Sandikci (Migration)

[2019] AATA 1432

Sandikci (Migration) [2019] AATA 1432 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Burak Sandikci
Mrs Miray Zeynep Ergier
Ms Aise Nas Sandikci

CASE NUMBER:  1712912

HOME AFFAIRS REFERENCE(S):           BCC2016/3464066

MEMBER:Mila Foster

DATE:15 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the first named applicant’s application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the he meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in relation to the second and third named applicants.

Statement made on 15 January 2019 at 11:57am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Bachelor of Business – timing of visa application – visa granted as dependent cancelled as consequence of cancellation of wife’s visa – genuine student – degree near completion – incentives to return to home country – close family ties – career opportunities – economic position– intends to stay in Australia temporarily – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 338, 347, 353, 499
Migration Regulations 1994(Cth), Schedule 2, cls 500.211, 500.212, 500.218, 500.311, 500.611, Conditions 8105, 8202, 8501, 8516, 8517, 8532, 8533

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 1 June 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Any members of the family unit who are applicants for the visa need only satisfy the secondary criteria.

3. The applicants applied for the visas on 18 October 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The first named applicant, the primary visa 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. The second and third named applicants applied as secondary visa applicants – the second named applicant being the first named applicant’s wife and the third named applicant being their 3 year old child.

4. The delegate in this case refused to grant the visas on the basis that the first named applicant did not satisfy the requirements of cl.500.212 of Schedule 2 because he did not intend to stay in Australia temporarily and that the second and third named applicants did not satisfy the secondary criterion in cl.500.311 of Schedule 2 because they were not a member of the family unit of a person holding a student visa.

5. The issues in the present case are whether the first named applicant satisfies cl.500.212 of Schedule 2 and whether the Tribunal has jurisdiction in relation to the second and third named applicants. For reasons I give in my consideration of the claims and evidence below, I have concluded that the matter should be remitted for reconsideration in relation to the first named applicant but that the Tribunal does not have jurisdiction in relation to the second and third named applicants.

   RELEVANT LAW

   Jurisdiction

6. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act (a Part 5-reviewable decision). In the case of a decision described in s.338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

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

7. 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.

   Genuine intention to stay temporarily

8. 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 (the GTE 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.

9. 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 GTE entrant criterion.

   Intention to comply with visa conditions?

10. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

11. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider.

    Any other relevant matter

12. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

    CLAIMS AND EVIDENCE

13. The claims and evidence before me in this case include the following:

    a.Department of Home Affairs[1] (the Department) file BCC2016/3464066 relating to the combined student visa application the applicants made on 18 October 2016. 

    b.The delegate’s decision record.[2]

    c.Australian Department of Education and Training PRISMS records relating to the courses of study the first named applicant has enrolled in.[3]

    d.Department movement records relating to the applicants.[4]

    e.Pre-hearing submission made to the Tribunal.

    f.Evidence and arguments presented by the first and second named applicants at a Tribunal hearing on 1 November 2018.

    g.Post-hearing submission addressing the jurisdictional issue.

    [1] Formerly the Department of Immigration and Border protection.

    [2] On the Department of Home Affairs file and presented by the applicants on review.

    [3] Tribunal file 1712912, ff.32-33.

    [4] Tribunal file 1712912, ff.47-50.

14. According to the student visa application the first named applicant applied for the visa to undertake an English and Bachelor of Business course until December 2019. Submitted in support of the application were documents including evidence of Certificate IV in Business and Diploma in Management courses the first named applicant completed in Australia in July 2014 and an IELTS Test Report issued in April 2015. In relation to his ability to meet the GTE criterion for the student visa the first named applicant stated:

    I finished high school in Turkey and went to study in Hungary. I came to Australia and further studied English and completed certificate IV and diploma of business from Holmes and would like to complete bachelor of business and make some work experience than go back to my country to make good career this is my dream but I met my wife in Australia after which changed everything without my control.

    My workplace wants to sponsor me to get 457 visa. But the nomination got three times refused and than I understand I did mistake also I wasted my time.

    At that moment, I am regret and the only think I want to do in order not to disappoint my family is to study and finish my degree before going back to my country as I can not go back without completing a degree. Mt wife already had bachelor degree. In order to settle down in Turkey and have a good future for my wife and daughter I must study, GTE qualification and start the new chapter of our life when I am back in Turkey.

15. According to the delegate’s decision record:

    a.The first named applicant was first granted a student visa in September 2010 to study English. The first named applicant arrived in Australia in October 2010 to undertake that study.

    b.The first named applicant was granted a further student visa in November 2011 valid to February 2015 in order to study towards a Bachelor of Business.

    c.The first named applicant was granted a student visa in December 2014 as a dependent of the second named applicant who had also commenced study in Australia. The Department issued a notice of intention to consider cancellation of the second named applicant’s student visa for breaching her conditions in September 2016. Her visa was subsequently cancelled and as a consequence the first named applicant’s student visa was cancelled on 24 October 2016.

    d.The first named applicant’s enrolment for the Bachelor of Business was officially issued in November 2016.

