Shatskiy (Migration)

[2018] AATA 5444

Shatskiy (Migration) [2018] AATA 5444 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Philipp Shatskiy

CASE NUMBER:  1810934

HOME AFFAIRS REFERENCE(S):           BCC2018/1097490

MEMBER:Adrienne Millbank

DATE:8 November 2018

PLACE OF DECISION:  Brisbane

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 08 November 2018 at 4:41pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – credible witness – financial and family circumstances in home country – study intentions – trades-level qualifications in auto mechanics – value of proposed courses – career plans – intention to comply with visa conditions – 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 on 11 April 2018 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 was born in the Russian Federation in 1989 and is 29 years old at the time of decision. He first arrived in Australia on 28 November 2015 on a Student (Subclass 572) (Vocational Education Sector). He successfully completed English Language Programs for International Students, an Advanced Diploma of Management (Human Resources) and an Advanced Diploma of Business. He applied for the visa on 7 March 2018, proposing to study Certificate III in Heavy Commercial Vehicle Mechanical Technology; Certificate IV in Automotive Mechanical Diagnosis; and Diploma of Automotive Technology courses, extending his stay in Australia to 13 March 2020.

3. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

4. 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). The Delegate was not satisfied that the applicant is a genuine temporary entrant.

5. Evidence of the applicant’s financial assets in Russia was not provided to the Delegate, and the applicant has no dependent family members. The Delegate concluded that he had little incentive, apart from his parents, to return to his home country. The applicant holds Bachelor and Master Degrees in Engineering from his home country, and because his proposed study is at a lower level, the Delegate did not consider it would add significant benefit to his future. The Delegate concluded that the applicant might be attempting to utilise the Student visa program as a means to extend his stay in Australia.

6. The applicant appeared before the Tribunal on 6 November 2018 to give evidence and present arguments.

7. Information and evidence was provided to the Tribunal that was not available to the Delegate, and the Tribunal had the opportunity to question and observe the applicant at hearing. The documentary evidence he provided in support of his claims was convincing. The applicant was articulate (at the time of decision fluent in English), and persuasive at hearing, and the Tribunal accepted his testimony.

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 intends genuinely to stay in Australia temporarily as a student.

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.

    Does the applicant intend genuinely to stay in Australia temporarily?

11. 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.

12. 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.

13. Regarding the applicant’s financial and family circumstances in Russia, the applicant provided a letter signed by a bank branch manager in Krasnodar, his home city, confirming he has an account there which on 19 October 2018 held a balance of around AUD 6,300. He provided also a certified translation of a certificate of state registration certifying he is the registered owner of an apartment in Krasnodar, purchased on 3 September 2015.

14. The applicant acknowledged that he has not returned to Russia since arriving in Australia in 2015, but advised that he is close to his parents and communicates with them regularly. He pointed out that his mother visited him in Australia from 17 October 2016 to 15 January 2017, and indicated that he has plans to visit his family in Russia in April 2019.

15. Regarding the value of his proposed courses to his future, the Tribunal asked the applicant at hearing to elaborate on explanations provided in his written statements as to why, having a Masters in Electronic Engineering from a Russian university, he chose to pursue trades-level qualifications in auto mechanics in Australia. The applicant in response explained how he and his family lived in the south of Russia, the country’s primary area of agricultural production; how there is an oversupply of university-trained engineers in Russia, where tertiary education has been free; how the production of modern, heavy agricultural equipment has lagged in his country as a legacy of communism; how producers are choosing more expensive overseas equipment; and how there is a shortage of skilled English-speaking qualified mechanics among the companies that sell, maintain and repair the equipment. He provided evidence in the form of graphs of average salaries over the year October 2017 – September 2018 for Electrical Engineers and Auto Mechanics in Russia, showing that auto mechanics earned around 15,000 rubles a month more than engineers over this period.

