Kumar (Migration)

[2018] AATA 5769

Kumar (Migration) [2018] AATA 5769 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jeanica Dilip Kumar

CASE NUMBER:  1712560

HOME AFFAIRS REFERENCE(S):           BCC2017/985511

MEMBER:Mila Foster

DATE:7 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 07 December 2018 at 3:46pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine applicant for entry and stay as student – genuinely intends to stay in Australia temporarily – incentives to return home – family – good economic position – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218, 500.611

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 9 June 2017 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 13 March 2017. 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 intended to stay in Australia temporarily and thus she was not a genuine applicant for entry and stay as a student.

4. The applicant appeared before the Tribunal on 25 October 2018 to give evidence and present arguments.

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

6. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 whether the applicant satisfies cl.500.212. 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 is a 32 year old Fijian national who has held three student visas since 2008. In 2008 she commenced a Bachelor of Psychology course which she did not complete. She subsequently completed a Bachelor of Design course, completed a Certificate II course in Information, Digital Media and Technology, completed a Certificate IV course in Web-based Technologies, and commenced but did not complete a Diploma of Website Development. She had an 18 month temporary graduate visa after completing the Bachelor of Design course and before commencing the Certificate II course. The applicant applied for a fourth student visa (which was refused and is the subject of this review) to study a Graduate Diploma of Professional Accounting course and was granted a bridging visa with study rights pending the outcome of her application. The applicant subsequently commenced but did not complete the Graduate Diploma of Professional Accounting course, has completed a Master of Professional Accounting course and is currently studying a Diploma of Business course.

11. The applicant provided considerable documentation to the Tribunal on review including a detailed submission addressing the factors in Direction 69 as well as her reasons for withdrawing from the psychology and Diploma of Website Development courses and her reasons for transferring from the Graduate Diploma of Professional Accounting course to the Master of Professional Accounting course. The testimony she gave at the hearing was forthright and consistent with the documentation she provided on review as well as the letter dated 26 April 2017 addressing the genuine temporary entrant criterion which she submitted to the Department in support of her current student visa application.

12. In summary, the applicant claims that the lower standard of the Bachelor of Arts – Psychology course she completed in Fiji prior to coming to Australia in 2008 left her ill-equipped for the Bachelor of Psychology course she enrolled in in Australia. She thus lost interest in psychology and as she had always liked design decided to study design. However on completing the Bachelor of Design course and being granted a temporary graduate visa she found that the course had not provided her with the practical computer design skills expected by employers. She thus decided to pursue further study in the hope of improving her employment prospects. For that reason she undertook the Certificate II and Certificate IV courses and commenced the Diploma of Website Development course. However, as a result of a visit with her family in Fiji in January 2017 she reached the conclusion that she wished to return to Fiji to run her parents’ import-export garment business so that her parents could retire and that to do so she should acquire qualifications in accounting and business. I accept the account the applicant has given of her study history and her future plans and find that the accounting and business courses will be of value to her plan to take over her parents’ business. Further, the evidence before me indicates that the applicant’s parents are in a good economic position in Fiji and that she would benefit from that upon returning to Fiji. In addition, the applicant’s close personal ties to Fiji are reflected by the fact she has returned to Fiji almost every year since 2008 to visit her family. I have given significant weight to the value of the courses to the applicant’s future plans in Fiji as well as her significant personal and economic circumstances in Fiji in assessing whether she genuinely intends to stay in Australia temporarily.

13. The applicant has less significant ties in Australia than Fiji. She works as a casual receptionist, has an aunt and uncle here and the friends she has made have moved on to other phases of their lives so that they see each other infrequently. I am satisfied given the explanations the applicant has given for her past and current studies and her future plans that she has not applied for the student visa to circumvent the intentions of the migration programme or to maintain ongoing residence here. I am satisfied that the different areas of study undertaken by the applicant are a genuine reflection of her circumstances and future plans at different points it time.

14. Finally, I draw no adverse conclusions from the applicant’s travel history. She visited Australia as a minor prior to 2008 and has frequently travelled to visit her family in Fiji and other countries since 2008. The delegate noted that the applicant held a business owner visa in 2004 which was cancelled in 2008. The applicant was 18 years old when she was granted that visa. As the applicant’s mother explained in a letter submitted to the Tribunal it was the applicant’s parents who had decided to apply for that visa, the applicant was granted the visa as a dependent and the visa was cancelled because the applicant’s parents decided not to leave Fiji due to changes in their personal circumstances. I have therefore given no weight to the fact the applicant was granted that visa 14 years ago.

15. Having weighed the relevant factors I am satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

    Does the applicant intend to comply with visa conditions?

16. 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.

17. 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).

18. The applicant has stated that she intends to abide by the conditions of the visa and there is no evidence before me that the applicant has failed to comply with previous visa conditions.

19. I am therefore satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

20. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)). There are no other relevant considerations in this case.

    Conclusion

21. In light of the above I am satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212. The appropriate course is therefore to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

22. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Mila Foster
    Member