Sham (Migration)

[2018] AATA 3242

Sham (Migration) [2018] AATA 3242 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr King Tong Sham

CASE NUMBER:  1706667

HOME AFFAIRS REFERENCE(S):           BCC2016/4164797

MEMBER:Warren Stooke AM

DATE:12 July 2018

PLACE OF DECISION:  Melbourne

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 12 July 2018 at 3:14pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – satisfactory progress in studies – length of course in Australia – no family in Australia – potential job opportunities in home country – 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 Immigration and Border Protection on 15 March 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 9 December 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 did not accept, in the absence of a response, that the changes in course studies demonstrated that the applicant was a genuine temporary entrant for the purposes of stay and study.

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

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

6. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

7. At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate’s decision of 15 March 2017, a copy of which was provided to the Tribunal by the applicant. He stated that he understood the delegate’s decision and accepted that he had not responded to the delegate’s request for information to satisfy the delegate regarding genuine temporary entrant status for stay and study.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 temporary applicant for entry and stay as a student in Australia.

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

10. 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.

11. The applicant is a 24 year old student from Hong Kong, who arrived in Australia on 10 November 2010 and was granted a Student (Class TU subclass 573) visa for the purposes of study at the university level. In the period since commencing studies in Australia the applicant has successfully completed studies in the following courses:

    §English (ELICOS)

    §Certificate IV in University Foundation Studies

    §Diploma of Health Sciences

    §Bachelor of Exercise and Sports

12. The applicant provided evidence to the Tribunal that he is currently undertaking a Bachelor of Nursing at ACU Melbourne and the contemporary results for Semester 2 in 2018, which concluded in June 2018, demonstrate that the applicant has successfully passed all subjects. As such, the Tribunal notes that the applicant is achieving satisfactory progress in his studies

13. The applicant gave evidence that he intends to return to Hong Kong to pursue a career in Nursing once he has finished his course and qualified. Whilst, the applicant’s initial studies were in the health science and sports science fields, he now has a desire to engage in work which is therapeutic, which he stated explained the shift to nursing.  

14. The applicant stated that to be qualified in nursing in Hong Kong would take 5 years of study, whereas the course can be covered in three years in Australia, including recognition of prior studies.

15. The applicant expects to complete his course in December 2019 and he stated he is not intending to apply for a 485 visa and that his plans for now are to go back to Hong Kong, where he will need to complete exams to obtain registration. His intention is to become a Nurse in the professional health care industry in Hong Kong.

16. The applicant stated that he supports himself in Australia with funding from his parents and by working in the retail industry in Melbourne at Highpoint, where he is paid $24.00 per hour and works for 15 hours per week.

17. The applicant does not have any family in Australia and his parents in Hong Kong are involved in their own business in the export and import industry.

18. The applicant stated that there are no reasons that would preclude the applicant from returning to Hong Kong and he confirmed to the Tribunal that it was not his motivation to remain in Australia permanently. He stated that he wanted to take care of his family and that it would be easy to get a job with his qualifications. He also stated that the purpose of doing the course at ACU was to find a job in his country, where a registered nurse also has accreditation to work in the UK and NZ.

    Does the applicant intend genuinely to stay in Australia temporarily?

19. 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.

20. 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.

21. Further, the potential job opportunities in Hong Kong, the UK and NZ suggests that the has alternative incentives to leave Australia upon completion of his course, which he stated was his intention.

22. 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?

23. 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.

24. 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).

25. The Tribunal is satisfied that there is no evidence before the Tribunal to indicate that the applicant has not complied with prior visa conditions.

26. 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).

    Conclusion on cl.500.212

27. 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.

28. 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

29. 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.

    Warren Stooke AM
    Member