Patel (Migration)

[2018] AATA 2696

Patel (Migration) [2018] AATA 2696 (26 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bhaveshkumar Bhanubhai Patel
Ms Snehalben Patel

CASE NUMBER:  1703079

DIBP REFERENCE(S):  BCC2016/3110654

MEMBER:Penelope Hunter

DATE:26 April 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 26 April 2018 at 3:10pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine student – No courses completed – Secondary applicant’s medical conditions – Lack of academic progress – Family ties in country– Employment advantages – Degree for career advancement – Decision under review remitted

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 8 February 2017 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 19 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 first named applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.

4. The first named applicant only, appeared before the Tribunal on 12 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Gujarati languages.

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

   CLAIMS AND EVIDENCE

6. The first named applicant, Mr  Bhaveshkumar Bhanubhai Patel, is the primary applicant (the applicant) and applied for the visa in order to undertake a course of study in Master of Professional Accounting.

7. Ms Snehalben Patel is his wife (the secondary applicant) and has applied for the visa on the basis of being a member of the family unit of the applicant.

8. The applicant is a citizen of India and arrived in Australia on 30 March 2014. The application under review is the second student visa application of the applicant.

9. The applicant had previously completed a Bachelor of Commerce in 2006 from Hemchandracharya North Gujarat University, studied a Post Graduate Diploma in Computer Science and Application at Hemchandracharya North Gujarat University in 2007. He then travelled to London and studied General English Upper – Intermediate Level from LTC College London in 2009 and Pre-sessional English as a Foreign Language in Kensington College of London in 2012. The applicant achieved a Post Graduate Diploma of Computing from the University of Wales. In 2014 he commenced studying in a graduate diploma of Professional Accounting at the Victoria University, Sydney.

10. In support of his application the applicant made the following claims;

    i.He believed the study of a Master in Professional Accounting would build up his career as an accountant in his home country and provide him with better career opportunities.

    ii.His future plan was to complete his degree and then seek opportunities in a multinational country in his home country.

11. The delegate in their decision, a copy of which the applicant has submitted to the Tribunal, set out the following reasons for refusing the visa;

    i.The transcript provided by the applicant and letter issued by Victoria University Sydney for the applicant’s previous Graduate Diploma showed that he failed four out of six subjects in 2014, two out of four subjects in 2015 and one out of two subjects in 2016. He had to repeat several subjects. It also demonstrated that he was enrolled mostly in a part-time study load due to compassionate and compelling reasons, academic difficulty and unsatisfactory academic progress. The applicant had also provided evidence that he worked for Woolworths during the period from 1 July 2015 to 24 April 2016 and a joint bank account which showed a balance of $69,060.05 as at 29 August. The delegate questioned why the applicant chose to work even though he failed 7/12 subjects in his course. It was considered to indicate that the applicant was using the student visa program to maintain residence in Australia rather than due to a genuine interest in studying academic progress.

    ii.The applicant had not completed any course since his initial arrival in March 2014, and this was not considered to be a reasonable completion level for a student whose primary purpose for being in Australia was to study and progress academically.

    iii.Although the applicant had claimed the health of this secondary applicant had affected his ability to study, he had provided no evidence to the Department of her health issues.

    iv.The applicant had not provided substantial reasons as to why he had chosen to study accounting in Australia, or how it will assist him in attaining his educational and career goals.

12. The applicant submitted to the Tribunal the following relevant information;

    i.Various medical reports regarding the conditions of the secondary applicant. The secondary applicant suffers from [medical conditions]. She has suffered past [medical conditions]. In January 2017 was [hospitalised]. The secondary applicant also has poorly controlled [medical condition] and is currently receiving treatment for [another condition].

    ii.Due to his wife’s condition, the applicant submitted that Victoria University had allowed him to reduce his study load because he was stressed and caring for his wife. The applicant submitted correspondence and a statement of his academic record from Victoria University.

    iii.The applicant completed his Master of Professional Accounting at the Holmes Institute with good grades, some distinctions and credits. A letter of confirmation was provided from the Holmes Institute, statement of academic transcript.

    iv.He had gone on to enrol in a Master of Business Administration and provided a  Confirmation of Enrolment in a Master of Business Administration from 11 December 2017 to 31 July 2018, letter of offer from the Holmes Institute, interim academic transcript. The applicant submitted that he had two subjects left to complete his dual degree and that he had already attended to the payment of relevant fees.

13. At the hearing the applicant told the Tribunal that his wife’s multiple medical conditions impacted upon his ability to study while at the Victoria University. He was distressed an unable to concentrate due to her ill-health. His academic performance had also disappointed him and his family. He had come to Australia, with their support, to obtain a higher education. With his current studies he claimed he was determined to apply himself further and it was submitted that his academic record supported his efforts.

14. He told the Tribunal that his previous enrolment in the graduate diploma of accounting at Victoria University was a package leading to a Masters of Accounting. This qualification had always been the applicant’s plan, he had not changed his study path.

