SANKET KUMAR (Migration)

[2018] AATA 2344

SANKET KUMAR (Migration) [2018] AATA 2344 (23 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SANKET KUMAR

CASE NUMBER:  1702824

DIBP REFERENCE(S):  BCC2016/2779791

MEMBER:David Barker

DATE:23 May 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 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 23 May 2018 at 10:49am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant genuinely intends to stay in Australia temporarily – Significant time spent in Australia – Consistent academic progress – Cogent reasons for undertaking studies – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.611, Schedule 8, 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 on 7 February 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 22 August 2016. 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 considered there was insufficient evidence to demonstrate that the applicant is a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 27 March 2018 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by their registered migration agent.

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

   Background

7. The applicant is a national of India and is 32 years old.

8. The Department delegate’s decision record, a copy of which was provided with the review application, states the applicant first arrived in Australia in November 2007, as the holder of a TU-573 Higher Education Sector student visa. The delegate noted the applicant was subsequently granted Subclass 485 and 457 visas in 2012 and 2013. The delegate noted that at the time of the visa application the applicant had  enrolled to undertake a bachelor of Business, which commenced in July 2016  and Master of Business Administration, which was due to finish in June 2019.  The delegate noted this would extend the applicant’s stay in Australia to over 11 years and that he had not returned to his home country since his arrival in Australia in 2007.

9. In response to an invitation to the applicant from the Tribunal to provide documents or arguments he wished to rely on in his review, the applicant provided documentary evidence including, but not limited to, evidence of his current and past academic studies and a written statement, which relevantly stated:

   I came to Australia on 7 Nov 2007 to complete my Certificate IV in cookery and Diploma of Hospitality, which was a scheduled for two years and I completed it within time, without any gap or deferment. This course was completed on 6th Nov 2009 and after completion I applied for the 485-graduate skilled visa to gain some hands-on experience in my field of study.

   The 485 visa was lodged 011 26 December 2009 and subsequently approved after two years that was on10 February 2012. During these two years, until I got the decision on the 485 visa, I was holding a bridging visa for the entire duration. The visa was approved for 18 months and was valid till 10 August 2013. While I was on the bridging visa and 485 visa, I worked at various places as casual and part time to gain industry experience but I was not employed more than a kitchen hand or casual staff. I worked as security guard as well to earn some extra living.

   I was offered a position of a full time cook in Dec 2012 and the employer applied for a 457 visa for me, which got approved for a period of 5 Feb 2013 to 5 Feb 2017. I took this role and commenced my employment with [business name supplied] ('the employer') since Nov 2012 that was 4 months before the approval of 457 visa. The Employer was holding some salary of me already and after the approval of 457 visa he refused to pay me my holding salary and also did not pay me until the following two months. He said that I need to compensate all the expenses incurred for my 457 visa including his business sponsorship and nomination application. I told him that I am from a lower middle class family and could not work with him like this. I was very disheartened and quit that role with that employer and decided to take my education to a level where I could work at a higher managerial position.

   I consulted my family for my higher studies. It was not easy for them to take care of my study expensed but given my circumstances they allowed me and confirm the financial support to complete the higher education.

   I immediately enrolled in the bachelor of business course and applied for the student visa 573 on 24/04/2013 (paper application). The 573 visa was approved

   on the basis of the COE - 5A4AB827, which commenced from 15 July 2013 and was scheduled to complete on 24/06/2016. I commenced my Bachelor of Business studies on scheduled date but one of the subject (e-Business Management) was not completed by the end date of the course. This course was non-mandatory and was not available in the following semester. So I took another optional subject (Innovation & Entrepreneurship) in the following semester, for which I was issued another CUE - 8245AA62 for 18/07/2016 to 23/06/2017.

   I planned to complete my Master of Business Administration (MBA) course after completion of the bachelor degree. So I enrolled myself in MBA with the CUE - 8245BA15, commencing 17/07 2017 to 7/06/2019. The MBA was scheduled immediately after the completion of my bachelor degree hence I applied for my final student visa extension with both courses together.

   I regularly studies and successfully completed all subjects till date except one of the bachelor subject as mentioned above. I never took any leave or deferment from my course, as completion of my studies is my priority. I have been on student visa for my first course that was Diploma of Hospitality and this Bachelor and Masters course. I regularly attended all my classes and completed all my subjects and courses within time till date.

