Sharma (Migration)

[2022] AATA 4036

Sharma (Migration) [2022] AATA 4036 (16 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sahil Sharma

REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)

CASE NUMBER:  2113555

HOME AFFAIRS REFERENCE(S):          BCC2020/1679061

MEMBER:Vanessa Plain

DATE:16 November 2022

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 16 November 2022 at 1:13pm

CATCHWORDS
MIGRATION – Student (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – isolated and minor gaps in enrolment – current attendance and progression – strong financial and family ties to home country – value of course to applicant’s future in employment market – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212, Schedule 8, condition 8202

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 (Cth) (the Act). The applicant applied for the visa on 4 June 2020. The delegate refused to grant the visa on 27 September 2021.

2. The delegate made the decision, in whole or substantial part, on the basis that evidence of:

   ·Ownership of assets in the applicant’s home country

   ·Information relating to previous study in Australia between 2018 and 2020

   ·An explanation as to how the Australian qualification will assist the applicant in achieving their career goal in comparison to a qualification which could be acquired domestically

   ·An explanation as to how the Australian qualification would benefit their future remuneration level significantly enough to outweigh the significant cost and commitment the courses would require while in Australia

   was not provided as required to satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a subclass 500 student visa.

3. The applicant appeared before the Tribunal on 10 October 2022 to give evidence and present arguments. 

4. The hearing was conducted with the assistance of an interpreter in the English and Hindi languages.

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

6. The delegate’s decision record reveals that the applicant is an Indian man who first arrived in Australia on 22 January 2016 utilizing an initial Student Visa.  The delegate held concerns that the applicant had a gap in his study history and on that basis has not complied with visa condition 8202 attached to his student visa. The delegate was further concerned that the applicant’s primary motivation in applying for a Student visa was to secure ongoing residence in Australia, rather than due to a genuine desire to undertake the course of study.  For these reasons, coupled with the lack of information referred to above, the delegate determined that the applicant was not a genuine entrant

7. In advance of the hearing the Tribunal received the following documents directed to addressing the deficiencies set out by the delegate in the decision record, as follows:

   ·COE for a Diploma in Early Childhood Education 

   ·GTE statement of the applicant

   ·A Response to Request for Student Visa Information

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

   ·Deed of title and valuation

   ·Bank statements

   ·The delegate’s decision record

8. The Tribunal has considered the documents produced by the applicant. 

9. The applicant stated at the hearing that he is progressing well in his studies presently and he struggled in the past due to serious family issues.  He was studying a Diploma of Hospitality Management in 2018 and has provided a detailed written timeline which describes his brief study gaps. He believes that he will be successful in his current studies, which are going  well. 

10. The Tribunal finds that the applicant is not utilising the student migration program to obtain long term residency.  Although the Tribunal notes that the applicant has some minor study gaps, it has had regard to the reason for the gaps and the detailed written evidence provided by the applicant and it is satisfied that these are isolated incidents.  At the time of this decision the documentation before the Tribunal clearly establishes that the applicant has attended class and progressed academically in recent times.

11. This is the applicant’s third student visa application and the documents produced demonstrate that he has a thorough understanding of his course contents, has researched education providers in Australia and abroad, has substantial financial ties to his home country, has strong familial ties to his home country and is aware of his living expenses and visa conditions in Australia.   The Tribunal places weight on these factors as being indicative of the applicant being a genuine student who intends genuinely to stay in Australia temporarily for the purposes of study. 

12. The Tribunal further finds that the applicant has in his GTE statement reasonably demonstrated the value of the course to his future to an extent that outweighs the current cost of completing the course, by articulating how the skills to be acquired via his studies will assist him in the employment market.

13. The Tribunal is further satisfied that there is no information before the Tribunal to suggest that the applicant has an adverse immigration history in Australia.     

14. In light of the new evidence received and the findings set out above, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

    decision

15. 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