PRASHANT (Migration)

[2018] AATA 369

PRASHANT (Migration) [2018] AATA 369 (19 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  PRASHANT
Mrs POONAM CHOWDHARY

CASE NUMBER:  1612915

DIBP REFERENCE(S):  BCC2016/1096927

MEMBER:Jennifer Cripps Watts

DATE:19 February 2018

PLACE OF DECISION:  Sydney

DECISION: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 573 Higher Education Sector visa:

·cl.573.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 19 February 2018 at 9:04am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether applicant genuinely intends to stay in Australia as a student – Significant academic progression – Studies commensurate with career goals - Previous non-compliance – Failure to inform department of change – Language difficulties – Maintained studies throughout non-compliance

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 573.223(1)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration 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 to the Department of Immigration for the visas on 14 March 2016. The delegate decided to refuse to grant the visas on 1 August 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

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 the delegate was not satisfied the applicant is a genuine applicant for entry and stay as a student.

4. The visa that is the subject of this review was refused on 1 August 2016.  The applicant applied for review by this Tribunal on 16 August 2016, within time, and provided the Tribunal with a copy of the Department’s decision to refuse his student visa.  The applicant’s matter was constituted to this member and the Tribunal sent a written invitation to attend a hearing on 16 January 2018, attaching a copy of an extract from the Migration Act 1958, Direction Number 53 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications, for his ease of reference. 

5. The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before his hearing, specifically addressing the issue of whether he “...is a genuine applicant for entry and stay as a student by referring to Direction No.53.”  The applicant was informed he should provide a copy of his current Certificate of Enrolment (COE). 

6. The applicants appeared before the Tribunal on 13 February 2018. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573.

9. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)     the Minister is satisfied that 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)     …

10. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

11. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    Background

12. The applicant is 34 year old Indian citizen who resides in Australia with his wife, also an Indian citizen.  They first arrived in Australia together in November 2013 holding subclass 573 visas.  They have declared no children or previous relationships/marriages.  The applicant provided the Tribunal with some additional documentary evidence in support of his application.

13. The applicant has changed direction and courses have been cancelled, according to his academic record.  He did not inform the Department he had in 2014 switched from a subclass 573 course for which he was granted his original student visa in 2013 to a lower level VET course, which would have entitled him to apply for a subclass 572 visa.  The applicant and his wife are both working and earning fairly substantial salaries, around $1,800 a week, on the oral evidence of the applicant at the hearing.

14. These matters caused the Tribunal some concern as to whether the applicant may be using the student visa programme to maintain residence, and that his primary reason for residing in Australia was not as a genuine temporary entrant for study.  However, all relevant facts and matters have now been considered, including documentary and oral evidence, and the Tribunal is satisfied, on balance, that the applicant is a genuine temporary entrant for entry and stay as a student.  That said, the Tribunal might have reached a different view if the applicant was intending to enrol in more courses beyond the one he is currently enrolled in at Murdoch University and which ends in November 2018 or if, for example, he was working more than 40 hours a fortnight.  However, there is no documentary evidence before the Tribunal that suggest the applicant is enrolled beyond 2018, or intending to enrol beyond 2018, or that he is working more hours than he is allowed to under his current visa conditions.

15. The applicant is, at the time of this decision, in his second last semester of a Master of Business Administration that finishes at the end of 2018.  In reaching this point in his academic career, he has studied some English courses and the following VET and academic courses, including:

    a.2014               Master of Science in Information Technology (cancelled)

    b.2014-2016      Certificate IV commercial Cookery

    c.2016               Diploma of Hospitality

    d.2016-2017      Certificate and Diploma of Business

    e.2017               Associate Degree of Business in Hotel Management

    f.2017-2018      Master of Business Administration

16. Although some courses were cancelled, the applicant has achieved satisfactory results in all the courses he has finished.  The applicant held a subclass 573 student visa granted on 23 October 2013 that ceased on 15 March 2016.  In 2016 a subsequent 573 visa was refused, and that is the subject of this review.  While he held his first student visa, the applicant did not inform the Department that he had discontinued a Master of Science in 2014, for which he was granted the subclass 573 visa, and had instead enrolled in VET courses.  He did not maintain satisfactory enrolment at the 573 level and was studying courses for which he would have been entitled to be granted a subclass 572 visa.  The applicant said he discontinued the Master in Information Technology after one semester in 2014 because he struggled to catch up due to English language difficulties.

