Grover (Migration)

[2018] AATA 5430

Grover (Migration) [2018] AATA 5430 (5 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ajay Grover

CASE NUMBER:  1701752

DIBP REFERENCE(S):  BCC2017/30552

MEMBER:P. Wood

DATE:5 November 2018

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 590 visa:

·cl.590.212(3) of Schedule 2 to the Regulations

Statement made on 5 November 2018 at 1:21pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 590 (Guardian) – genuine intention to reside with nominating student – change in guardianship responsibilities – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 590.212

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 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 4 January 2017. The delegate refused to grant the visa on 14 February 2017.

3. In order to meet regulation 590.212(3) the nominating student cannot intend to reside in Australia with the holder of a subclass 580 or 590 visa, or a parent, other than the applicant (in this case, her father).

4. In this case the delegate concluded that the nominating student, the applicant’s teenage daughter, must intend to reside in Australia with her mother as her mother is already in Australia on a student guardian visa. No further reasons are contained in the delegate’s decision.

5. The applicant’s wife, the nominating student’s mother, has provided a written statement to clarify that it is not her intention, or the intention of the applicant, that there would be dual guardians of their daughter in Australia.

6. In her written statement, the nominating student’s mother makes clear that she intends to return to India to care for her 75-year-old mother-in-law who suffers from a heart condition, upon the applicant taking over as the student guardian in Australia.

7. This is not a particularly complex or unusual occurrence. It must be contemplated that from time to time parents and other student guardians may need to substitute guardianship responsibilities. The Tribunal considers that the correct and preferable decision is to allow a change of student guardian in such circumstances.

8. As the nominating student’s mother has declared her intention to depart Australia, the Tribunal accepts that the nominating student does not intend to reside in Australia with the holder of a subclass 580 or 590 visa, or a parent, other than the applicant.

9. In light of the clarifying material provided, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   DECISION

10. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 590 visa:

    ·cl.590.212(3) of Schedule 2 to the Regulations

    P. Wood
    Senior Member