Reci (Migration)

[2018] AATA 849

Reci (Migration) [2018] AATA 849 (9 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Gjovalin Reci

CASE NUMBER:  1604589

DIBP REFERENCE:  BCC2016/665704

MEMBER:Lilly Mojsin

DATE:9 February 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 572 Vocational Education and Training Sector visa:

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 09 February 2018 at 12:05pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Single – Family overseas – Intention to return after course completion – Money expended on course – Not employed – Relevance of course to career path

LEGISLATION
Migration Act 1958, ss 65, 499,
Migration Regulations 1994, Schedule 1 Item 1222, Schedule 2 cl 572.223

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 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 to the Department of Immigration for the visa on 16 February 2016. The delegate decided to refuse to grant the visa on 21 March 2016.

3. 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).

4. The delegate refused to grant the visa finding that the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant is a genuine applicant for entry and stay as a student.

5. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the application.

6. The applicant appeared before the Tribunal on 6 December 2017 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. At the Tribunal hearing the applicant said that when he was 16 he moved to Belgium and finished high school and a Diploma in Administrative Business in Belgium.  He worked after his studies in 2005, he studied in Dutch and he also studied Logistics.  He worked in a recycling company as a driver and transporting confidential documents, then destroying the sensitive information. He worked there until he came to Australia in 2016. He came to Australia as his brother was living here and he was imprisoned. He stayed for 3 months and he went to Bali for 5 days and returned in 2016.

9. He applied to study Horticulture and Agribusiness.  He finished a Certificate III in Horticulture and is now studying a Diploma of Horticulture. He is studying soil and irrigation and different native plants. The course is theoretical and practical.  His passion was always in wineries and when he came to Australia he had occasion to visit the vineyards.  His final goal is to open a winery but it is not an easy way. It is his favourite thing to do.  He is learning in English and dealing with Australian know how.

10. Asked can he study this course in Belgium, he said yes there are similar studies but in Australia there is a practical component. He came for another reason to Australia, it was because of his brother, but when he saw the Australian courses it appealed to him more and especially to study English.

11. He is single. He has no family in Australia. He is on his own. In Belgium he has all his family and grandparents. His father is in Albania.

12. When he saw the wineries he got the spark to remain here. He does not work in Australia he had savings and his family were able to support him when he had to pay bigger amounts of money.  He intends to return to Belgium at end May 2018.

    REASONS  AND FINDINGS

13. Having regard to the applicant’s current proposed course of study, a Diploma of Horticulture at Ironwood Career and Training Institute, the relevant subclass in this application is Subclass 572.

14. The issue in the present application is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(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)….; and

    (iv)any other relevant matter; and

    (b)     …

15. 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;

    ·………….; 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.

16. 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.

17. The Tribunal places weight on the following:

    ·The applicant is single and all his family live in either Belgium or Albania. His brother has returned to Belgium.

    ·He has successfully completed his course, to date, and intends to return to Belgium on completion of his course in May 2018

    ·He has expended considerable monies to study in Australia and has successfully completed, to date, all his studies

    ·The applicant is not working at present and he is concentrating on his studies

    ·His studies are relevant to his intended career path

    ·The applicant does not have any military service commitments in Belgium, nor it is a country that has political unrest

    ·There is no information before the Tribunal to suggest that the applicant has an adverse migration history.

18. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, on balance the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.572.223(1)(a).

    DECISION

19. 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 572 Vocational Education and Training Sector visa:

    ·cl.572.223(1)(a) of Schedule 2 to the Regulations.

    Lilly Mojsin
    Member