EKANAYAKE MUDIYANSELAGE (Migration)

[2018] AATA 1390

EKANAYAKE MUDIYANSELAGE (Migration) [2018] AATA 1390 (10 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kalana Bimsara Ekanayake EKANAYAKE MUDIYANSELAGE

CASE NUMBER:  1618278

DIBP REFERENCE(S):  BCC2015/2688658

MEMBER:M. Edgoose

DATE:10 April 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 573 Higher Education Sector visa:

·cl.573.326(aa) of Schedule 2 to the Regulations.

Statement made on 10 April 2018 at 2:50pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) visa – Application for a dependent visa – Applicant currently on a Bridging Visa C – Gap in study – Car accident – Mental health issues – Breach of working rights – Wife currently studying – Intending to return home after completion of studies – Promising career prospects

LEGISLATION
Migration Act 1958 ss 65, 499

Migration Regulations 1994 Schedule 1 Item 1222 Schedule 2 cl.573.326 Schedule 8 Conditions 8202, 8516

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 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 September 2015. The delegate decided to refuse to grant the visa on 14 October 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.326 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant did not meet the criteria for a Student (Class TU) Subclass 573 Higher Education Sector Visa.

4. The applicant appeared before the Tribunal on 19 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an accredited interpreter in the Sinhala and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets at the time of decision the criterion in cl.573.326. Clause 573.326(aa) relevantly states:

   (1)     The Minister is satisfied that:

   (aa)      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

   (a)      the applicant is a genuine applicant for entry and stay as a member of the family unit of the primary person mentioned in clause 573.322; and

   (b)      that primary person has adequate means to support himself or herself and the members of his or her family unit during the period of the applicant’s intended stay in Australia; and

   (c)      on the basis of the applicant’s stated intention, the applicant intends to comply with any conditions subject to which the visa is granted; and

   (d)      if the applicant is required to give evidence in accordance with Schedule 5B — while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in that Schedule.

8. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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 to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. The applicant is from Sri Lanka and first arrived in Australia on 5 August 2012 on a 573 Visa.  

11. Before coming to Australia the applicant had completed high school and started an accounting degree which he did not finish.

12. The applicant stated to the Tribunal that his mother and one sister live back in Sri Lanka and that his second sister lives in Italy. The applicant told the Tribunal that he maintains regular contact with family back in Sri Lanka via telephone. Before coming to Australia he had not worked. The applicant informed the Tribunal that his father was a police officer and passed away when the applicant was seven years of age. His mother worked as a nurse and currently lives off her and her late husband’s pension. The Tribunal notes that a copy of the death certificate was submitted (AAT Folio 35).

13. The Tribunal asked the applicant why he had applied for a dependent visa and not a student visa. The applicant did not directly answer the question but responded by saying that he had been suffering from depression and a range of mental health issues since November 2012 shortly after arriving in Australia.

14. The applicant stated to the Tribunal that the mental health issues and depression he been suffering since arriving in Australia was as a result of flashbacks to the passing of his father when he was seven years of age. The Tribunal notes that the applicant is now 29 years of age.

15. The applicant informed the Tribunal that in June 2013 he returned to Sri Lanka for a period of 24 days as his mother was suffering from heart problems. At the end of June 2013 he returned to Australia to start his Diploma of Commerce at ACU University. The Tribunal notes that the applicant did not complete his Diploma of Commerce and withdrew his enrolment.

16. The applicant told the Tribunal that he again returned to Sri Lanka in February 2014 for a period of one and a half months to visit his mother.

17. The applicant returned to Australia in March 2014 where he started studying a Bachelor of Business at Holmes College (AAT Folio44) and in May 2014 his enrolment was cancelled.

18. The applicant in oral evidence to the Tribunal stated that since May 2014 he has not studied. The Tribunal is concerned that the applicant has not completed any of his studies that he has been enrolled in since arriving in Australia in August 2012.

19. The Tribunal notes that between May 2014 and September 2015 the applicant did not study and as a result was in breach of 8202 and 8516 of his student visa. The applicant admitted to the Tribunal that he was in breach of conditions 8202 and 8516 of his student visa.

20. The applicant stated to the Tribunal that between June 2015 and March 2018 he had not completed any form of study but had continued with regular counselling sessions. The applicant stated to the Tribunal that from May 2014 he continued to receive counselling and was concerned about his mum’s ongoing health problems back into Sri Lanka.

21. The applicant said to the Tribunal that in April 2013 and 2014 he had two car accidents due to loss of concentration while driving and as a result had suffered financial stress due to not being insured.

22. The applicant informed the Tribunal that he married his wife in June 2015 who he had met back in Sri Lanka in 2012. The Tribunal notes that the applicant’s wife is the primary visa holder.

23. The Tribunal asked the applicant what is their joint plan for the future. The applicant responded that their plan is for his wife to finish her degree and then to return to Sri Lanka to his mother and his wife’s parents where they might start a family. The applicant stated that he now plans to study when they return to Sri Lanka. The Tribunal observes that no further detail about their joint future plan was offered to the Tribunal.

24. The applicant stated to the Tribunal that his wife is currently studying a Bachelor of Commerce at Deakin University and that she will finish her course in 2019. The Tribunal notes that the applicant’s wife’s COE is due to expire on 30 June 2018 (AAT Folio 70).

25. The applicant told the Tribunal that the value of the current course his wife is studying will allow her to gain a corporate type of job when they return to Sri Lanka. The Tribunal notes that no further details were offered to the Tribunal about the value of this course.

26. The applicant told the Tribunal that he currently rents a house in Chadstone with his wife and a friend and pays $360 per month. The applicant informed the Tribunal that he currently does not work but had worked part-time as a cleaner and for Domino’s pizza in the past.

27. The applicant informed the Tribunal that he has no issues of concern back in Sri Lanka.

28. The Tribunal notes that the applicant is currently on a Bridging Visa C and does not allow the applicant to return to Australia if he leaves.

29. The Tribunal asked the applicant if he or his wife intend to apply for a further visa after she completes her current course of study. The applicant responded no and that both he and his wife will depart Australia after his wife completes her current course and will return to Sri Lanka. The Tribunal accepted the applicant’s response.

30. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl. 573.326(aa).

31. As the Tribunal has found the applicant meets the requirement of cl.573.326(aa), it will remit the matter to the delegate for reconsideration.

    DECISION

32. 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 573 Higher Education Sector visa:

    ·cl.573.326(aa) of Schedule 2 to the Regulations.

    M. Edgoose
    Member