Khehra (Migration)

[2018] AATA 2186

Khehra (Migration) [2018] AATA 2186 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nirbhey Singh Khehra

CASE NUMBER:  1700449

DIBP REFERENCE(S):  BCC2016/3159706

MEMBER:Mark Bishop

DATE:30 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 30 April 2018 at 2:32pm

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – Genuine applicant for entry and stay as a student – Failed to attend Tribunal hearing – Wife was the primary student visa holder – Applicant has been separated from his wife – In breach of condition 8516 – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500,211, 500.212, 500,218

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 on 23 December 2016 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 23 September 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). 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 intends genuinely to stay in Australia temporarily

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

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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. The issue in the present case is the finding of the delegate that the applicant does not intend to stay temporarily in Australia.

7. 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?

8. 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.

9. 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.

10. The applicant provided a copy of the decision record to the Tribunal The decision record contained extensive references to the visa and study history of the applicant.

11. The Tribunal wrote to the applicant on 5 April 2018 requesting the applicant provide the following information (1) A copy of a current Certificate of Enrolment (COE) (2) Documents that showed the applicant was currently enrolled in a course (3) Documents that show past studies in Australia, attendance certificates, academic transcripts and certificates of completion and (4) An explanation of any gaps in enrolments and relevant documentary evidence.

12. The applicant did not respond to the request for information. The applicant did not provide any further information to the Tribunal.

13. On 30 April 2018 the applicant filed a Response to hearing invitation form. In that form the applicant advised he would not attend the hearing and neither would his Migration Agent attend on his behalf.

14. The Response to hearing invitation form contained a piece of advice that if the applicant advised he was not attending the hearing the Tribunal might make a decision on review without taking any further action to allow the applicant to appear.

15. The Tribunal proceeded to resolve the matter on the papers.

16. The delegate gave reasons for her findings. The following summary is provided:

    ·The applicant is currently separated and has no children;

    ·The applicant completed secondary school in India and did not provide evidence of studies since that time;

    ·The applicant has not completed any study or graduated from any courses in Australia since he arrived on 19 November 2014;

    ·The delegate found the applicant did not provide any evidence of employment since high school and had no assets or business links in India. The delegate found the applicant’s present circumstances may present a significant incentive not to return to India;

    ·The delegate found the applicant had not considered the value of his studies to a future career path. The delegate found the applicant had not demonstrated the value of the proposed course to his future;

    ·The delegate found the applicant arrived in Australia as the holder of a Subclass 573 Student visa granted on the basis of his relationship with his wife Lakhvir KAUR, who was the primary applicant for the visa. The delegate found repeated errors or mistakes in correspondence from the applicant concerning his marriage. The delegate found the applicant separated from his wife two months after arrival in Australia and had not seen her since that time;

    ·The delegate found the applicant continued residence in Australia as the holder of his original student visa during the time of his separation from his wife.

    ·Condition 8516 requires “the holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires for the grant of a visa”. The delegate found the applicant was in breach of condition 8516 attached to his student visa

    ·The delegate found the applicant was in breach of condition 8516

17. The applicant did not contest any of the findings of the delegate.

18. There is no evidence before the Tribunal that leads the Tribunal to the view the delegate was incorrect in any of her findings as outlined above in paragraph 16.

19. The Tribunal has reviewed the Departmental file. It did not contain a statement from the applicant.

20. On the basis of the above the Tribunal is not satisfied the applicant intends genuinely to stay temporarily in Australia

21. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

    Does the applicant intend to comply with visa conditions?

22. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

23. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). In the review application condition 8516 was attached to the visa.

24. The Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

25. The delegate made a finding that the applicant had been in breach of condition 8516 attached to his visa as the applicant had separated from his wife shortly after arrival in Australia and hence did not comply with a relevant condition that   “the holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires for the grant of a visa”. 

26. There is no evidence before the Tribunal that the applicant intends to comply with conditions attached to his visa. The applicant arrived in Australia in November 2014. Since at least February 2015 until the present time the applicant has been separated from his wife and in breach of condition 8516.

27. The applicant did not make a statement concerning the finding of the delegate that he had been in breach of condition 8516 attached to his visa. At the minimum the Tribunal would have expected the applicant to provide an explanation concerning the finding of the delegate.

28. On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Conclusion on cl.500.212

29. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

30. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Mark Bishop
    Member