KUMAR (Migration)

[2018] AATA 3948

KUMAR (Migration) [2018] AATA 3948 (26 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RAJAN KUMAR

CASE NUMBER:  1712326

HOME AFFAIRS REFERENCE(S):           BCC2017/1012187

MEMBER:Mark Bishop

DATE:26 September 2018

PLACE OF DECISION:  Melbourne

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 26 September 2018 at 10:19am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine application for entry and stay as a student – completed a package of Hospitality courses – currently enrolled in a Bachelor of Business – use of visa program for intended purpose – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

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 26 May 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 14 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 genuinely to stay temporarily in Australia.

4. The Tribunal resolved the review on the papers.

5. The applicant provided a copy of the decision record to the Tribunal.

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

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. In his application for a student visa (Df: 2-17) the applicant advised he sought to enter Australia to study a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, Hospitality Management at Diploma and Advanced Diploma level so that he might acquire vocational skills as a cook/chef and management skills to open and run his own restaurant upon return to India.

13. In a GTE statement to the Tribunal the applicant advised of his academic progress to date in Australia. He advised he had completed the VET level course outlined in paragraph 12 above and was about to commence a Bachelor of Business at Holmes Institute. In his GTE submission he addressed issues relevant to Ministerial Direction Number 69.

14. The applicant did not provide evidence of graduation or completion in any of the course outlined in paragraph 12 above.

15. The applicant provided a written response to a request for student information under s.359(2) of the Migration Act. In that response he outlined his work and study history in both India and Australia. He advised he had completed all of the courses outlined in paragraph 12 above. He advised he had worked as a kitchen hand since April 2016 and was currently enrolled in a Bachelor of Business at Holmes Institute. He provided a COE in this course scheduled to conclude 31 December 2020. He provided proof of payment of an initial pre-paid tuition fee of $5,625 out of a total tuition fee of $30,000.

16. The applicant’s PRISMS record showed he had “finished” all of the courses outlined in paragraph 12 above. Finished does not mean completed or graduated. It means the scheduled time for the conclusion of the course has expired. Accordingly PRISMS is not of assistance to the Tribunal in helping to establish whether the applicant has completed and graduated from the courses (as claimed by the applicant) outlined in paragraph 12 above.

17. Accordingly the only material before the Tribunal is the various statements of the applicant as outlined above and a Graduation Certificate III in Commercial Cookery.

18. The Tribunal has no reason to question the veracity of the various written statements of the applicant that he has completed all of the courses as outlined in paragraph 12 above. Accordingly it appears the applicant has been engaged in continuous study in approved courses from December 2015 until the present time and has successfully completed each of those courses.

19. As stated above the applicant is currently enrolled in a Bachelor of Business and has paid up front a substantial part of the tuition cost.

20. The Tribunal has considered all of the above material. It has paid particular regard to the apparent completion of a package of courses related to the Hospitality industry over the last three years that was the initial justification for seeking a student visa.

21. On balance the Tribunal is satisfied the applicant is a GTE to Australia.

22. 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).

    Conclusion on cl.500.212

23. 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.

24. 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.

    DECISION

25. 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.

    Mark Bishop
    Member