PATEL (Migration)

[2018] AATA 2348

PATEL (Migration) [2018] AATA 2348 (23 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Niravkumar Hasmukhbhai PATEL

CASE NUMBER:  1705762

Home Affairs REFERENCE:  BCC2016/3748657

MEMBER:Lilly Mojsin

DATE:23 May 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.500.312 of Schedule 2 to the Regulations.

Statement made on 23 May 2018 at 11:29am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant genuinely intends to stay in Australia as a member of the family unit of a student visa holder – History of compliance with visa conditions – Relationship with wife genuine and ongoing – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.312

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 8 March 2017 to refuse to grant the applicant a The applicant applied for a Student (Temporary) (Class TU) (Subsequent Entrant) Subclass 500 Student visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 November 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 as a member of the family of the primary visa holder 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.500.312 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant was a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 16 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from primary visa holder.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. Members of the family unit who are applicants for the visa need only satisfy the secondary criteria.

7. The applicant provided to the Tribunal numerous photos of himself and the primary visa holder marrying in India before their family and friends, a Certificate of Registration of their Relationship, details of rent payments, bank accounts, air travel receipts.

8. At the Tribunal hearing the applicant stated that he arrived in Australia in December 2007, to study hospitality and cookery in order to open a business. He finished studies in 2010. He applied for a 485 visa to gain experience in his field. He started working voluntary as an apprentice and was able to gain experience for 1.5 years. He was about to leave Australia in 2012 when Jireh Restaurants and Resorts offered him a sponsorship as a cook. He worked for them and in November 2012 obtained a 457 visa valid until November 2016. He was about to leave Australia when he met his wife. They were introduced by their parents. They registered their relationship in November 2016. They married on 3 March 2018 in India. They waited to marry for a year because his wife’s father died.  They both travelled to India for the funeral. They returned to Australia in May 2017, the applicant returned later than his then fiancé.  The applicant travels to India every 2 years.

9. The applicant did not work after his 457 visa ceased. He is not employed now. He is dependant on his wife and has been since 2016. His wife is studying a Bachelor of Networking in IT. Her visa ceases in March 2019. The applicant and his wife intend to go back to India once she has finished her study. If a visa is granted, he would like to study at TAFE to get more knowledge about cookery.

10. The primary visa holder and the applicant state that they are a genuine marriage couple. When they first met the primary visa holder flew back and forth from Adelaide where she was studying whilst the relationship developed until she transferred to Sydney.

    REASONS AND FINDINGS

11. The applicant applied for a Student (Temporary) (Class TU) (Subsequent Entrant) Subclass 500 Student visa on 9 November 2016. The secondary criteria in cl.500.3 must be satisfied by applicants who are members of the family unit of a person who holds a student, having satisfied the primary criteria: cl.500.2.

12. As the applicant has applied for a visa as a member of the family unit of a person who holds a student visa and the visa has been refused because he did not meet cl. 500.312, he is not required to be enrolled in a course or study or to be a genuine applicant for entry and stay as a student but as a member of the family unit of a person who holds a student visa.

13. Clause 500.312 requires:

    The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa, because:

    (a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

    the applicant's circumstances; and

    the applicant's immigration history; and

    ……; and

    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.

14. In considering whether the applicant satisfies cl. 500.312 , the Tribunal must have and has had 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.

15. The Tribunal has considered whether the applicant entered into the marriage for the primary purpose of putting himself in a position of being able to apply to be added to his wife's student visa so he could maintain residence in Australia. As the Tribunal is satisfied the applicant and the primary visa holder are in a genuine marital relationship and have been, prior to the expiry of the applicant’s 457 visa, the Tribunal is satisfied the applicant did not enter into the marriage in order to maintain residence in Australia.

16. The applicant has achieved a Certificate IV in Hospitality, a Certificate IV in Business and a Diploma of Hospitality Management. He intends to open a business on his return to India. He has remained in Australia on various temporary visas and continued to work until his visa ceased. There is no evidence before the Tribunal to suggest that the applicant has breached any visa conditions to date. Therefore the Tribunal accepts his assertion that he will comply with any conditions to which the visa may be subject.

17. The Tribunal has taken into account the fact that the primary visa holder has been granted, in March 2017, a further student visa for 2 years, valid until March 2019. The applicants both have their families in India and a declared intention to return after the primary via holder completes her studies. The Tribunal has no doubt that pursuing studies in Australia will benefit the primary visa holder on her return to India.

18. On basis of the above, the Tribunal is satisfied, on balance, that the applicant intends genuinely to stay in Australia temporarily.

19. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa and he meets cl.500.312.

20. 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

21. 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.500.312 of Schedule 2 to the Regulations.

    Lilly Mojsin
    Member