Khaira (Migration)

[2019] AATA 1662

Khaira (Migration) [2019] AATA 1662 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ramandeep Kaur Khaira
Mr Gagandeep Singh Khaira

CASE NUMBER:  1714632

HOME AFFAIRS REFERENCE(S):           BCC2017/1025072

MEMBER:Mark Bishop

DATE:31 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant and second named applicant, respectively, meet the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.;

·cl.500.311 of Schedule 2 to the Regulations

Statement made on 31 January 2019 at 8:31am

CATCHWORDS
MIGRATION – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – COE – sequential enrolments with no gaps – successful completion of courses – responsible and successful student – established financial and family ties to home country – logical career plan – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211 – 500.218, 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 Immigration and Border Protection on 30 June 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a copy of the applicant’s PRISMS history. The decision record contained a history of the applicant’s visa, immigration and study history in Australia.

5. The applicants were assisted in relation to the review by their registered migration agent.

6. The Tribunal resolved the review application on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.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.

   Genuine applicant for entry and stay as a student (cl.500.212)

9. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)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

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

10. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian 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.

11. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

12. The applicant provided a written statement that she came to Australia to study a range of courses in Business and Management fields within the VET sector leading to a Bachelor degree in Business.

13. The applicant provided copies of COE’s relating to a series of VET courses in Business, Management at Diploma and Advanced Diploma Level, Painting and Decorating and Building and Construction.

14. Enrolments in all of the above courses were sequential and there were no gaps in enrolment.

15. The applicant provided copies of Graduation Certificates relating to her studies in all of the above courses.

16. The applicant has successfully completed vocational courses that give her sector specific skills consistent with her family business and industry relevant management and business skills.

17. In late 2017 the applicant enrolled in a Bachelor of Business. She provided a copy of a letter from Acknowledge Education that advised she had successfully completed 70% of the Bachelor course. She provided a copy of her course results to date that showed she was generally earning high grades in her Bachelor degree.

18. The applicant provided written statements to the Department and the Tribunal that addressed relevant principles under Ministerial Direction number 69. She attached relevant supporting documentation.

19. The applicant addressed her family background, the utility of Australian education, spousal intentions, her Australian study experience, her Australian work experience, her reasons for choice of education provider, her career prospects, financial support from her home country, personal and financial ties to her home country, her academic history and personal ties to India.

20. The Tribunal is satisfied the applicant came to Australia to engage in study. The applicant has been diligent in her attention to visa obligations. The applicant has been a responsible student. The applicant has been a successful student. The applicant has outlined a logical career plan related to her studies in Australia.

21. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

22. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

23. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    SECONDARY APPLICANT Gagandeep Singh KHAIRA

24. The secondary applicant is the spouse of the primary applicant. The Tribunal has found that the primary applicant meets cl.500.212(a) of Schedule 2 to the Migration Regulations. The secondary applicant is a member of the family unit of the primary applicant. Accordingly the secondary applicant meets cl.500.311 of Schedule 2 to the Migration Regulations

    DECISION

25. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant and second named applicant, respectively, meet the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations;

    ·cl.500.311 of Schedule 2 to the Regulations.

    Mark Bishop
    Member