Rajiv (Migration)

[2022] AATA 2725

Rajiv (Migration) [2022] AATA 2725 (20 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dahal Rajiv

CASE NUMBER:  2116685

HOME AFFAIRS REFERENCE(S):          BCC2021/1779171

MEMBER:Vanessa Plain

DATE:20 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl 500.212 of Schedule 2 to the Regulations

Statement made on 20 June 2022 at 12:39pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – positive study progress – genuine applicant for entry and stay as a student – personal ties to home country – depression and anxiety – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 500.212

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 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 14 September 2021. The delegate refused to grant the visa on 27 October 2021.

2. The delegate made the decision, in whole or substantial part, on the basis that evidence of:

   ·Further study completed since 2018

   ·Economic ties to home country

   ·Satisfactory knowledge of proposed courses of study

   ·Knowledge of visa conditions in Australia

   ·Knowledge of expected remuneration to be derived as a result of the course of study

   ·Business plan for future business

   ·An explanation as to why an Australian qualification would assist him in achieving his career goals by comparison to a qualification that could be obtained in the applicant’s home country 

   was not provided as required to satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a subclass 500 student visa.

3. The delegate’s decision record reveals that the applicant is a 25 year-old Nepalese man who arrived in Australia on 26 April 2016 utilizing an initial Student Visa.  The delegate held concerns that the applicant’s primary motivation in applying for a Student visa was to secure ongoing residence in Australia, rather than due to a genuine desire to undertake the course of study.  The delegate was not satisfied that the applicant had sufficiently established a benefit to their future remuneration and employment prospects as a result of doing the proposed courses of study.  For these reasons, the delegate determined that the applicant was not a genuine entrant.     

4. The applicant appeared before the Tribunal on 20 June 2022 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Nepalese languages.

6. In advance of the hearing, the Tribunal received the following documents:

   • COEs for a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management

   ·    Psychological report

   ·    Signed GTE statement

   ·    Response to request for student visa information (s 359(2) of the Act)

   ·    A suite of academic documents evidencing course attendance, grade attainment and course completion 

   ·    Research into course availability in Nepal 

   ·    Bank statements

7. At the hearing, the applicant informed the Tribunal that he started his bachelor studies in Australia shortly after completing an advanced diploma in accounting studies, however, during his bachelor studies his father became critically ill in his home country which caused him difficulty, for he was not able to return home to see his father, nor was he able to pay his tuition fees.  He asked the university to defer his studies, but his request was refused.  At the same time, he was suffering from diagnosed mental health conditions for which he was seeking treatment.  His illness impacted upon his capacity to undertake his studies successfully.  His health improved and he decided subsequently that he did not want to study business, rather, he decided to undertake hospitality studies on account of the opportunity in the job market in his home country.  His course is scheduled to conclude in October 2023.   

8. The Tribunal finds that the applicant is not utilising the student migration program to obtain long term residency.  The Tribunal places significant weight upon the psychological report which provides that the applicant was suffering from depression and anxiety in 2018 which impacted adversely on his studies.  The applicant’s academic documents establish that since changing his course direction and addressing his mental health issues, he has attended class and progressed academically.  The Tribunal places weights on these factors as being indicative of the applicant being a genuine student. 

9. The Tribunal places further weight upon the other documents referred to above produced by the applicant in advance of the hearing.  The substance of the documents plainly establishes that the applicant has researched study options in his home country, has researched the job market in his home country, has strong family ties to his home country, is aware of visa conditions in Australia, has detailed knowledge of his course contents and education provider and has demonstrated that the value of the course to his future outweighs the current cost of completing the course.  These are strong indicators of a genuine student who intends genuinely to stay in Australia temporarily for the purposes of study. 

10. The Tribunal further finds that the applicant does not have an adverse immigration history in Australia.     

11. In light of the new evidence received and the findings set out above, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

    DECISION

12. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

    ·cl 500.212 of Schedule 2 to the Regulations

    Vanessa Plain
    Member