16. In light of the above information the delegate concluded that the first named applicant previously had the opportunity to complete a Bachelor of Business but had not done so and that it appeared his decision to return to study in Australia at a higher education level was predominately as a consequence of the cancellation of his and the second named applicant’s student visas rather than a genuine intention to study in Australia.

17. The applicants’ migration agent provided the following information in the pre-hearing submission in support of the first named applicant’s claim that he satisfies the GTE criterion:

    a.Based on the level of English the first named applicant reached after completing the 44 week English course he initially undertook in Australia, he was offered a further 10 week English course and Bachelor of Business course at the Holmes Institute. After completing the 10 week English course he was given the option, which he chose, to study Certificate IV in Business and Diploma in Business courses packaged with the Bachelor of Business. Upon completion of the certificate IV and diploma courses, the first named applicant’s academic English skills were no adequate to commence his degree study so he undertook further English study. During that time he met the second named applicant and they married in Sydney in May 2014.

    b.In October 2014, the second named applicant became pregnant and thus the first named applicant applied for a student visa as her dependent so that he could better look after his family. The first named applicant has worked in Australia as the manager of restaurant since 2013. He was offered a working visa by his employer but it was refused. The future path of the applicants became clear – they would go back to Turkey – but the first named applicant first wanted to complete his degree.

    c.The third named applicant was born in September 2015.

    d.Based on the first named applicant’s results on ‘the internal English test’, he was offered a further English course from October 2016 until January 2017 followed by a Bachelor of Business course from February 2017 until December 2019. After two years of studying very hard the first named applicant had completed 21 subjects and has only 3 subjects left to complete the bachelor course in May 2019.

    e.The first and second named applicants had a second child in October 2018.

    f.The first named applicant is from Istanbul, the economic capital and biggest industrial centre in Turkey. There are many employment opportunities there. A bachelor degree is the minimum requirement to secure a decent professional job and a bachelor degree from Australia would contribute enormously to his ability to provide a comfortable life for his young family.

    g.The first named applicant’s family ties in Turkey consist of his mother and two siblings, his father died in 2017. His family has an above average economic position. His mother owns property in Turkey, earns rental income from a shop, has a tailoring business and receives a pension/retirement income as the widow of her deceased husband.

    h.The second named applicant’s family ties in Turkey consist of her parents and a sibling. Her father owns a property and land in Turkey, earns rental income and receives a retirement income.

    i.The first named applicant’s degree study in Australia has nothing to do with migration purposes but to improve himself for the future and return to Turkey. His family will be better off returning to Turkey with him having a degree qualification compared to living in Australia.

    j.The second named applicant’s failure to comply with her visa conditions was the result of mixed factors beyond her control including being newly married, a shocking pregnancy, and the difficulties of caring for her baby in Australia without family help.

    k.The first named applicant’s visa history is in the past. His most recent years have been focussed on his degree study and his academic performance demonstrates his genuineness as a student. 

18. Also submitted was a letter dated 28 September 2018 from an education provider stating that the first named applicant was currently enrolled in 4 subjects, had completed 17 subjects and needed to complete 3 more subjects to complete the bachelor of Business course.

19. I refer to the claims and evidence presented at hearing and in the post-hearing submission in my consideration below. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Second and third named applicants

20. The Department’s movement records show that the second and third named applicants departed Australia on 29 April 2017 and returned on 10 August 2017. This indicates that they were not in Australia when their review application was made on 1 June 2017. I raised the jurisdictional issue this gives rise to at the hearing. The first and second named applicants did not dispute that the second and third named applicants were not in Australia when the review application was made. Their migration agent sought additional time to make submissions on the issue after the hearing which was agreed to. However, the submissions do not assist the second and third named applicants.

21. The post-hearing submission confirms that the second and third named applicants were not in the migration zone when the review application was made. Its states that the second name applicant had decided to leave Australia due to stress over the longer than normal student visa processing time, and to have a break, see her family after having her first child and ease her post-natal depression.

22. After noting that the review application made by the applicants satisfied certain requirements for the making of a valid application for review, the migration agent stated that ‘normally’ when a visa application is made and decided while the visa applicant is in the migration zone the review application is expected to be made in the migration zone. The migration agent then sought a favourable decision in relation to the validity of the review application given the second and third named applicant’s circumstances did not follow the ‘normal sequence’. She referred to the fact the second and third named applicants had visas permitting them to return to Australia until the Tribunal made its decision, the Regulations concerning the location of the visa applicant at the time of the grant of a student visa, and stated that the Tribunal is not bound by technicalities, legal forms or rules of evidence and shall act according to substantial justice and the merits of the case.