17. The Tribunal gives negative weight to the applicant’s non-compliance with his visa conditions from 2014 to 2016, notwithstanding the applicant informing the Tribunal that it was because of language issues.  Essentially, under the terms of his student visa, he was obligated to inform the Department of the change and didn’t, for a period of years (from 2014-2016).  The Department was only informed of the change from a 573 course to a course for which the applicant would have been eligible to apply for a subclass 572 visa when the applicant applied for another student visa, subclass TU-573, on 14 March 2016, the day before his first visa ceased.  Nevertheless, the Tribunal gives some positive weight to the applicant having studied from 2014 to 2016, albeit it at a lower level than the Masters, and having continued to study from 2016 to the time of this decision.  His student visa was refused in late 2016 and, even though he did not hold a student visa from September 2016 to the time of this decision, but held a Bridging Visa A and was not required to study, on the evidence he has continued with his studies and made academic progress from VET to degree courses.

18. At the time of application, the applicant had not commenced the Associated and Masters degrees.  However, at the time of this decision, some 18 months later, the applicant has enrolled, studied and made significant progress with his Associated degree and has not failed any subjects from 2016 to 2018.  On the basis that there is evidence he has achieved satisfactory academic results to date, it is reasonable to think if he continues to apply himself and remain compliant with his student visa conditions if the visa is granted, that the applicant will complete his Masters degree by the end of 2018 and be in position to depart Australia and start his career in hospitality management.

19. The applicant says, in his written submissions dated 05/02/2018, that he is intending to pursue a career in hospitality management with an international hotel.  The applicant has studied cooking, hospitality, business and business administration from Certificate IV to Masters level, from 2013 to 2018.  He has also gained relevant work experience as a commercial cook whilst residing in Australia, including in the kitchen of an international hotel, the Novotel.  The applicant’s stated career goal will, in the Tribunal’s view, be able to be satisfactorily met when he finishes his current Masters course on 23 November 2018.  Any study beyond that would, in the same or substantially similar circumstances as the applicant is in at the time of this decision, in the Tribunal’s view, based on consideration of the applicant’s qualifications, experience and stated career goals at the time of this decision, be surplus to requirement for him to pursue a career in his chosen field.

20. The applicant is about half way through his Masters course, has been attending classes and paying his fees since his visa was refused in 2016.  He has less than a year to complete the degree.  The Tribunal, whilst somewhat concerned at the length of time the applicant has resided in Australia as a temporary resident – at the time of this decision, five years, and by the time he finishes the Masters course it will be six years – and his change in study direction after commencing a Masters degree in Information Technology in 2014 that was cancelled and which he did not continue but instead enrolled in low cost VET level Commercial Cookery courses from 2014-2017, is inclined to give him the benefit of the doubt and give credit to his claim to be a genuine temporary entrant who, on his own evidence, is planning to depart Australia with his wife, the secondary applicant, when he finishes his Master in Business Administration at the end of 2018.

21. The applicant did not provide the Tribunal with a COE and his current 2017-2018 study at Murdoch University has not been entered into PRISMS.  This was discussed with the applicant at his hearing.  He said that Murdoch would not give him a COE or enter his study into PRISMS because he only holds a bridging visa.  After the hearing, the Tribunal wrote to Murdoch University to establish the applicant’s enrolment status.  The university, on 16 February 2018, confirmed that the applicant is, at the time of this decision, enrolled at Murdoch University in a Master of Business Administration.  They did not confirm whether he is attending classes as they say they do not monitor class attendance.  The university confirmed that the applicant is enrolled in two units for Semester 1, 2018 which commences on 26 February 2018.  This information was consistent with what the applicant said at the hearing.  The university provided an unofficial academic transcript showing the units completed in 2017, which was, consistently, the same as the one the applicant himself provided to the Tribunal.  The university confirmed that the applicant has paid a total of $11,027 in 2017 for tuition fees and that he does not have any outstanding tuition fees.  This was also consistent with what the applicant said at the hearing.

22. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other relevant matters, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets meet cl.573.223(1)(a).

23. As the Tribunal has found the applicant meets the requirement of cl.573.223(1)(a), it will remit the matter to the delegate for reconsideration.

24. The delegate also refused the visa of the secondary applicant who is included in this application because it followed that the refusal of the primary applicant's visa meant that the secondary applicant did not did not meet the secondary criteria: cl.573.322. As the Tribunal is remitting the application, it is appropriate for the delegate to consider the secondary criteria on remittal.

    DECISION

25. 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 573 Higher Education Sector visa:

    ·cl.573.223(1)(a) of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Member