Marwaha (Migration)

[2020] AATA 5786

Marwaha (Migration) [2020] AATA 5786 (15 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yogesh Marwaha

CASE NUMBER:  1921995

DIBP REFERENCE(S):  BCC2019/1756452

MEMBER:Dominic Triaca

DATE AND TIME OF

ORAL DECISION AND REASONS:         15 September 2020 at 9:53 am (VIC time)

DATE OF WRITTEN RECORD:                7 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets the criteria in clause 500.212 of the Regulations.

Statement made on 07 October 2020 at 12:35pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant for study – current studies are of value to his future – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
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 22 July 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 15 September 2020, 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

3. The applicant applied for the visa on 9 April 2019 and the delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212, which is the genuine temporary entrant requirements. 

4. The applicant appeared before the tribunal on 15 September to give evidence and present arguments.  And the tribunal hearing was conducted with the assistance of an interpreter, although the applicant’s English was sufficiently good that he was able to conduct the hearing in English.

5. The applicant was also assisted in relation to the review by their Migration Agent.

6. For the following reasons the tribunal has concluded the matter should be remitted for reconsideration. 

7. The tribunal has considered the genuine temporary entry criteria in clause 500.212, and it also considered Direction 69, which sets out a number of considerations in assessing a genuine temporary entrant.  Whilst not defined in the Regulations, the word, ‘genuine,’ may be taken to mean authentic, real or true, in accordance with the ordinary and natural meaning of the words.  And the Regulations specify two constituent elements of this type of application.  The first being a genuine applicant is one who intends to stay in Australia temporarily, and secondly, the genuine applicant must be one who intends to comply with the conditions to which the visa may be subject.  The issues on this application occurred in the following circumstances.

8. The applicant is a 21 year old citizen of India, and he arrived here on 5 February 2019 on a visitor visa.  Shortly thereafter, he enrolled in two courses.  A Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management.  On 9 April 2019 he applied for a student visa, and on 22 July 2019 the delegate of the department refused his application (delegate’s decision). The applicant has now sought a review of the decision by the tribunal.

9. In addition to his evidence today, the tribunal has also read and had regard to documents provided by the applicant to the tribunal, including his GTE statement, confirmation of enrolment documents, 359 response and certificates from the Gen Institute, and correspondence from that institution.

10. The applicant’s academic background is that he completed secondary school in India.  He commenced study in commerce in his home country but did not complete that course and then left his home country to visit Australia.  He arrived in Australia and after a short period commenced studying.  It is a matter in his favour that he continued to study in Australia despite the refusal by the delegate and the uncertainty surrounding the outcome of his visa application.

11. The applicant has provided to the tribunal documents from the Gen Institute.  These are important and relevant.  The tribunal notes that the applicant provided a copy of a Diploma of Leadership and Management from the Gen Institute and an academic transcript in relation to his studies.  He also provided an IELTS test. He provided the Tribunal with a letter from the Gen Institute dated 8 May 2020 confirming that the applicant is a full time student in the Advanced Diploma of Leadership and Management course, confirming that he was enrolled in that course, due to complete that course on 30 April 2021.  By this application, the applicant is seeking to remain in Australia to enable him to complete the Advanced Diploma course, having completed the diploma course in Leadership and Management.

12. The applicant’s plan is to use his course - or use his qualifications - upon return to his home country to seek a job in management in a multinational company in India.  He says that these companies rate and highly regard Australian qualifications and he anticipates that he will be in a much better position to find suitable employment upon his return, if he is able to complete the advanced diploma course. The tribunal considers that the course is consistent with the applicant’s level of education.  The advanced diploma course follows naturally from the diploma course that the applicant has recently completed.

13. And the tribunal considers that given his age and given the fact he does not have any other qualifications, the proposed study and current study is of some value to his future. The tribunal accepts successfully completing the course is likely to improve the applicant’s prospects of employment in his home country or a third country, and it is also likely to increase the remuneration he receives in his home country.  The tribunal accepts the applicant has reasonable reasons for seeking to study in Australia, especially now that he has successfully completed one course and is part way through a second.

14. Overall, the tribunal accepts the current study has value to the applicant’s future.  Essentially, the applicant is doing what a student on a student visa ought to be doing, which is studying in approved courses and progressing academically. 

15. The applicant’s family consists of his two sisters and parents.  His parents live in India.  He has two sisters in Australia.  One lives in Perth, the other in Melbourne.  He lives with his sister in Melbourne.  The tribunal accepts that the applicant is in a close family.  He says he is the only son and his parents are aging and he intends to return home to look after his family upon completion of his studies.  He also says that he intends to return home to India and, after finding a job for a period, hopes to join his father in the family contracting business.

16. The tribunal considers that the applicant’s ties to his home country are such that he has a significant incentive to return home.  It does not regard the mere presence of the applicant’s sisters in Australia as indicative of a strong tie to Australia that operates as a strong incentive to remain here.  In the end, there is no evidence to suggest that the applicant’s ties of relationship with either of his sisters here is of such a nature that those ties would operate as a strong incentive for him to remain here, given that his parents are both in India.

17. The applicant says he does not work and he has no work rights.  He is financially supported by his parents and his sister.  And, in these circumstances, the tribunal does not consider that the applicant’s economic circumstances operate as an incentive for him to remain here.

18. The applicant’s immigration history is such that there is no evidence he has breached any requirements of his visas.  He has travelled from India to Australia without issue.  And, in those circumstances, the tribunal makes no adverse findings in relation to the applicant’s travel or immigration history.  And there are no other relevant matters to the application.  The tribunal notes the delegate was concerned by the applicant’s failure to complete his studies in India and suggested that this lack of completion may mean that the applicant was unlikely to complete study in Australia, given his track record.

19. However, the tribunal is satisfied that any concerns in this regard are allayed by the fact that the applicant has studied in Australia and has demonstrated that he has the ability to complete his studies by completing the diploma course and continuing his studies in the advanced diploma course. 

20. The tribunal also notes that the delegate appears to have been concerned by the fact that the applicant applied for the student visa whilst onshore on a visitor visa.  However, the tribunal considers that the making an application for a student visa whilst onshore is not prohibited by the Act or Regulations and in these circumstances, making an onshore application for a student visa is not adverse to this review.

21. There do not appear to be any further matters relevant to the application.

22. Having regard to all the evidence and all the matters, the tribunal considers that the applicant is a genuine temporary entrant.  He is studying in approved courses, he is making academic progress, and in these circumstances he ought to be given the opportunity to complete his course.

23. On the basis of those reasons, the tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily.  Especially noting that he has lived in Australia for a relatively short period of time and he appears to have studied consistently throughout that period.

24. In these circumstances, he is a genuine applicant for entry and stay as a student, as required by clause 500.212(a), and clause 500.212.  And given these 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.  And, in these circumstances, I remit the application for the student visa for reconsideration with a direction that the applicant meets the criteria in clause 500.212 of the Regulations.

    DECISION

25. The Tribunal remits the decision under review with the direction that the applicant meets the criteria in clause 500.212 of the Regulations.

    D Triaca
    Member