   The case officer has also questioned my prolonged stay in Australia. Traveling back to my home country was not feasible for me during the entire period. The financial condition was never been so strong that I could travel back every year. The return travel ticket costs around $1500 and I need additional $500 for every visit even if it is a short visit of 20 days. I always speak to my parents and brother via video calls and phone. So it was not sensible for me to ask for the additional travel cost, as it could be an extra burden on my parents.

   I will be completing my Masters degree in Jun 2019 and after this I have plans to return permanently. I had already been approved the 485 skilled graduate visa once that confirms that I could not apply it again, hence after completion of this course I will be returning as soon as I received my completion documents. I have also applied for a managerial role in my home country for which I receive a positive response. So I am confident enough that I could find a suitable employment on completion of my Masters.

   This is to request that I genuinely intend to complete my Masters as my final course. My previous study history shows it clearly that I always studied regularly and never used any allowed time for the purpose of staying in Australia. I only intend is to complete this higher studies so I request the MT member to please allow me to complete my masters qualification

10. The Tribunal provided the applicant with time following the hearing to provide further evidence in support of his claims and on 10 April 2018 he provide the Tribunal with 12 months of account statements from the bank account he operates in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 genuine applicant for entry and stay as a student.

12. 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?

13. 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.

14. 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.

15. I found the applicant to be a credible witness who gave his oral evidence in a calm, matter of fact manner without embellishment.  The applicant’s oral evidence is consistent with the written submissions he has provided with his review application and I am satisfied weight can be placed on the applicants’ evidence.

16. The applicant gave evidence he has completed the Bachelor of Business and is now studying the Master of Business Administration.  He was able to describe in some detail the content of the course and the assessment task he is currently working on. He said he tried to get work in a managerial role in the hospitality sector following his completion of studies in that area, but his relative lack of success led him to undertake the Bachelor and Master’s degree courses in Business Administration so as to improve his career prospects back in his home country.  He said he wants to work as a hotel manager and that in some of the places he has worked on a part time basis, such as Hungry Jacks restaurants, he has at times assisted the manager in their role.  He said he has previously completed a Certificate IV in Commercial Cookery and a Diploma of Hospitality Course.

17. The applicant gave evidence he gained a Bachelor of Arts in India but that he had only limited paid employment before he came to study in Australia.  He said his father is retired and had previously worked in a government job.  He said his brother runs his own business.  He said he receives some financial support from his family for his education and living expenses.  He acknowledged he has not returned to India since 2007 and contended this was due to financial constraints.  He said he maintains regular contact with his family in India through WhatsApp and other electronic technologies.

18. The applicant acknowledged he has previously held a Subclass 485 and Subclass 457 visa.  He said he experienced significant financial hardship from an employer who sponsored his Subclass 457 visa, as they tried to get him to repay costs associated with their sponsoring him for this visa.

19. The applicant told the Tribunal he has a job offer he can take up in the hospitality sector in India upon his return there.  He said he intends to return and take up this job after he has completed the Master of Business Administration course.  He said he is currently working part time as a security officer, earning between $400 and $500 per week.

20. Having considered the applicant’s evidence during the hearing and the applicant’s circumstances overall, I find his explanation for both his study history and study goals to be plausible.  I accept that the applicant is making consistent academic progress in the business degrees he was enrolled to undertake at the time he applied for the Subclass 500 visa in August 2016 and that he has a plausible plan for future employment in his home country following his completion of the Master of Business Administration in 2019.  I am satisfied the financial records he has provided the Tribunal support the applicant’s claims as to his employment earnings in Australia and the periodic financial support he receives from his parents.  I note the applicant is working part time in Australia but am not satisfied this employment provides him with a clear incentive to seek to remain his residency Australia for economic reasons.

21. 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).

    Does the applicant intend to comply with visa conditions?

22. 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.

23. 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).

24. The Tribunal does not have any evidence to indicate the applicant has not complied with visa conditions in Australia. While the applicant has some gaps in his studies, he has provided a plausible explanation for these gaps and his current circumstances. The Tribunal takes into account the fact the applicant is currently studying and is making good progress towards completing the Master of Business Administration.

25. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

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

26. 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)).

27. The Tribunal has considered the applicant’s circumstances as a whole and has given weight to the applicant’s claims of wanting to improve his career prospects in India and that he is studying in a field related that will complement his existing qualifications in the hospitality sector. The Tribunal has also placed weight on the fact the applicant has displayed consistency in his endeavours to complete his current study pathway.  

28. 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.

29. 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

30. 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.

    David Barker
    Member