Mandhan (Migration)

[2018] AATA 3868

Mandhan (Migration) [2018] AATA 3868 (8 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PRINCE MANDHAN

CASE NUMBER:  1616820

DIBP REFERENCE(S):  BCC2016/2116370

MEMBER:M. Jackson

DATE:8 August 2018

PLACE OF DECISION:  Brisbane

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 573 Higher Education Sector visa:

·cl.573.223(1A)(a) of Schedule 2 to the Regulations.

Statement made on 08 August 2018 at 1:59pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 573 Higher education sector – genuine student – enrolled in an eligible degree – disrupted study path – progression in studies – reasonable change in study direction – financial capacity met – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 573.111, 573.223

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 22 September 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 21 June 2016. At the time of lodgement, Class TU contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of enrolment in a Bachelor of Business. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.573.223 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 8 August 2018 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, as the applicant currently has an offer of enrolment in a Bachelor of Business as his principal course, the subclass that may be granted is Subclass 573. The issue in the present case is whether the applicant is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters. With the exception of the student guardian visa, this is a requirement for all student visas. For Subclass 573, this requirement is contained in cl.573.223, which is extracted in the attachment to this decision.

8. The requirements of cl.573.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible higher degree student’ who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible higher degree student’ is defined in cl.573.111 to mean an applicant for a Subclass 573 visa who is enrolled in a bachelor’s degree or a master’s degree by coursework or for visa applications made on or after 23 November 2014 an advanced diploma in the higher education sector, and any preliminary course, with an eligible education provider or, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.

9. On the evidence before the Tribunal, the applicant in this case is, and was at time of application, an eligible higher degree student who has a COE for each relevant course of study.  The applicant is currently enrolled in an eligible degree at Holmes Institute which is an eligible education provider: IMMI 16/003.  To meet cl.573.223 therefore, the applicant must give evidence that they have a level of English that satisfies the education provider, and the educational qualifications required by the provider. Additionally, the Regulations require that the Minister is satisfied that: the applicant is a genuine student having regard to the stated intention to comply with the applicable visa conditions, and any other relevant matter; and that while the applicant holds the visa he or she has sufficient funds to meet the costs and expenses during the proposed stay.

   Does the applicant meet the applicable evidentiary requirements?

10. The applicant is a 24 year-old citizen of India who first came to Australia in October 2013 to study on a TU573 Student visa in the higher education sector at diploma and bachelor level in information technology. The student deferred his studies in 2014 due to personal circumstances. On returning to study, he changed his academic field to business. He subsequently studied at diploma and advanced diploma levels and progressed to a Bachelor of Business in 2016. He completed only part of this degree course at his first attempt and now wishes to complete it. On 21 June 2016 he applied for a further TU573 visa, which the delegate refused. The applicant is seeking to have the decision reviewed.

11. The Tribunal has given consideration to the applicant’s circumstances as specified in the Regulations and finds he meets the requirements for the visa, for the following reasons.

12. The Tribunal finds the applicant has met the English language requirements of his education provider, Holmes Institute, in that it issued the applicant a Certificate of English Language Proficiency for a General English course at Advanced level, and admitted the applicant to a Bachelor of Business course twice: in July 2016 and again in August 2018.

13. In October 2013 the applicant commenced studies in an information technology course consistent with the visa grant.

14. In April 2014 the applicant was granted a deferment and suspension by his provider on the basis of compassionate or compelling circumstances. The applicant claims these were related to health issues within his family. The Tribunal accepts the applicant’s reasons for seeking the deferment.

15. In July 2014, on return to study, the applicant changed study direction to the generic business field and then sought a further deferment for personal reasons.

16. In November 2014 the applicant enrolled in an Advanced Diploma of Business which he completed in May 2015.

17. In July 2016 the applicant progressed to a Bachelor of Business course at the same institution. He provided the Tribunal with evidence he successfully finished some elements of that course but did not complete all the degree requirements. He claims this was due to ongoing health issues within his family and his capacity to concentrate on studying.

18. The applicant provided evidence that he is once again enrolled in a Bachelor of Business with Holmes Institute, and he relevantly submitted to the Tribunal a current Confirmation of Enrolment from 1 August 2018 to 31 December 2019. He claims he intends to complete the degree course.

19. The Tribunal accepts the applicant had a disrupted study path due to his family’s circumstances but that he is now creating the conditions for progression in his studies by seeking to complete a degree qualification. It finds he has a genuine intention to complete the course and that it was reasonable to change direction from information technology.

20. In terms of his intentions to return to his home country or remain in Australia beyond his studies, the applicant claims he intends to go home. He plans to form a component manufacturing business with his brother once he is degree-qualified in business. This is important to him, he submits, given his brother’s health is still an issue, and he is the responsible son in these circumstances.  He claims the Australian degree will be valuable to the enterprise. The Tribunal is persuaded the applicant at the time of its decision is genuinely intending to complete the course and return home.

21. In relation to financial capacity, the Tribunal finds the applicant meets the evidentiary requirements of the Regulations because he has applied for the visa to complete a course already commenced.

    Will the applicant comply with visa conditions in future?

22. On 22 September 2016 the applicant was found by the delegate to have been in breach of visa condition 8202, in that he was not studying in a bachelor level course as intended at the time of the visa grant. The Tribunal accepts the applicant did not satisfy the visa condition by progressing to a bachelor degree course, but accepts he has now done so and has partially completed the course. The Tribunal is persuaded the applicant had significant reasons for his disrupted study. The Tribunal finds the applicant is likely to comply with visa conditions in future in order to achieve his aim of completing the degree.

23. Given these findings, the applicant meets the evidentiary requirements in cl.573.223(1)(a).

24. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the 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 573 Higher Education Sector visa:

    ·cl.573.223(1)(a) of Schedule 2 to the Regulations.

    M. Jackson

    
    

    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    573.223(1)     The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)the Minister is satisfied that 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 meets the requirements of subclause (1A) or (2).

    (1A)If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

    (a)the applicant gives the Minister evidence that the applicant has:

    (i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii)educational qualifications required by the eligible education provider; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.

    (2)If subclause 573.223(1A) does not apply:

    (a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.