15. The applicant has not gone on to postgraduate study in England as he had not completed his Masters. He had been wrongly informed by an education agent that he did not need to complete his dissertation in order to progress to a further visa. By the time he realised, he had run out of time, his visa was about to expire and he only obtained the award of a post graduate diploma.  

16. The applicant explained that he had completed his Masters of Professional Accounting and had chosen to enrol in a further course as there was the opportunity at his education provider to obtain a Masters in Business Administration by completing 16 units. He had already completed 12 with his Masters of Professional Accounting, for a further 6 months study he would obtain a second Masters at a small cost. He claimed that in India accounting and business went hand in hand and that it would provide him with a greater opportunity for executive employment when he returned.

17. When asked about future employment at the hearing the applicant said that he had not obtained any job offers as he was concentrating on completing his studies. He had sought work when he returned to India after his studies in England and at that time realised that due to the competition for executive level employment he would need higher qualifications.

18. The applicant told the Tribunal that he anticipated completing his studies on 31 July 2018 and has already paid all fees associated with his course. The applicant told the Tribunal that he intended to return to his home country to build his career and once he had obtained his Masters of Business Administration. The applicant claimed he would provide the Tribunal with an undertaking that he would return home at the completion of his studies. He had family in India in the form of his parents, in-laws and siblings. His son, aged 10, remains in India, being cared for by his parents and siblings. He had not returned to his home country since he arrived in Australia, although the secondary applicant had returned and their son had travelled to visit them in Australia.

19. In Australia the applicant are living in share accommodation. He has struggled to care solely for his wife. It was claimed that that they had no family in Australia. He was working part-time at Woolworths to supplement their living costs but only 10 hours per week.

20. Following the hearing the applicant submitted to the Tribunal evidence of Overseas Student Health Insurance until 31 July 2018 and a statement that once he obtained his degree and transcripts he would definitely return to his home country.

    RELEVANT LAW, CONSIDERATION, FINDINGS AND REASONS

21. 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 in Australia temporarily as a student.

22. 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?

23. 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.

24. 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.

25. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

26. There is considerable more information before the Tribunal, than the delegate, regarding the circumstances of the applicant and secondary applicant during his first student visa. The Tribunal has considered the significant medical evidence presented and accepts that the secondary applicant suffers from several complex and severe medical conditions which have required frequent hospitalisation. It is accepted that these conditions would have impacted upon the ability of the applicant to study while in a foreign country without family support. The evidence presented from the Victoria University does not demonstrate that the applicant did not study, but that he was unsuccessful with a proportion of his study. The Tribunal accepts the reasons presented by the applicant for his lack of academic progress during his first student visa. The information from Victoria University further documents that the Graduate Diploma in Accounting was part of a package of courses leading to a Masters of Accounting. The course which the applicant has undertaken is consistent with his original study intentions.

27. The applicant has now been able to demonstrate to the Tribunal that he can complete studies in Australia. He has maintained enrolment and completed his Masters of Professional Accounting despite the visa refusal. This is the general expectation of applicant’s in Australia on student visas. The Tribunal did have some concerns that the applicant had gone on to undertake a further course, after completing his Masters of Professional Accounting. However, he has explained his reasoning for the further enrolment. The Tribunal accepts that with 6 months additional study he will obtain a dual Masters degree for a relatively small cost. He has also provided evidence of payment of all relevant fees and the expected completions date is in approximately two months. It is not the case that the applicant is proposing several more years study in Australia.

28. The applicant has submitted to the Tribunal an assurance in writing that he will return to his home country. He has strong family ties in India, particularly in the form of his son. The fact that the applicants have not brought their child to stay with them while the applicant is studying, indicates to the Tribunal that they see Australia as perhaps a temporary place to study and not a place to reside. The applicant does not have a position to return to in India; however it is accepted that a dual Masters degree from Australia will provide him with employment advantages and enhance his career prospects. The Tribunal accepts that the applicant is engaging in study at this level for the purposes of career advancement not just to maintain residence in Australia. There is no evidence of any military service commitments, or that there are incidents of civil or political unrest that would act as an incentive for the applicant not to return to his home country. These circumstances in his home country do weigh in favour of the granting of the visa

29. As to their circumstances in Australia, there is no evidence that the applicants have any family in Australia. The applicant has only obtained a small amount of part-time work in retail, not his chosen career. The evidence is that the secondary applicant is not working.

30. When considering the totality of the evidence the Tribunal accepts the written assurance of the applicant. It has determined to give him the benefit of the doubt that he will return at the conclusion of his studies to his home country.

31. 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?

32. 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.

33. 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).

34. The applicant had given evidence to the Tribunal that he was complying with the conditions of his bridging visa. He claimed that he has not ever been refused a visa from any other country, and that during his previous studies in the United Kingdom he also complied with his visa conditions.

35. 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?

36. 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)).

37. There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.

38. 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.

    Secondary applicant

39. The delegate also refused visas to the secondary applicant because it followed that the refusal of applicant’s visa meant that the secondary applicant did not meet the secondary criteria.  As the Tribunal is remitting the application it is appropriate for the delegate to consider these secondary criteria on remittal.

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

1. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.212 of Schedule 2 to the Regulations.

   Penelope Hunter
   Member