Shirdashtzadeh (Migration)

[2020] AATA 3563

Shirdashtzadeh (Migration) [2020] AATA 3563 (19 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maryam Shirdashtzadeh

CASE NUMBER:  1905446

DIBP REFERENCE(S):  BCC2018/3620859

MEMBER:Amanda Upton

DATE AND TIME OF

ORAL DECISION AND REASONS:         19 June 2020 at 11:04 am (VIC time)

DATE OF WRITTEN RECORD:                9 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets cl500.212(a).

Statement made on 09 July 2020 at 8:58am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–receipt of university scholarship – study gap explained –family and social ties to home country – genuine applicant for entry and stay as a student–decision under review remitted

LEGISLATION
Migration Act 1958, s 359
Migration Regulations 1994, Schedule 2, cl 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 19 February 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 19 June 2020 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

3. The applicant applied for the visa on 24 September 2018, at the time of the application class TU contained two subclasses, 500 and 590, 590 is Student Guardian visa, the primary visa applicant applied for the visa to undertake study in Australia, does not claim to meet the criteria for a subclass 590 Guardian visa.

4. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of clause 500.212, the schedule 2 to the migration regulations because they did not consider the applicant to be a genuine temporary entrant to Australia here to study.

5. The applicant appeared before the Tribunal on 19 June 2020, to give evidence and present arguments.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration of a criteria for a subclass 500 Student visa as set out in part 500 of schedule 2 to the regulations.

6. The primary criteria in clause 500.211 to 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 presence case is whether the applicant is a genuine temporary entrant for entry and stay in Australia as a student.

7. Considering whether the applicant satisfies clause 500.212(a) the Tribunal must have regard to direction number 69.  The direction requires the Tribunal to have regard to a number of specified factors in relation to the applicant’s circumstances in her 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 a study visa, or for visas to other countries, and previous travel to Australia or other countries. 

8. The direction indicates that the factors should not be used as a checklist but rather intended only to guide decisionmakers.  When considering the circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion. 

9. The applicant in this case is an Iranian female who first arrived in Australia on 26 September 2014.  She has not returned to her home country since her arrival in Australia.  Prior to arriving the applicant had obtained a Master of Science in Microbiology and a Bachelor of Science.  She had worked as a lab technician, research assistant, English instructor, and lecturer at (indistinct) Uni.  Since being in Australia she has completed a Master of Engineering Science and is currently undertaking a Doctor of Philosophy in Engineering.  The course will conclude in October 2022.  The Tribunal notes that in order to obtain entry to this course the applicant had to undergo an interview process, and as a result has also obtained a full scholarship in relation to her study provided by the university.  The Tribunal takes this into account.

10. The applicant has supplied a number of documents in support of her application including her response to the section 359(2) request, a number of academic documents evidencing her past qualifications, references with respect to her previous work, a letter evidencing her applications to other universities for her doctorate and a submission authored by her explaining the circumstances.  The Tribunal has had regard to all of those documents and the evidence given by the Tribunal in making its decision today. 

11. With respect to the applicant’s circumstances in Iran the Tribunal views it as that the applicant has submitted the courses are not offered in Iranian universities and the Tribunal notes that her previous role as a lecturer in a university in Iran (indistinct) had that knowledge.  The Tribunal accepts what she says in relation to it.  Also noting that her Doctorate of Philosophy and Engineering is potentially a unique or rather - not a course commonly offered across the board in university level.

12. The applicant’s family for the most part live in Iran.  One of her sisters lives in Malaysia, the applicant’s husband is in Australia with her although not a secondary applicant to this visa application, he is the holder of his own student visa.  The applicant keeps in regular contact with her family by the usual means of overseas students and travellers.  She has ties to her home community through work affiliation with university and a charity organisation.  The applicant has no financial ties or assets in either Australia or Iran.  The applicant has not returned to her home country since arriving in Australia.  The applicant has previously worked in Australia as a product technician for CSL.  She is no longer undertaking that employment due to her study commitments.  The applicant raises no concern about civil or political unrest in her home country. 

13. The Tribunal considers that the applicant has family and social ties to her home country in the nature of her family, although the Tribunal balances this against the fact that the applicant’s husband is also with her Australia.  In effect, the Tribunal considers that the applicant has community and social ties both in Australia and in Iran and on balance they are relatively equal, although the applicant having her husband with her potentially is an incentive for her to remain in Australia.

14. With respect to any evidence of the visa program being used to circumvent the migration program, the courses that the applicant has undertaken are at a high level, they are related and progressive.  The Tribunal notes that the applicant is completing her doctorate on a full scholarship from Deakin University and that there was a process involved in obtaining that.  The Tribunal takes note of the fact that the university would not have considered the applicant or given the applicant such a scholarship if they did not consider her to be a student genuinely interested and who was going to complete her study.

15. The applicant had applied for a number of universities, it seems from the evidence that she was quite clear as to the course, the subject matter that she wished to do.  There was a study break.  The Tribunal notes that the applicant was not involved enrolled in a course of study for a period of time after the completion of her Masters.  The delegate raises as a concern with respect to whether or not the applicant would comply with her visa conditions.  The applicant has explained that study gap to the Tribunal saying that she started to look for a PhD project that suited her, and during that time needed to fund her living arrangement.  She worked and found the appropriate course where she could do a project that was relevant to her and got the position at Deakin University. 

16. Whilst the Tribunal does consider that the period of time that the applicant was not enrolled in a course of study was significant, and in some circumstances may indicate an intention to not comply with visa conditions, and whilst this was not the basis of the decision of the delegate, it is referred to.  The Tribunal notes that concern, however, given the evidence that the applicant has given to the Tribunal today, the Tribunal is satisfied that the applicant intends to complay with her visa conditions and intends to remain as a student studying her doctorate.

17. With respect to the value of the course to the applicant’s future, at large the course that she is enrolled in and completing is progressive and consistent with her previous studies.  It is also consistent with her previous work history.  The applicant has told the Tribunal that she requires the qualification to obtain a full-time position as a lecturer, she had previously worked part-time as a lecturer in Iran and wishes to get a permanent position.  The Tribunal accepts the applicant’s evidence in relation to this matter.  The course that she is doing clearly has relevance to her past study and her past working history.

18. The Tribunal accepts on the basis of that information that the course that the applicant is doing does add value to her future, that it potentially will enable her to obtain a full-time position at a university, which will be an increase in remuneration and also a career progression. 

19. The Tribunal has regard to the applicant’s immigration history, there is no evidence of other visas, or refuses, or cancellations.  The applicant has explained the gap in studying to the Tribunal and the Tribunal is satisfied that the applicant is going to comply with her visa conditions.  There is no further evidence for the Tribunal to consider in relation to the applicant’s application.

20. In consideration of the matters above, the Tribunal finds that the criteria for the grant of a subclass 500 Student visa are met, the Tribunal finds that the applicant is a genuine temporary entrant to Australia, here to study temporarily.  The Tribunal does note that the amount of time that the applicant has spent in Australia and proposes to spend in Australia, may on the face of it evidence an intention to remain in Australia on a permanent basis.  However, the Tribunal gives consideration to the nature of the courses that the applicant is undertaking and the time it takes to do those courses.  And in this circumstance does not consider that that time is an indication that the applicant is not a temporary entrant.

21. Accordingly, the Tribunal is satisfied the applicant is a genuine applicant for entry and stay as a student as required by clause 500.212, and given the above findings finds that the criteria for the subclass 500 visa are met as such. 

    DECISION

22. The Tribunal remits the decision under review with the direction that the applicant meets cl 500.212(a).

    Amanda Upton
    Member