Nodado (Migration)

[2021] AATA 2966

Nodado (Migration) [2021] AATA 2966 (22 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrei Bon Nodado

CASE NUMBER:  1933448

HOME AFFAIRS REFERENCE(S):          BCC2019/4544320

MEMBER:Vanessa Plain

DATE:22 July 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl.500.212 of Schedule 2 to the Regulations

Statement made on 22 July 2021 at 11:10am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – arrival on a Visitor visa – completion of courses – satisfactory course progress – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 359
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 Home Affairs to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 11 September 2019. The delegate refused to grant the visa on 4 November 2019.

2. The delegate made the decision on the basis that evidence of:

   ·Investigation of study options in home country

   ·Assets in home country

   ·Economic ties to home country

   ·Research into education providers in home country

   ·Sufficient knowledge of education provider in Australia

   ·Knowledge of proposed courses in Australia

   ·Knowledge of cost of living in Australia

   ·Proposed living arrangements in Australia

   ·The benefit of undertaking the proposed courses in Australia for the applicant’s career prospects

   ·Substantial reasons why the applicant has chosen to study the courses in Australia

   was not provided as required to satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a subclass 500 student visa.

3. The delegate’s decision record also reveals that the delegate had some concern about the fact that the applicant arrived in 2019 utilising a Visitor visa, then changed their migration intentions and applied for a student visa, as being indicative of a lack of genuine intent on the part of the applicant to remain in Australia on a temporary basis for the purpose of study. 

4. The applicant appeared before the Tribunal on 22 July 2021 to give evidence and present arguments.

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

6. In advance of the hearing, the Tribunal received the following documents:

   ·COEs for a certificate IV in commercial cookery, a Diploma and Advanced Diploma of Hospitality Management

   ·A extensive GTE statement

   ·A response to request for student visa information (s 359(2) of the Act)

   ·A suite of academic documents evidencing course attendance, grade attainment and course completion

   ·Letter of reference from employer

   ·Payslip from current employer

   ·Research into job market in home country

   ·Research into course availability in home country

   ·Deed of title

7. At the hearing the applicant informed the Tribunal that his course was marginally delayed for a period due to Covid, but that he is currently undertaking his Advanced Diploma.

8. The Tribunal places significant weight upon the fact that since the time of application for his student visa, the applicant has completed two out of three of the courses which he informed the delegate he would undertake.  This fact alone demonstrates that he is a diligent student and in the Tribunal’s view, he ought to be given the opportunity to complete his remaining course of study because he is evidently a genuine student.  Due to the applicant’s satisfactory course progress, no weight should be attributed to the fact that he arrived in Australia on a visitor visa and subsequently changed his migration intentions in the circumstances.   

9. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   DECISION

10. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

    ·cl.500.212 of Schedule 2 to the Regulations

    Vanessa Plain
    Member