PATEL (Migration)

[2018] AATA 2623

PATEL (Migration) [2018] AATA 2623 (13 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs ASHABEN PRADIPKUMAR PATEL
Mr PRADIPKUMAR RAMESHLAL PATEL

CASE NUMBER:  1621917

HOME AFFAIRS REFERENCE(S):         BCC2016/3172546

MEMBER:Wendy Banfield

DATE:13 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations

·cl.500.311 of Schedule 2 to the Regulations.

Statement made on 13 June 2018 at 10:27pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant genuinely intends to stay in Australia temporarily – Value of studies to future career plans – Strong incentives to return to home country – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2, cl 500.212, Schedule 8, Conditions 8105, 8202, 8501, 8516, 8517, 8532, 8533

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 and Border Protection on 12 December 2016 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 23 September 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 the genuine temporary entrant criteria were not met.

   Background

4. The applicant is a citizen of India and is 31 years old. The secondary applicant is her husband who is aged 30. The applicants’ child is currently in India attending school. The primary applicant came to Australia on 7 August 2014 to study a Master of Commerce having already obtained a Bachelor degree in her own country.

5. The applicants appeared before the Tribunal on 16 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

6. The applicants were assisted in relation to the review by their registered migration agent.

   Evidence of the visa applicant

7. The applicant confirmed she came to Australia in August 2014 as the holder of a Subclass 573 Student Visa. She was enrolled to study at Wollongong University to undertake a Master degree. She said coming to Australia was promoted in her home country and she was told studying a Masters would help with her business. According to the applicant she has a dairy production company in India and referred the Tribunal to documents in that regard. The applicant said she is planning to expand the business in another location.

8. Since arriving in Australia the applicant has completed a Master of Professional Accounting and is now studying a Graduate Diploma of Strategic Leadership to be completed on 18 November 2018. The applicant said she thought it would be useful to her after studying Accounting. The Tribunal asked why the applicant wanted to study accounting if she has her own business. She said she could be an Accountant or use her qualifications in business.

9. Prior to coming to Australia the applicant worked as an administration officer while her husband managed their business. In Australia she and her husband work as cleaners. The applicant has also worked as a manager. The applicant has a sister and a cousin in Adelaide while the rest of her and her husband’s family are in India.

10. The applicant was asked about her incentive to return to India after her studies and she said her family are there so she wants to complete her course and go back. She was also asked about applications that were made on four occasions to sponsor her for a Subclass 457 visa which indicated she was seeking a way to stay in Australia. The applicant claimed she was employed as a manager and for two months she considered sponsorship. However, it was claimed the applicant withdrew as she was not happy with the employers business. The applicant’s representative told the Tribunal the applicant had only been aware of one sponsorship application but the employer had lodged it again without her knowledge, including changing the position.

11. The applicant last returned to India in March 2017 and had been back once before when her father was ill and she deferred her studies.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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 is a genuine applicant for entry and stay as a student.

14. 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?

15. 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.

16. 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.

17. The Tribunal has considered the evidence regarding the applicant’s circumstances in her home country. She obtained a Bachelor degree there and worked prior to coming to Australia to study. The applicant’s daughter and extended family, as well as those of the secondary applicant continue to live there. The applicant has a business that it was claimed her husband previously managed and which they intend to expand on their return. While the Tribunal had some concerns as to the usefulness of the applicant’s current studies, there is no doubt she will have employment advantages in India due to her post-graduate studies in Australia. Whether she decides to seek employment as a professional accountant or a business, the applicant will have acquired applicable knowledge.

18. While the applicant conceded she had been offered sponsorship for a Subclass 457 visa in Australia, she has nonetheless continued with her education and appears to have been a successful student. On balance, the Tribunal considers the applicant should be permitted to complete the course she is currently undertaking which is scheduled to finish in November 2018.

19. 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?

20. 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.

21. 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).

22. The applicant provided a statement and gave evidence at the hearing that she only wants to complete her studies. Despite some reservations as to the applicant’s motives, considering the evidence as a whole and taking into account her past history, the Tribunal is satisfied the applicant will comply with conditions attached to a student visa.

23. 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?

24. 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)).

25. As stated, the Tribunal has considered the evidence individually and cumulatively and accepts the applicant is a genuine student.

26. 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.

27. 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.

    Members of the Family Unit

28. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria. Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

29. As the Tribunal accepts that the first named visa applicant satisfies the primary criteria, the secondary applicants meet the criteria because they are members of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.500.212.

    DECISION

30. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations

    ·cl.500.311 of Schedule 2 to the Regulations.

    Wendy Banfield
    Member