Shaik (Migration)

[2021] AATA 2967

Shaik (Migration) [2021] AATA 2967 (1 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raheem Shaik

CASE NUMBER:  1935090

HOME AFFAIRS REFERENCE(S):          BCC2019/4787035

MEMBER:Vanessa Plain

DATE:1 July 2021

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 1 July 2021 at 1:40pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Advanced Diploma of Leadership and Management – satisfactory course progression – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 (the Act). The applicant applied for the visa on 24 September 2019. The delegate refused to grant the visa on 26 November 2019.

2. The applicant applied for the visa on 24 September 2019. 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).

4. The applicant appeared before the Tribunal on 1 July 2021 to give evidence and present arguments.  

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

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

   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. The issue in the present case is whether the applicant is a genuine applicant for entry and stay in Australia as a student.

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, which is attached to this decision, 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. A review of the delegate’s decision record reveals that the delegate made their decision, rightfully so, on the basis that evidence of:

    ·Economic circumstances in home country in the form of assets in India

    ·Business ties in home country 

    ·An awareness of visa conditions

    ·Motivation for undertaking the proposed courses 

    ·Career pathway or goal 

    ·A demonstration as to how the courses will lead to greater career opportunities

    was not provided as required to satisfy the genuine temporary entrant criteria in cl 500.212 for the grant of the student visa under the Migration Regulations 1994 (the Regulations).

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

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

    ·An extensive GTE statement (demonstrating, among others, visa condition awareness)

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

    ·Deeds of title and sworn valuations evidencing residential land in India

    ·Documents evidencing the family business in India

    ·Documents evidencing savings and investments in India

    ·Research into the job market in India for management positions  

13. The Tribunal has considered the above mentioned documentation.  The Tribunal notes that this is the applicant’s first student visa and he arrived in Australia in August 2019 and since his arrival, he has completed a Diploma of Leadership and Management and is advanced in his studies in an Advanced Diploma of Leadership and Management which is scheduled to conclude in October 2022.

14. The Tribunal considers that proven course progression is prima facie evidence of a genuine student and the Tribunal places significant weight upon this factor as a significant reason for its determination to remit this matter to the department for further consideration. 

15. In light of the new evidence received which specifically addresses the rightful concerns held by the delegate, the Tribunal is satisfied that the criteria in cl 500.212 of Schedule 2 to the Migration Regulations is met and has concluded that the matter should be remitted for reconsideration

    DECISION

16. 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