Kattel (Migration)

[2022] AATA 2722

Kattel (Migration) [2022] AATA 2722 (1 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kasturba Kattel
Mr Roshan Bista

REPRESENTATIVE:  Mr Komal Khatiwada (MARN: 0853554)

CASE NUMBER:  2116175

HOME AFFAIRS REFERENCE(S):          BCC2021/1186705

MEMBER:Vanessa Plain

DATE:1 July 2022

PLACE OF DECISION:  Melbourne

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

·cl 500.212 of Schedule 2 to the Regulations

The Tribunal remits the applications for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 500 visa:

·cl 500.311 of Schedule 2 to the Regulations

Statement made on 01 July 2022 at 11:43am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– value of the course to the applicant’s future – positive study progress – reason for change in study and career pathway has been reasonably explained – applicant has reasonably demonstrated the value of the course to her future to an extent that outweighs the current cost of completing the course – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 500.212, 500.311

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 applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 3 June 2021. The delegate refused to grant the visas on 22 October 2021.

2. The delegate made the decision, in whole or substantial part, on the basis that evidence of:

   ·Financial circumstances in home country

   ·A GTE statement

   ·Knowledge of the course contents, education provider and educational objectives

   ·The benefit to the applicant’s career by undertaking the proposed courses

   ·An explanation as to why the applicant has chosen to undertake the proposed courses

   ·An explanation as to why an Australian qualification would assist her in achieving her career goals by comparison to a qualification that could be obtained in the applicant’s home country 

   ·An explanation as to expected future remuneration utilising the qualifications   

   was not provided as required to satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a subclass 500 student visa.

3. The delegate’s decision record reveals that the applicant is a married Nepalese woman who arrived in Australia on 21 October 2018 utilizing an initial Student Visa.  The delegate held concerns that the applicant’s primary motivation in applying for a Student visa was to secure ongoing residence in Australia, rather than due to a genuine desire to undertake the course of study.  The delegate was not satisfied that the applicant had sufficiently explained her reasons for her change in career pathway, nor were they satisfied that the applicant was a genuine student on the basis of the lack of evidence as set out above.       

4. The applicant appeared before the Tribunal on 15 June 2022 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Nepalese languages.

6. The applicant was assisted in relation to the review by their registered migration agent.

7. In advance of the hearing, the Tribunal received the following documents:

   • COEs for a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management.

   ·    GTE statement

   ·    Response to request for student visa information (s 359(2) of the Act)

   ·    A suite of academic documents evidencing course attendance, grade attainment and course completion 

   ·    Property valuation documents

   ·    Payslips

   ·    Legal submissions

8. At the hearing, the applicant informed the Tribunal that she changed her course direction from IT studies to hospitality studies because she realised early in her studies that she did not like the subject matter of the IT course.  For this reason, she changed directions and since doing so has done well at school.  She is working in a kitchen as part of her course placement and wants to finish her course and return home.     

9. The Tribunal finds that the applicant is not utilising the student migration program to obtain long term residency.  Although the Tribunal notes that the applicant has changed her course direction from IT to hospitality, the evidence before the Tribunal clearly establishes that the applicant has, since changing her course direction, attended class and progressed academically.  The documents produced demonstrate that she has a thorough understanding of her course, course provider and educational objectives and has obtained good academic marks in her subjects.  The Tribunal places weights on these factors as being indicative of the applicant being a genuine student. 

10. The Tribunal places further weight upon the documents produced by the applicant in advance of the hearing which plainly establish that the applicant has researched study options in her home country, has researched the job market in her home country and has articulated the benefit to her future career which arises out of completion of her current courses.  She has modest financial ties to her home country in the form of real estate.   These are strong indicators of a genuine student who intends genuinely to stay in Australia temporarily for the purposes of study. 

11. The Tribunal further finds that the applicant has reasonably demonstrated the value of the course to her future to an extent that outweighs the current cost of completing the course.  It is further satisfied that the applicant is aware of her visa conditions and does not have an adverse immigration history in Australia.     

12. The applicants were married in 2015.  On that basis, the secondary applicant meets cl 500.311 of the Regulations.

13. In light of the new evidence received and the findings set out above, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

    DECISION

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

    ·cl.500.212 of Schedule 2 to the Regulations

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

    ·cl.500.311 of Schedule 2 to the Regulations

    Vanessa Plain
    Member