MOHAMMAD TARIQ (Migration)

[2018] AATA 1170

MOHAMMAD TARIQ (Migration) [2018] AATA 1170 (12 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  MOHAMMAD TARIQ

CASE NUMBER:  1700213

DIBP REFERENCE(S):  BCC2016/3400186

MEMBER:Wendy Banfield

DATE:12 March 2018

PLACE OF DECISION:  Sydney

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 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 12 March 2018 at 10:00pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is a genuine temporary entrant – Lower level of studies undertaken – Genuine reasons for undertaking lower level of study

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.212

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 19 December 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 13 October 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was determined the criteria of genuine temporary entrant had not been met.

   Background

4. The applicant is a citizen of India and is currently 28 years old. He came to Australia in 2012 to study a Master of Business. Prior to arriving in Australia he had obtained a Bachelor in Communications and worked as an intern in India. After completing his post-graduate qualifications the applicant obtained a temporary work visa in order to gain international experience.

5. The applicant then enrolled in and is studying an Advanced Diploma of Accounting. He declared an intention to return to India and establish an advertising business using his qualification obtained in India and Australia.

6. The applicant appeared before the Tribunal on 2 March 2018 to give evidence and present arguments.

7. The applicant was assisted in relation to the review by their registered migration agent.

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

   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 meets the criteria of a genuine applicant for entry and stay in Australia who intends to remain in Australia temporarily.

10. Clause 500.212 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; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of 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:

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

    ·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;

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

    ·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 provided evidence of his Masters qualifications and the results from his Diploma of Accounting. He is undertaking an Advanced Diploma of Accounting as an addition to his studies in Business. According to the applicant, during his time in Australia on a temporary work visa, he realised he needed to undertake studies in accounting as it will be beneficial to him in establishing an advertising business.

14. The Tribunal had reservations about the benefits to the applicant in studying Accounting after successfully completing a Master’s degree, in addition to his Bachelor degree from India. It is a concern that the applicant has regressed to a lower level following post-graduate studies. However, the Tribunal takes into account the applicant’s explanation of his future plans and accepts that the principles of a course such as accounting may enhance his practical business skills.

15. The Tribunal’s decision is predicated on the applicant having only a short time left until he finishes the Advanced Diploma. For these reasons the Tribunal considers the applicant should be permitted to complete the course he is currently enrolled in.

16. 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).

    Does the applicant intend to comply with visa conditions?

17. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

18. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8535 (limited visa entitlement), 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

19. According to the evidence, the applicant has substantially complied with visa conditions in the past. Therefore, on the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

20. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

21. The Tribunal has taken into account the applicant’s successful completion of post-graduate qualifications in Australia and the steps he had taken to improve his future prospects.

22. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

23. 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

24. 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 of Schedule 2 to the Regulations.

    Wendy Banfield
    Member