16. In a written statement provided to the Tribunal the applicant stated ‘Considering my fluent English, my education both Russian and Australian, I will be a welcome hire for (companies dealing in heavy agricultural equipment) and there are a lot of them in my home area. I plan to advance my career in this way’. At hearing, the applicant elaborated that he has aspirations beyond being an ordinary mechanic. He advised that as an all-rounded English-speaking specialist, he would pursue openings at higher levels, such as service engineer, or manager.

17. The Tribunal asked the applicant why, if he always intended to pursue a career in engineering and auto mechanics in Russia, as claimed, he undertook Advanced Diploma courses in Business and Management. The applicant explained that he enrolled in a Certificate III in Heavy Commercial Vehicle Mechanical Technology at TAFE Queensland Gold Coast in January 2016, but that this course was cancelled by the provider. He explained that he was living with his aunt on the Gold Coast and at the time, and lacked the confidence — and a car — to pursue the course in Brisbane, and so decided to do management and business courses, available in the area, that he thought would benefit his career, instead.

18. The applicant described research he undertook on course providers, including their workshop facilities, before selecting the Oceania College of Technology to pursue his Certificate III in Heavy Commercial Vehicle Mechanical Technology; Certificate IV in Automotive Mechanical Diagnosis; and Diploma of Automotive Technology. He advised at hearing that he has completed half of the units for his Certificate III course, and is satisfied regarding the level and competency of the teaching. A Certificate of Attendance, dated 19 October 2018, was provided by Oceania College of Technology, certifying that the applicant is progressing satisfactorily in the course and his fees are up to date. The Tribunal is satisfied, on the evidence provided, that the applicant is a conscientious student and takes his studies seriously.

19. Regarding his living circumstances in Australia, the applicant advised that he has lived with his aunt on the Gold Coast; that his parents have assisted him with tuition and living fees; and that he has worked for the last three years, for two days a week, at a Caravan business named Vansite Manufacturing, based in Arundel, as the business’s ‘in house 12 Volt electrical engineer’. Evidence was provided in the form of a bank statement that the applicant has around $40,000 in an Australian bank account. Written references were provided by the owner and managers of the business, advising that the applicant is employed on a part-time basis and is a highly valued, competent employee and colleague. Written character references were also provided by fellow students and friends, attesting to the applicant’s honesty and reliability. 

20. The applicant advised that he has not applied for any other visas to enter or remain in Australia. He stated that while he is grateful to and gets along well with his aunt, and has friends in Australia, he is also close to his parents and long-term friends in Krasnodar, where he has his apartment. He repeated that the career path he has mapped out for himself is in his home country.  He confirmed that he has no reason not to return to Russia. He advised that at 29, he was above the age for military service.

21. The applicant advised that he visited Japan, for a holiday, from 1 – 12 June 2018, but has not travelled otherwise internationally. There is no evidence before the Tribunal to indicate that the applicant has not complied with his visa conditions in Australia or in other countries.

22. As noted above, the Tribunal found the applicant a convincing and compelling witness at hearing, and accepted his testimony regarding his study intentions and career plans.

23. 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?

24. 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.

25. 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). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

26. The applicant is over 18 years of age, and has no dependents. In his written statement provided to the Tribunal, the applicant stated ‘throughout my stay in Australia I have demonstrated model behaviour and never breached any laws’. There is no information before the Tribunal to indicate that the applicant has any intention of not complying with conditions attached to his visa. The evidence, including written references and the applicant’s stated intentions at hearing, indicates that he has satisfactorily completed all his previous courses; that he has complied with all his previous visa conditions; and that he will comply with any future visa conditions.  

27. 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).

28. No other claims were made by the applicant or information available to the Tribunal, either beneficial or unfavourable to the applicant, relevant to his genuineness as an applicant for entry and stay as a student, or his intentions regarding compliance with any conditions subject to which the visa is granted.

29. Having considered the evidence and circumstances of the applicant, the Tribunal is satisfied that he is a genuine applicant for entry and stay as a student as required by cl.500.212.

30. 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

31. 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.

    Adrienne Millbank
    Member