Meet (Migration)

[2021] AATA 3777

Meet (Migration) [2021] AATA 3777 (31 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpinder Singh Meet

CASE NUMBER:  1929692

DIBP REFERENCE(S):  BCC2019/2243702

MEMBER:Michael Biviano

DATE AND TIME OF

ORAL DECISION AND REASONS:         31 August 2021 at 11:43 am (VIC time)

DATE OF WRITTEN RECORD:                16 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets the following criteria for a subclass 500 student visa-

·clause 500.212(a) of schedule 2 of the Regulations

Statement made on 16 September 2021 at 12:30 pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – genuine temporary entrant for study –current studies are of value to his future – family and social ties to home country – incentive to return home – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499

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 26 September 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 31 August 2021, 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. This is an application to review a decision made by a delegate and the Minister for Home Affairs on 26 September 2019 to refuse to grant the applicant a student temporary class TU visa under section 65 of the Migration Act.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy clause 500.212(a) of schedule 2 to the Migration Regulations 1994 for the reason that he was not a genuine applicant for entry and stay as a student in Australia because he did not intend to stay here temporarily.

5. The applicant appeared before the Tribunal on 31 August 2021 to give evidence and present argument.  The applicant was assisted in relation to the review by his registered migration agent. 

6. It is appropriate to highlight that a decision-maker is not required to make the applicant’s case.  It is for the applicant to satisfy the Tribunal that the requirements of the Act have been met.  Although, the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of each individual case have to be satisfied by the applicant in as much detail as is necessary to enable the examiner to establish the relevant facts.

7. For the following reasons the Tribunal has concluded that the decision under review should be remitted for reconsideration. 

8. CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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. The issue in the present case is whether the applicant was a genuine applicant for entry and stay as a student.

   Genuine applicant for entry and stay as a student (cl.500.212)

10. Clause 500.212(a) 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…

    Does the applicant intend genuinely to stay in Australia temporarily?

11. 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:

    a.the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    b.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;

    c.if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    d.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.

12. 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.

13. The applicant is a 32-year-old Indian national who first came to Australia on 25 February 2019.  He entered Australia after obtaining an initial visitor (Class FA-600) visa. 

14. The applicant entered into Australia with his wife for the purposes of their honeymoon.  Prior to coming to Australia, the applicant had undertaken studies in both India and in New Zealand. 

15. The decision record of the delegate of the Department of Home Affairs dated 26 September 2019, which was provided to the Tribunal by the applicant, confirms that the applicant made the current application for a student (Class TU Subclass 500) visa on 26 April 2019 (Decision Record).  At the time of the visa application the applicant had enrolled to undertake a Diploma and Advanced Diploma of Information Technology.

16. The applicant gave evidence that he had completed a Diploma of Technology in India which specialised in mechanical engineering and that he had undertaken work as a lecturer in India for a period of 12 months. 

17. He gave evidence that he went to New Zealand with a student visa for the purposes of undertaking study so that he could establish a business back home to import and export componentry and systems for the installation of solar panels.

18. Whilst in New Zealand, the applicant completed a Diploma of Business Management.  He then undertook a number of jobs in liquor and grocery stores, before he commenced working in web design and ultimately finding that he enjoyed undertaking such work. He gave evidence that as had insufficient funds to establish his own solar componentry business back in India without the support of his parents who did not wish to support him financially in the business, so he decided to pursue undertaking studies in web design, for the purpose of establishing a career.

19. The applicant completed a Diploma of Information Technology in New Zealand, which he completed in September 2016.  The applicant then returned back to India in August 2017 after completing studies and some travel time in New Zealand and commenced work from home in India, working for a New Zealand company performing web design services. 

20. The applicant remained at home in India from August 2017 and was then married on 18 January 2019.  During this time he worked from India undertaking web design services. The applicant gave evidence that he and his wife came to Australia for the purpose of their honeymoon.  His wife at the time was studying a Bachelor of Education back in India.  It was intended the honeymoon would be for a two-week period but they extended it for a period of a couple of months after the applicant and his wife were informed that his wife did not need to return to India for a couple of months and that she could continue her studies from the resources provided to her, as long was able to return for her exams, which she did.

21. Consequently, the applicant and his wife completed their honeymoon and his wife returned to India. The applicant claims he was encouraged to undertake studies here in Australia from a representative of the New Horizons Institute, who he met in Melbourne, while on his honeymoon to complete Information Technology and Services studies that would enable him to complete his education in Information Technology and provide further detailed skills and certificates in a number of different IT disciplines. 

