Kaur (Migration)

[2018] AATA 3355

Kaur (Migration) [2018] AATA 3355 (14 June 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Mandip Kaur Mr Jasraj Singh

CASE NUMBER:  1701132

DIBP REFERENCE(S):  BCC2016/3066124

MEMBER:  Stephen Conwell

DATE AND TIME OF

ORAL DECISION AND REASONS:          14 June 2018 at 12:20 pm (VIC time)

DATE OF WRITTEN RECORD:               27 June 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decisions under review with the direction that the applicants satisfy clause 500 within Schedule 2 of the Migration Regulations.

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Where studies undertaken at a significantly lower level than originally intended – Where studies undertaken in a largely unrelated field – Satisfactory reasons for change of studies – Value of studies to future plan of the applicant – Decision remitted with direction

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 12 January 2017 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

1. At the hearing on 14 June 2018 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

1. This is an oral decision in the case of Mrs Mandip Kaur, file number 1701132.

1. Mrs Kaur applied for her student visa application on 13 September 2016.     By a decision of

   12 January 2017, that application was refused on the basis that the delegate was not satisfied that Mrs Kaur was in compliance with clause 500.212, the Genuine Temporary Entrant criteria.

1. Mrs Kaur attended at the hearing today and was assisted by her representative. The hearing was conducted with the assistance of an interpreter in English and Punjabi.

1. At the time that the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student, depends of the type of courses in which the applicant is enrolled or has an offer of enrolment as his or her principal course or whether the applicant has the support of the relevant Minister.

1. Mrs Kaur arrived in Australia on 4 March 2014, via the streamlined visa process, to undertake a Unipath English course and Master of Business Administration, (MBA), at James Cook University. Mrs Kaur attended the MBA classes for two semesters, but her evidence today and in her GTE statement submitted to the Tribunal, she explained that she struggled with her studies at that level and her Bachelor of Arts degree, which she completed back in India, did not prepare her for the more demanding subject matter in the MBA and in addition, had to cope with the not unexpected factors, such as homesickness and learning to acclimatise to a new city and a new culture.

1. Mrs Kaur’s evidence is that she persisted hard for two semesters, but finally decided that an MBA was not for her and after receiving some good feedback in regard to her work in a restaurant, she decided to embark on a hospitality career and about the same time, she determined she would move down to Melbourne and pursue the remainder of her studies in Australia there.

1. The delegate’s concerns include the fact that Mrs Kaur has dropped from AQF level 9 studies in an MBA, to unrelated AQF level 3 studies in Cookery, leading to the hospitality qualification. While the Tribunal considers that that is something which warrants further enquiry, on the evidence today, the Tribunal is satisfied that Mrs Kaur does genuinely have an interest in pursuing a career in hospitality.

1. The Tribunal finds Mrs Kaur to be a credible witness and accepts her evidence that she wishes to pursue a career in hospitality and in her experience thus far, it appears to be her passion and her interest, and she has not wavered in her pursuit of those studies.

1. Her evidence today is that she has studied continuously, from a Certificate III in Commercial Cookery, through to Certificate IV and on to the Diploma. The only study gap she has taken relates to her pregnancy, for which she sought a deferment, which was granted.

1. Her evidence is also that she has not been in breach of visa condition 8516, having been enrolled in the Bachelor of Business in which she is currently studying.

1. Mrs Kaur provided evidence of her plans to pursue her career goals upon return to India and to open up a restaurant. She has submitted as evidence, a copy of a site plan of the proposed restaurant and a quotation from builders and designers, providing an estimate of the construction of the proposed restaurant.

1. On the face of it, the Tribunal has no reason to question the validity of the quotation and the site plan and in view of the Tribunal accepting Mrs Kaur as a credible witness, the Tribunal accepts the evidence tendered, regarding the proposed restaurant, as genuine.

1. The applicant gave evidence that whilst she and her husband have been living in country Victoria for several years and have been there not long after her arriving down from Brisbane, she disagrees with the delegate’s concern that her studies are based in the CBD of Melbourne and she gave evidence that she attends her classes twice a week and that her attendance is satisfactory and she has not found it unduly difficult or a burden to make that attendance, despite living some distance away in country Victoria.

1. The delegates notes, that the distance between the applicant’s home in Sale and Melbourne is in excess of 210 kilometres. However, the Tribunal accepts the evidence submitted that the applicant does not feel burdened by this and it has not prevented her from attending her classes in Melbourne city.

1. The applicant explained that her marriage was a love marriage, which has led to her son being born, who is nearly two and has been living back in India for the past 12 months or more. On the applicant’s evidence, the reason for that is so that she could concentrate on her current business studies, which understandably, are more demanding than studying at the VET level.

1. The applicant’s evidence is that her marriage is experiencing difficulties, which have been exacerbated in recent times.

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1. The Bachelor of Business in which she is currently enrolled is expected to finish in June 2020 and it is the applicant’s evidence that she hopes to complete the remaining 30 per cent or more before then, so that she may return to India in as short a time as possible.

1. The applicant’s evidence is that the Bachelor of Business is important to her, in regard to her goal to own and run the restaurant and the Tribunal accepts that running a restaurant is a business and business skills are a necessary component of that. The Tribunal accepts as reasonable, that her business studies will complement the hospitality studies that Mrs Kaur has already attained.

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1. On the evidence today, the Tribunal accepts the genuineness of Mrs Kaur’s intention and accepts her assertion that her plans are focused around completing her studies and returning to her son in as short a time as possible.

1. In the GTE questionnaire and in her oral evidence, Mrs Kaur confirmed that, with the exception of her husband, all of her family, both in-laws and her own family, are in India.  She also explained that her son lives with her in-laws and that she has a good relationship with her in-laws, which she expects will continue, regardless of the fate of the marriage.

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1. Having found that Mrs Kaur is a credible and genuine witness and having determined to accept the evidence put forward by her and on her behalf by her representative, it is the decision of the Tribunal to remit Mrs Kaur’s application to the Department, with a recommendation that she satisfies clause 500.212 within Schedule 2 of the Migration Regulations.

1. The time is now 12.20 pm.  This hearing is now concluded.

1. Thank you, Mrs Kaur for your attendance.  Thank you, Mr Bajwa.

DECISION

1. The Tribunal remits the applications for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 500 visa:

• cl.500 of Schedule 2 to the Regulations

Stephen Conwell Member