Manjinder Singh (Migration)

[2018] AATA 4336

Manjinder Singh (Migration) [2018] AATA 4336 (28 August 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr  Manjinder Singh

CASE NUMBER:  1703849

DIBP REFERENCE(S):  BCC2016/3052452

MEMBER:  Stephen Conwell

DATE AND TIME OF

ORAL DECISION AND REASONS:          28 August 2018 at 11:37 am (VIC time)

DATE OF WRITTEN RECORD:               18 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant clause 500.212 of Schedule 2 of the Regulations.

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – Genuine temporary entrant – Initial meandering study pattern – Enrolled in relevant course for career – Decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359AA

Migration Regulations 1994, Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 February 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

1. At the hearing on 28 August 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. This is an oral decision in file number 1703849. The applicant, Mr Manjinder Singh applied for his visa on 14 September 2016. By a decision, dated 16 February 2017 that visa was refused on the grounds that the delegate was not satisfied that Mr Singh had a genuine intention to stay temporarily in Australia.

1. At the time that he applied for his visa, the Student (Temporary) (Class TU) visa contained two subclasses; subclass 500, for a student and subclass 590, for a student guardian.

1. Mr Singh confirmed that he applied for his visa to study in Australia and does not claim to meet the criteria for a student guardian visa.

1. He appeared today to give evidence and present arguments. He was assisted by his migration agent.

1. The delegate’s decision sets out the issues which led to the delegate refusing Mr Singh’s visa.

1. The first point of concern troubling the delegate, was that the applicant failed to notify the Department that he was married, in his original visa application and did not list his wife as a family member and did not disclose his partner visa refusal to the Department.

1. The Tribunal has taken into account Mr Singh’s oral evidence, as well as his GTE statement and the submission made on his behalf by his representative. In the view of all of that evidence, the Tribunal is satisfied that the omission was an oversight on the case of the applicant. The Tribunal accepts that the applicant’s previous migration agent may not have provided that information in the application and the Tribunal accepts the evidence that it was an oversight and was not intended to withhold information from the Department.

1. In coming to that conclusion, the Tribunal finds Mr Singh to be an honest and credible witness and his demeanour in the hearing supports the Tribunal’s conclusion that the omission was more of an oversight and not motivated by any adverse intentions on behalf of the applicant.

1. The Tribunal therefore places little weight on the Department’s finding in that regard.

1. The Tribunal has considered the applicant’s study history and has related to the applicant in the course of the hearing, that the Tribunal does have a copy of his  PRISMS  record however, the Tribunal finds that the PRISMS record does not contain information that is adverse to the applicant and has indicated that the Tribunal saw no need to discuss the PRISMS record under a 359AA notice.

1. Whilst the Tribunal finds that the applicant’s study history has been a little meandering in its early days, there is nothing of undue concern in terms of the courses that the applicant has studied. The Tribunal finds that the applicant has remained in the business and  management sector of his studies and whilst it might be said that he might have pursued his

studies in a more direct fashion, the Tribunal finds that it is not unremarkable for a young person to make a few missteps in the course of their studies and take some time to recover them.

1. The Tribunal therefore finds nothing unremarkable or of concern in the applicant’s study history and the Tribunal notes that the applicant is now vigorously pursuing his current studies, which is towards his bachelor’s degree, in the higher education sector for which his original visa was granted.

1. The Tribunal accepts the evidence that he has paid almost all of the fees towards that degree and has only two semesters left to pay and to complete. The Tribunal accepts his evidence that he is completing the degree and giving it his full application.

1. The Tribunal questioned Mr Singh on his work history, noting the evidence that he has provided in response to the Tribunal’s 359(2) questionnaire, that he completed prior to the hearing.

1. The Tribunal remarked that his work in 2015 to 2016, at PNS Graphics earned him $48,000, at approximately $35 an hour and his work the following year, for 2016 to 2017, for the same role, that of assisting project manager for PNS Graphics, earned him an even higher annual salary of $54,120, at $40 an hour.

1. Mr Singh’s response was that he has, at all times, worked within his student visa restrictions. He earned those rather large sums of money through being paid at a higher rate, once the quality of his work was acknowledged and recognised by his employer. He also stated that he worked full-time during the semester breaks, in order to attain the salaries that he has inserted as evidence to the Tribunal.

1. Mr Singh continues to work during his summer breaks as a security guard for Greenstone Services. Mr Singh’s evidence regarding his work is that he has stayed within his visa restrictions and he gave his evidence truthfully and the Tribunal accepts the evidence regarding his work history in Australia.

1. The Tribunal also questioned Mr Singh in regard to his job offer from Ruta Graphics in India and queried whether an employer could foresee its staffing requirements in six months hence. The Tribunal however notes that the latest letter job offer from Router Graphics is  this month.

1. Mr Singh’s evidence is that Router Graphics in India, have an ongoing working relationship with his current employer here in Australia and it was in the course of that relationship, that a senior executive from Router Graphics met Mr Singh in Australia and saw his work and on that basis, offered him employment in India upon completion of his bachelor’s degree.

1. Mr Singh’s evidence is that the bachelor’s degree is the minimum requirement of Ruta Graphics and again, the Tribunal is disposed to accept his evidence regarding both the genuineness of the offer and the requirement of a bachelor’s degree, which he states is required by Router Graphics.

1. Mr Singh’s evidence in regard to his personal and potential circumstances in Australia is that he has only recently completed his divorce proceedings. He is currently living in share accommodation in Melbourne. His parents are in India and getting older. He is the eldest  son of two.  His younger brother is currently studying in Australia.

1. Mr Singh’s evidence is that he has every intention, should his visa be granted, to complete his bachelor’s degree and return promptly to India, to be reunited with his family and to embark upon his new career with Ruta Graphics.

1. Mr Singh also confirmed that there were no adverse economic or military service or indeed, any other adverse reason, such as religious or ethnic, which might prevent him from returning to India and indeed, his evidence is that he is looking forward to returning to India promptly, upon completing his bachelor studies.

1. The Tribunal accepts the submission that it is not possible in this particular case, for Mr Singh to attain the same quality of education towards a bachelor’s degree in India and it accepts his evidence that the bachelor’s degree will add definite value to his future career and that follows from the Tribunal accepting the validity of the offer from Ruta Graphics in regard to his future employment.

1. It follows, that in view of all of the evidence before it and having regard to the factors in Direction 69 and in particular, taking into account the oral evidence of Mr Singh and the Tribunal finding him to be an honest and credible witness, it is the decision of the Tribunal to remit this application back to the Department for reconsideration, on the basis that the applicant satisfies clause 500.212 of schedule 2 of the Regulations.

DECISION

1. The Tribunal remits the decision under review with the direction that the applicant satisfies clause 500.212 of Schedule 2 of the Regulations.

1. This hearing is now concluded. Thank you for your attendance, Mr Singh. You are free to leave.

Stephen Conwell Member