Kumar (Migration)

[2021] AATA 901

Kumar (Migration) [2021] AATA 901 (19 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Parveen Kumar
Mrs Tania Rani

CASE NUMBER:  1931568

HOME AFFAIRS REFERENCE(S):          BCC2019/3819695

MEMBER:Vanessa Plain

DATE:19 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 visa:

·cl.500.212 of Schedule 2 to the Regulations

The Tribunal remits the application for reconsideration, with the direction that the second named applicant meets cl 500.311 to the Regulations.

Statement made on 19 January 2021 at 6:14pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine applicant for entry and stay as a student temporarily – positive study progress– positive study record– successfully complete courses – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500,212, 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 Home Affairs to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 1 August 2019. The delegate refused to grant the visas on 24 October 2019.

2. The delegate made the decision on the basis that evidence of:

   ·Completion of study since completing a Diploma

   ·Investigation of study option in home country

   ·Identification of the practical differences between studying in Australia and studying in home country

   ·How the proposed course of study will assist in advancing career goals

   ·Reasons for obtaining an overseas qualification as opposed to a locally obtained qualification

   was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. The applicants appeared before the Tribunal on 18 September 2020 to give evidence and present arguments.

4. At the hearing the Tribunal received the following documents:

   ·Signed personal statements

   ·Response to request for student visa information

   ·COEs for Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management

   ·A business plan

   ·Employment reference

   ·A suite of academic documents evidencing course attendance, grade attainment and course completion

   ·Deeds of title and bank statements

5. In light of the new documentary evidence received, the Tribunal is satisfied that the criteria in cl 500.212 are met by the primary applicant. 

6. Moreover, the delegate rightly held concerns about two previous student visa refusals received by the applicant.  The applicant addressed the reasons for these visa refusals at the hearing and in the documents submitted at the hearing.  Further, based upon the applicant’s evidence at hearing, it was apparent to the Tribunal that the applicant was unaware of the level of detail he was required to embark up, to address the genuine temporary entrant criteria, when he applied, offshore, for his first two student visas.  The Tribunal is satisfied that no adverse inference should be made against the applicant for the fact that he was refused student visas previously, based upon his evidence.   

7. The Tribunal places significant weight upon the fact that since arriving in Australia, the applicant has completed his Certificate III and is shortly to successfully complete his Certificate IV in commercial cookery.  Therefore, he has attended class and progressed academically, which are credible indicators of a genuine student. 

8. Based upon the date of marriage of the primary and secondary applicant, the secondary applicant satisfies cl 500.311 of the Regulations.

9. The Tribunal there concludes that the matter should be remitted for reconsideration.

   DECISION

10. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 visa:

    ·cl.500.212 of Schedule 2 to the Regulations

11. The Tribunal remits the application for reconsideration, with the direction that the second named applicant meets cl 500.311 of the Regulations.

    Vanessa Plain
    Member