22. Importantly, the applicant claims that he wanted to establish a complete web design business back in India and that he needed to be fully skilled in the Java language and obtain international certification from Australia.  Consequently, he claims that he also wanted to undertake studies which enabled him to improve security and hosting of web design so that he would be able to provide a complete service in the new business he intends commencing in India.

23. Consequently, the applicant commenced studies at New Horizons Institute in July 2020 which were to conclude in January 2022.  From the evidence that has been provided to the Tribunal, the New Horizons Institute closed in late 2019, the applicant’s enrolment was to be transferred to Next Generation Institute and then subsequently to Academies Australasia.  However, during the course of the transfer of his enrolment between the relevant institutions, which took place at the end of 2019, the applicant was informed that he would not be granted credits for the purposes of his studies that he had completed at the New Horizons. 

24. Consequently, the applicant has enrolled to undertake an Advanced Diploma in Networking and Telecommunication Engineering, which will provide him with the requisite information to perform that work and provide him with certification in Java, which is at an international level.  The applicant commenced that course in April 2020 and he is expected to conclude that course in April 2022. 

25. The applicant has given evidence that he does miss his wife and family significantly and that he wishes to return home, as soon as he has completed his studies, to be with them and to commence his business.  The applicant gave evidence that he is currently living with his wife’s sister here in Australia, and her family, and that he is not working and concentrating solely on his studies. The lack of income would not provide a financial incentive to remain here in Australia.

26. The Tribunal considers, based on the applicant’s evidence, that the applicant has come to this country on a visitor visa in accordance with its purpose and has not acted in an inconsistent manner with the visitor visa, when he came to this country. 

27. Further, the Tribunal is satisfied, based on the applicant’s evidence, that the course that he is undertaking, whilst a lower level course, does provide technical expertise and experience to him and will be beneficial for his career both in the circumstances of setting up his own business or, alternatively, in the circumstances if he decides to obtain employment with some other company.

28. In the circumstances, the Tribunal accepts that the course he is undertaking will improve both his employment prospects and level of remuneration in India. 

29. Further, the Tribunal accepts that he is undertaking this course in circumstances where the level of qualification he would obtain in Australia would improve his qualifications overall and that it would be an internationally recognised qualification.  In those circumstances, the Tribunal accepts he has a reasonable motive for undertaking those studies here in Australia.

30. The applicant is not working but has readily conceded that the level of income that he could earn in Australia is substantially higher than that in India and that the economic conditions in Australia are superior to those in India, which would ordinarily provide a financial incentive to him for him to remain in Australia.  Whilst that may be the case, the applicant expects that when he starts his business in India his income will be around 80 to 90 thousand rupiah per calendar month, which equates to $AU1500 per calendar month; which, whilst lower level of income than which he would receive in Australia, it would still be substantial due to the lower level of expenses in India.

31. The applicant has his family and his wife back home and those ties would provide a substantial incentive to return home. The applicant is being supported financially by his family, while he undertakes his studies. 

32. The applicant’s ties to Australia are limited, in essence being his studies and his wife’s sister, with whom he resides. Those ties do not provide a strong incentive to return home.

33. The applicant has no concerns about military services commitments or civil unrest or political unrest in his home country or concerns about returning home to India.

34. The Tribunal notes the applicant was refused a post study work visa in New Zealand, he provided a detailed explanation in the Response to the Tribunal that the visa was refused predominantly due to a delay in the issuing of his renewed passport and complications in submitting the application, which delayed the application being made by the applicant and the time for him to apply for the visa which needed to be made within 3 months of the completion of the course. The applicant made the application for the visa out of time and his application was refused on that ground only. The Tribunal makes no adverse finding against the applicant with respect to this visa application.    

35. The applicant has been financially supported by his family here in Australia, and the Tribunal finds that based on the applicant’s evidence and circumstances in his home country, including his education and the support of his family, relative to others in that country he is a good financial position, and it would provide a significant incentive to return home.

36. The applicant has been in this country for a period of some two years and seven months, which is a significant period of time but consistent with the stay being temporary, especially if he returns home at the conclusion of his studies in April 2022.

37. The applicant by reason of the duration of his studies has a substantial degree of knowledge about living in Australia and about the course and education provider.

38. In all the circumstances, the Tribunal considers that the applicant is here studying on a genuine basis and his intended stay is temporary. 

39. 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).

40. 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

41. 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(a) of Schedule 2 to the Regulations.

    Michael Biviano
    Member