SHARMA (Migration)

[2018] AATA 3159

SHARMA (Migration) [2018] AATA 3159 (12 July 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr ROHIT SHARMA

CASE NUMBER:  1619728

DIBP REFERENCE(S):  BCC2016/1030300

MEMBER:  Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          12 July 2018 at 1:57 pm (VIC time)

DATE OF WRITTEN RECORD:               31 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets cl.500.212.

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant criteria – Satisfactory course progress – Career plans related to studies – Decision under review remitted for reconsideration

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2 cls 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 November 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).

1. At the hearing on 12 July 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. Mr Sharma to be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the Regulations.

1. You applied for a student visa on 10 March 2016 and your application was refused on 3 November 2016 because the delegate was not satisfied you were a genuine temporary entrant. To be a genuine temporary entrant, you must be both a genuine student and it must be your intention to stay here temporarily.

1. Your study history provides significant concerns. You came here on a 573 visa, enrolled to study a Bachelor of Commerce, which you appear to have studied for only one semester, having passed two of four units, before you dropped that to study a Certificate IV in Accounting.  Your enrolment in that course was cancelled for unsatisfactory course progress. You completed six of 13 units in that course and then you have had multiple enrolments in Certificate III, Certificate IV and a Diploma of Hospitality. You started studying the Hospitality in May 2016.  The period from October 2013 to May 2016 is very questionable. However, in your favour since then, you have appeared to have studied consistently and continued to pass. You have achieved a Certificate III in Commercial Cookery and a Certificate IV in Commercial Cookery.

1. It concerns me that you get a job and you study on the weekends so that you can work however, the fact that you have maintained study for the last few years and managed to pass your courses, satisfies me that you are a genuine student.

1. You say that when you finish this Diploma course that you are enrolled in, it is your intention to return home and to start a restaurant business and you certainly seem to have made some plans along those lines, so I am prepared to accept that you are a temporary resident and will go home at the end of those studies, because I find those two things in your favour.

1. The tribunal does not grant visas. We review decisions of the Department to refuse visas.

1. I will send your case back to the Department and tell them that I believe you satisfy the genuine temporary entrant requirements and they will therefore decide whether there is anything else they wish to consider. But, in the normal course of events, that would generally indicate, if it gets sent back from here, that you would be granted a visa.

1. I will send it back to them and tell them that you satisfy the requirements. I wish you luck in completing your course and going home and setting up your business.

1. Thank you for your time here today. Thank you, Mr Bhambi. The hearing is concluded.

DECISION

1. The Tribunal remits the decision under review with the direction that the applicant meets 500.212.

Tim Connellan Member