistent and credible. In the course of the hearing it became evident that the applicant had suffered significant personal problems in relation to her relationship with her husband in 2015 and 2016. It appears she suffered domestic abuse at the hands of her husband on a number of occasions, that she was assaulted on at least two occasions and that this has apparently caused a lot of problems in relation to her continuing to study and study success. Ultimately the tribunal accepts that this is likely to have had a significant impact on her academic performance which explains why she has not completed a Masters degree as originally intended. 

12. The tribunal accepts that such problems in life are extremely stressful and are likely to have a impact negatively on other parts of her life including her academic performance. The applicant has indicated that she has now left her husband and has been in a relationship to her satisfaction with another gentleman from the Ukraine. She also indicated and gave evidence that he is an American citizen. She also indicated that he has permanent residence here and that her plans appear to be that she would rather stay ion a long term basis if she gets a partner visa but she has also contemplated that that might not happen and, in fact, the migration agent indicated that it has been initially refused and it may be that she ends up in America as a partner there or perhaps even in the Ukraine. She has indicated and the tribunal accepts that she will follow her current partner wherever he may end up.

13. Ultimately the tribunal is satisfied in this rather complicated factual case that the applicant does genuinely intend to stay temporarily in Australia as a student. The tribunal has given consideration to all of the matters that were raised in the original delegate’s decision. The tribunal has given consideration to all of the evidence that has been presented, and the evidence as it may apply to Direction No. 69. For all of the reasons articulated, on balance the tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia as a student. The tribunal remits the application for a student temporary class TU visa for reconsideration with the direction that the applicant meets clause 500.212 criteria of schedule 2 to the Regulations.

    DECISION

14. The Tribunal remits the decisions under review with the direction that the reconsideration with the direction that the applicant meets the criteria contained in clause 500.212 of schedule 2 to the Regulations.

    Dr Jason Harkess
    Member