RAJESH KUMAR (Migration)

[2018] AATA 5439

RAJESH KUMAR (Migration) [2018] AATA 5439 (30 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  RAJESH KUMAR

CASE NUMBER:  1716347

HOME AFFAIRS REFERENCE(S):           BCC2017/2051003

MEMBER:Mark Bishop

DATE:30 October 2018

PLACE OF DECISION:  Melbourne

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 30 October 2018 at 3:20pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine student who intends genuinely to stay in Australia temporarily – valid COE provided – personal ties to his home country– no adverse record of compliance with visa conditions –decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218, MD69, cls 9, 10, 11, 12, 13, 14

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 13 July 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 June 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). 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 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 intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal.

5. The applicant appeared before the Tribunal on 30 October 2018 to give evidence and present arguments.

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

   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.

   Genuine applicant for entry and stay as a student (cl.500.212)

8. 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?

9. 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.

10. 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.

11. The applicant provided Confirmation of Enrolment (COE) to the Tribunal for enrolment in an Advanced Diploma of Accounting at VICAT in the period 18 June 2018 until 13 December 2019. VICAT closed in early July 2018. The COE was cancelled by the education provider. The Tribunal inquired if the applicant had a current COE. The applicant advised he was currently enrolled in an Advanced Diploma of Accounting scheduled to commence 9 July 2018 and conclude 14 April 2019. The applicant provide a COE to this effect.

12. The applicant provided a GTE Statement to the Department. It outlined the following:

    ·His dream made him travel overseas seeking knowledge and skills for a better future;

    ·He came to Australia to study electronics;

    ·He wished to establish his own business in electronics. He wished to study business concepts. He enrolled in a succession of Business and Management courses in the VET sector over a period of years;

    ·Studying Accounting would assist in the financial side of his business. Hence he enrolled in Diplomas and Advanced Diplomas in Accounting. He enrolled in Accounting courses at VICAT;

    ·The weather in Australia is attractive as are many of the features of life in Melbourne;

13. The applicant graduated from a University in India with a Bachelor of Technology in June 1998 after four years of study.

14. The applicant has completed or graduated from numerous courses in Electronic Engineering, Electronics and Communications, Business, Management, Marketing Leadership and Management and Accounting at Certificate, Diploma and Advanced Diploma level in Australia.

15. The applicant provided a s.359(2) Statement to the Tribunal that outlined the following:

    ·The applicant completed his university education in 1998 in India;

    ·The applicant worked as a sales executive, site engineer and tutor in physics and electronics in India in the years 1999 until 2008 at a salary of approximately $8,000;

    ·Except when not required as the holder of a temporary work visa the applicant has enrolled in and completed numerous courses in Electronic Engineering, Electronics and Communication, Business, Marketing, Leadership and Management, and Accounting in the period August 2008 until the present time;

    ·The applicant worked in Australia as a sales representative, electronic repairer and VEET installer from 2009 until the present time at a salary up to $23,000 per annum;

    ·An application for a student visa was refused on 13 July 2017;

    ·The applicant travelled to India on four occasions from 2011 until 2016 to see family. He holds a passport from India, first arrived in Australia in July 2008,  has not applied for a visa to another country and has not visited another country in the last ten years;

    ·His annual living expenses are approximately $10,000;

    ·He last saw family in India in February 2016;

    ·He owns significant property assets and has large bank deposits in India;

    ·His employment plans are to set up a small business in the electrical/electronic field in India and also to teach the basics of electronic repair and maintenance;

    ·He does not have any military service commitments and is not aware of any political or civil unrest in her home country

    Ministerial Direction Number 69

16. The Tribunal turns to consider Ministerial Direction Number 69 (MD69).

17. The Tribunal considers cl.9 and 10 of MD69 - the applicant’s circumstances in his home country.

18. The applicant advised the Tribunal he came to Australia in 2008 after having worked in a set of low paid jobs. He came to Australia to gain skills and obtain practical experience in field that he had been unable to gain access in his home country. He advised he attempted to enrol in various institutions in his home country but was denied enrolment because of his age or because his qualifications were insufficient to warrant entry.

19. The Tribunal is of the view the applicant has established reasonable grounds for not undertaking study in his home country.

20. The applicant advised he is not married. He is mother is alive and he has four sisters. Three of those sisters are married and have left the family home. A fourth sister is working in another city at some distance from his home village. The applicant advised ties to former friends and colleagues from work, study and college had dissipated over time. He advised he maintained contact on birthdays or festival celebrations but otherwise his personal ties were limited to family. He advised his family owned significant assets in India and a 1/5^th share would come to him in due course.

21. The Tribunal is of the view the applicant’s personal ties to his home country, whilst limited are significant and serve as a significant incentive to return to his home country. The Tribunal is of the view the applicant’s economic circumstances present as a significant incentive to return to his home country.

22. The applicant’s military service commitments and comments concerning military and political unrest in his home country are set out in paragraph 15 above.

23. The Tribunal considers cl. 11 of MD69 - the applicant’s potential circumstances in Australia.

24. The applicant advised he is not married, does not have any children and made a decision a long time ago not to marry. He advised the Tribunal he had no cause to revisit that decision. He advised he rarely attends temple and mostly studies of evening time. He is not a member of any community or sporting clubs and his main leisure activity is playing chess. He works part time and his income is limited. He does not receive remittances from home.

25. The Tribunal is of the view the applicant’s ties to Australia are limited to occasional friendships derived from study. He has no family in Australia and does not participate in normal community activities. He did not advise of any assets in Australia or business interests excluding part time work.

26. The Tribunal is of the view the applicant’s ties with Australia do not present as a strong incentive to remain in this country

27. The Tribunal considers cl. 12 of MD69 - the value of the course to the applicant’s future.

28. The applicant holds a Bachelor degree from a university in India. The applicant completed his university education in 1998. The applicant worked as a sales executive, site engineer and tutor in physics and electronics in India in the years 1999 until 2008 at a salary of approximately $8,000;

29. The applicant has been continuously engaged in study since his arrival in Australia. He has completed or graduated from numerous courses in Electronic Engineering, Electronics and Communications, Business, Management, Marketing Leadership and Management and Accounting at Certificate, Diploma and Advanced Diploma level in Australia. The Tribunal is not aware of any periods of non-study on the part of the applicant. He has been a serious student who has completed his work on a regular basis.

30. Before coming to Australia the applicant had studies at University in India and worked in various capacities in his home country. He was educated and experienced and seeking opportunity denied in his home country. The Tribunal is satisfied the applicant gave considerable thought to leaving his home country. The Tribunal is satisfied the applicant has chosen courses that re directly relevant to his future endeavours in business.

31. The applicant advised it was his current intention to return home, open a business in a field allied to his prior work experience and study journey in Australia.

32. The Tribunal is satisfied the proposed course  of study complements previous study endeavours in Australia and is relevant to both past and proposed future employment either in India or a third country.

33. The Tribunal considers cl. 13 and 14 of MD69 - the applicant’s immigration history.

34. CL. 13 of MD69 makes it clear the applicant’s immigration history refers both to their visa and travel history.

35. The applicant advised she is a citizen of India, first arrived in Australia in August 2008, has returned to India on four occasions since between 2011 and 2016, has not applied for visas to other countries and has not travelled to other countries in the last ten years, has no military service obligations and is not aware of any political or civil disturbances in her home country. The Tribunal has no reason not to accept this evidence.

36. There is no evidence before the Tribunal that suggests the applicant has ever been in breach of a visa or of conditions attached to a visa.

37. 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).

    Conclusion on cl.500.212

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.

39. 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

40. 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.

    Mark Bishop
    Member