Puneet Singh (Migration)

[2022] AATA 4255

Puneet Singh (Migration) [2022] AATA 4255 (5 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Puneet Singh
Mrs Parveen Kaur

REPRESENTATIVE:  Mr Mandeep Singh (MARN: 1802739)

CASE NUMBER:  2113685

HOME AFFAIRS REFERENCE(S):          BCC2021/1734190

MEMBER:Warren Stooke AM

DATE:5 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 5 October 2022 at 10:24am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– primary applicant was offshore at the time of decision – was not a member of a family unit where the primary applicant has an approved Student visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 2, cl 500.311

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 on 21 September 2021 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 6 September 2021. 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 500.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because criterion 500.311 of Schedule 2 to the regulations requires the applicant(s) secondary applicant to be a member of the family unit of a person who satisfies, or has satisfied, the primary criteria for the grant of a student visa. As the applicant PARVEEN KAUR (primary applicant) has been refused grant of a Student (Temporary) (Class TU) subclass 500 visa, they are not a person who satisfies, or has satisfied, the relevant primary criteria. The delegate therefore found that the secondary applicant does not meet the criteria for the grant of a subclass 500 visa as they do not satisfy Criterion 500.311 of the Regulations.

4. The applicants appeared before the Tribunal on 4 October 2022 to give evidence and present arguments.

5. The applicants were assisted in relation to the review. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa.

8. The issue in this case is whether the applicant meets cl. 500.311of Schedule 2 to the Migration Regulations which relevantly states:
   
   “500.311 

   The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

   (a)  the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:
   (i) the primary person’s application under subregulation 2.07AF(3); or
   (ii) information provided in relation to the primary person’s application under subregulation 2.07AF(4);
   
   (b) the applicant became a member of the family unit of the primary person:
   
   after the grant of the student visa to the primary person;
   (ii) and before the application was made.”

9. On 21 September 2021, the application of Ms Parveen Kaur’s (the primary applicant) for a TU 500 visa was refused by the delegate.

10. The primary applicant has not sought a review of the decision of the delegate of 21 September 2021 and the applicant is not a holder of a Student TU 500 visa.

11. The Tribunal was provided with information that the primary applicant was offshore at the time of decision and attended the hearing from her home country, India, by video link.

    Ms Parveen Kaur (Primary Applicant)

12. The issue in the primary applicant’s case before the delegate was whether the applicant is a genuine temporary entrant for the purposes of study in compliance with cl. 500.212 of the Regulations.

13. The Tribunal has reviewed the evidence in the Department and Tribunal files and concurs with the findings of the delegate in the decision of 21 September 2021, which included the following:

    “I also consider that the applicant has previously been in Australia as the holder of a student visa. I acknowledge that the applicant has stated a career pathway intention, but they have not shown a substantial improvement arising from the proposed studies that will outweigh the significant time and monetary commitment these courses would require, over their existing Bachelor qualification from India and Master competencies from Australia that they already hold. As such, I have concerns that the applicant’s potential employment circumstances and opportunities in Australia may be a strong motivating factor to remain in the country and that they are utilizing the student visa to achieve this goal.
    The applicant is 27 years old and has previously been studying in Australia for some
    years. They were originally granted a student visa to study a Master degree in Australia (no evidence of completion provided). I acknowledge that they were previously granted a student visa to study Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management and they now wish to continue their studies at the lower Australian Qualifications Framework (AQF) level, however, they have not provided any explanation as to how these courses will be any more beneficial to their career than their Bachelor qualification and Master competencies.
    I note that the applicant has stated that their spouse has been residing in Australia whilst they have been back in their home country since 18 February 2020.
    Overall, I am not satisfied, given their individual circumstances; the applicant genuinely intends a temporary stay in Australia and have concerns that their potential circumstances in Australia outweigh those in their home country.”

14. The Tribunal considers that the lack of academic progress in the Higher Education sector, together with evidence that the applicant has made a switch to study Commercial Cookery and Hospitality in the VET sector, without adequate evidence as to how these courses of study will provide a career in the home country does not satisfy the Tribunal that the primary applicant is a genuine temporary applicant for the purposes of entry and stay as a student in Australia and notes that the chosen courses of study have been for the purposes of residency and lifestyle rather than a genuine career aspiration.

15. The Tribunal informed Ms Parveen Kaur (the primary applicant), that the Tribunal did not have jurisdiction to review the delegate’s decision pertaining to the decision in her case, as no review application has been constituted to the member as currently presiding and that she is outside of the Australian migration zone, as informed by the Representative. As such, the review in the present hearing was confined to the circumstances of the secondary applicant, Mr Puneet Singh and the compliance with cl.500.311.

    Representative Submission

16. The Representative submitted that Ms Parveen Kaur went offshore and that the only option for a review was for the husband to make an appeal, as Mr Singh was onshore at the time.

17. The Representative confirmed to the Tribunal that he had explained to the applicant that the Tribunal did not have jurisdiction to review the delegate’s decision pertaining to the primary applicant, Ms Parveen Kaur, as no application for review had been lodged with the Tribunal and the applicant resides outside of the Australian migration zone.

    Conclusion

18. The Tribunal finds that as the primary applicant was offshore at the time of the application for review, having departed Australia in February 2020, she cannot be added or make a valid application for review as she is not in the migration zone. The Tribunal notes that it would not have had jurisdiction with respect to her application if she had applied.

19. The hearing was conducted in relation to the secondary applicant, Mr Puneet Singh, who is currently resident in Australia and attended the hearing. Mr Singh provided evidence that he was not a member of a family unit where the primary applicant has an approved Student (Temporary) (Class TU) subclass 500 visa. As such, the Tribunal is satisfied that the applicant does not satisfy the criteria contained in cl. 500.311 of the Regulations.

20. Accordingly, the Tribunal is not satisfied that the applicant meets cl. 500.311 of the Regulations.

21. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

22. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Warren Stooke AM
    Member