SHEK (Migration)

[2018] AATA 4064

SHEK (Migration) [2018] AATA 4064 (24 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SHING SHEK

CASE NUMBER:  1702732

HOME AFFAIRS REFERENCE(S):           BCC2016/3016763

MEMBER:Wendy Banfield

DATE:24 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas 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 24 September 2018 at 4:19pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – evidence of course enrolment – strong academic progress – family connections – mother Australian resident – does not live with mother in Australia – credible witness – straightforward and consistent evidence – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.212, 500.611

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 February 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 11 September 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 it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of Hong Kong and is currently 23 years old. He came to Australia most recently on 22 June 2016 as the holder of a Subclass 601 Visitor Visa. Prior to his visa ceasing the applicant applied for a Student Visa with the intention of studying English and a Bachelor of Business. At the time of the hearing, and of the decision in this case, the applicant is enrolled in a course of study.

   Evidence of the visa applicant

5. The applicant gave evidence he came to Australia most recently in 2016 having travelled to Australia in the past as a visitor. He came as visitor as his mother resides here and she wanted him to come. The applicant said he was raised by his father in Hong Kong and he has siblings and other relatives still there. He said his father supports him financially and shares accommodation with others.

6. The applicant said he is enrolled in a university foundation course after which he wants to go to UTS to study a Bachelor of Accounting. When asked about career plans, the applicant said he will find a job in Hong Kong. Regarding the Department’s decision and the applicant’s inadequate provision of evidence, the representative claimed they had provided evidence as per the Department’s request and the decision appeared to have been made on a different basis.

7. The applicant submitted his results from the UTS English and Foundation Course, as well as his attendance and payment documentation. He was able to state the subjects currently being studied and his belief that an Australian qualification will be beneficial to his future. In addition, the applicant said he wants to study in an English speaking environment as it will enhance his prospects after qualification.

   Evidence of the Representative

8. The representative said the applicant is a very good student whose mother and step-father will ensure he continues to study. He said if he does not, they will send him back to Hong Kong. It was also claimed the applicant’s study in Australia will be good for the country as well as for him.

9. The applicant appeared before the Tribunal on 26 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 as a student.

13. 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?

14. 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.

15. 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.

16. The applicant provided evidence that prior to coming to Australia he had completed high school and lived with his father in Hong Kong. He has siblings and extended family that continue to reside there. His mother is an Australian resident who has remarried and she encouraged the applicant to study here after he came as a visitor. According to the applicant, he has not lived with his mother and he currently shares accommodation with other people.

17. The applicant has completed an English course and UTS Foundation Studies. At the time of decision the applicant is enrolled in a Bachelor degree. The evidence provided in relation to the UTS Foundation course shows the applicant is a successful student who has achieved very good grades and clearly has the capacity to complete tertiary studies. The Tribunal accepts such a qualification in an English speaking environment will be beneficial to the applicant’s future.

18. 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?

19. 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.

20. 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).

21. There is no evidence before the Tribunal that the applicant has not complied with visa conditions. He has continued studying while awaiting the outcome of the application for review and appears to be a genuine student.

22. 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).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

23. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

24. The Tribunal has taken into account the applicant’s straightforward and consistent evidence in this case as well as his successful completion of pre-tertiary studies which indicate he is a successful student with potential to do well. He has the support of his mother and step-father in Australia as well as his father and extended family in Hong Kong.

25. 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.

26. 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

27. 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.

    Wendy Banfield
    Member