23. The migration agent correctly indicated that the decisions to refuse to grant the applicants student visas are Part 5-reviewable decisions under s.338(2) of the Act. However, s.347(2)(a) and (3) of the Act required the applicants to be present in the migration zone when they lodged their application for review of the decisions. It is thus not a matter of what ‘normally’ occurs nor is the fact the second and third named applicants had visas permitting them to return to Australia relevant to whether or not they met that legal requirement. Further, s.353 of the Act states that the Tribunal is not bound by technicalities, legal forms or rules of evidence, and shall act according to substantial justice and the merits of the case in reviewing a Part 5-reviewable decision, that is, in the conduct of a review where the Tribunal has jurisdiction to review such a decision. That provision does not apply when determining whether or not the Tribunal has the jurisdiction to conduct a review.

24. Thus, on the evidence before me, I find that the second and third named applicants were not in the migration zone when the review application was made. The application for review was thus not an application properly made under s.347 in relation to the decisions to refuse the second and third named applicants student visas. As the Tribunal does not have a valid application for review in relation to the second and third named applicants it does not have the jurisdiction to review the decisions to refuse to grant them student visas.

    First named applicant 

    Does he intend genuinely to stay in Australia temporarily?

25. The first and second named applicants testified at the hearing in relation to the GTE criterion in a clear and forthright. The testimony of each was consistent with the other as well as the submissions and documents before me. I have thus given their testimony considerable weight.

26. I have had regard to the timing of the current student visa application – that it was made after the applicants were notified of the Department intention to cancel the second named applicant  student visa and the first named applicant had unsuccessfully applied for an employer sponsored temporary employment visa. I have also had regard to the fact the first named applicant had not commenced the degree course he had applied to study in 2011. However for the following reasons I have concluded that the application was not made for the purposes of maintaining residence in Australia.

1. The first named applicant’s visa was cancelled as consequence of the cancellation of the second named applicant’s visa and not any conduct by the first named applicant. The second named applicant’s student visa was cancelled due to a lack of progress in her studies. She testified and I accept that she struggled with her studies when she was pregnant and after giving birth to her first child. Given the circumstances of the cancellation of their visas I have not drawn any adverse inferences from the cancellations.

2. I accept the testimony of the first and second named applicants that while the first named applicant had explored the possibility of obtaining residence in Australia through employer sponsorship in the past, when that failed they decided that their future was in Turkey. I also accept that they consider it very important for the first named applicant to return to Turkey with a degree after all the time he has spent here – to show that he has attained what would be regarded as a worthwhile level of education.

3. The evidence indicates that the first named applicant is approaching the end of his educational goal to obtain a Bachelor of Business degree. While it has taken some time to get to this point the first named applicant has taken logical steps towards achieving that goal. After completing his initial English studies he undertook and completed non-degree studies relevant to his future degree. He then found he needed to improve his English language skills to the level required to study a degree course and successfully completed that study. The subsequent delay in undertaking the degree appears to have been the result of changes in his personal circumstances most significantly meeting his wife in Australia, marrying and having a child. It is not unusual that such changes require some adjustment to a person’s goals and plans. Despite these developments he is now just a few subjects away from completing the degree. This indicates that he has a genuine intention to undertake and complete the degree course.

4. Further, the results the first named applicant has achieved in the degree course so far as and the fact he has accelerated his study and is due to complete the course 7 months ahead of schedule strongly supports the first named applicant’s testimony that he is keen to return to Turkey and build a life there with his young family as soon as possible. I have given significant weight to the progress the first named applicant in his degree course.

5. I accept the first named applicant’s testimony that his intention on completing the Bachelor of Business is to return to Turkey and set up his own business and that he has already explored the nature of the business he wishes to establish and the government subsidies he would be able to access to do so. I also accept as the first and second named applicant indicated in their testimony that they believe that with a degree they will have a better quality of life in Turkey than they would if they remained here. 

6. Finally, the evidence before me indicates that the first and second named applicants have close family ties in Turkey which would encourage them to return there when the first named applicant completes his degree course. Those ties seem especially significant given their children are the first grandchildren in their families, they will be a source of support not available in Australia and the second named applicant hopes to return to work in Turkey.

7. I am therefore satisfied that the first named applicant intends genuinely to stay in Australia temporarily. Accordingly, the first named applicant meets cl.500.212(a).

   Does he intend to comply with visa conditions?

8. The first named applicant has stated he will comply with the conditions of the student visa if it is granted. The evidence before me does not indicate that he has failed to comply with the conditions of previous visas he has been granted. The student visa he was granted as a dependent was not cancelled due a breach of conditions by the first named applicant but a consequence of the cancellation of his wife’s student visa. I am thus satisfied that the first named applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

   Is he a genuine applicant for entry and stay as a student because of any other relevant matter?

9. There are no other relevant matters for consideration.

   Conclusion

10. In light of the above findings, I am satisfied that the first named applicant is a genuine applicant for entry and stay as a student as required by cl.500.212. The appropriate course is therefore to remit the first named applicant’s application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

11. The Tribunal remits the first named applicant’s application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that he meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

12. The Tribunal does not have jurisdiction in relation to the second and third named applicants.

    Mila Foster
    Member