Singh (Migration)

[2024] AATA 3064

Singh (Migration) [2024] AATA 3064 (10 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navjot Singh

REPRESENTATIVE:  Mr GURVINDERJEET SINGH PARMAR (MARN: 1808842)

CASE NUMBER:  2208866

HOME AFFAIRS REFERENCE(S):          BCC2022/613565

MEMBER:Damian Creedon

DATE AND TIME OF

ORAL DECISION AND REASONS:         10 April 2024 at 9:15 am (WA time)

DATE OF WRITTEN RECORD:                5 August 2024

PLACE OF DECISION:  Perth

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(a) of Schedule 2 to the Regulations.

Statement made on 05 August 2024 at 11:26am

CATCHWORDS  
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant has maintained his enrolment and has successfully progressed in his studies – applicant is enrolled in a course of study – applicant has provided the Tribunal with a CoE – proposed course of study will be of value to the applicant’s stated business plans – strong family ties to his home country – satisfied that the applicant is a genuine applicant for entry and stay as a student – decision under review remitted 

LEGISLATION
Migration Act 1958, s 65

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 Home Affairs on 31 May 2022 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 10 April 2024 the Tribunal made an oral decision. The following is the written record of the reasons for that decision.

STATEMENT OF DECISION AND REASONS

1. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 satisfies cl.500.212(a).

2. 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?

1. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, 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.

2. 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.

3. In Kumar v Minister for Immigration and Border Protection[1] the Full Court of the Federal Court held that the Direction requires that, in reaching the state of satisfaction required by cl 500.212(a), the decision maker should turn his or her attention to each factor during the decision-making process and consider whether and how that factor should be brought to bear in reaching that decision.[2]  The Court went on to note that:

   [The Direction] does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case.  Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.[3]

   [1] [2020] FCAFC 16 (24 February 2020).

   [2] Kumar, Para [82].

   [3] Kumar, Para [96].

Overview of evidence

1. The applicant is a 26-year-old Indian national who first arrived in Australia on 15 January 2020 as the holder of a Student (TU-500) visa.

2. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

1. The Tribunal also had before it a number of documents provided by the applicant.  Save as required for the purposes of this decision it is unnecessary to list these documents in detail.  Relevant documents will be referred to as required.

2. The applicant’s Provider Registration and International Student Management System (PRISMS) record shows since his arrival onshore he has successfully completed the following courses:

Course Name	Date Commenced	Date Completed
Certificate III in Light Vehicle Mechanical Technology	18/07/2022	30/06/2023
Certificate IV in Light Vehicle Mechanical Technology	17/07/2023	14/01/2024

1. The applicant provided the Tribunal with an Overseas Student Confirmation-of-Enrolment (CoE) for a Graduate Diploma of Management (Learning) which he commenced on 5 February 2024 and is due to complete on 2 February 2025

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

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

Analysis and findings

1. The Tribunal found the applicant to be a credible and truthful witness who, where possible, supported his oral statements with documentary evidence.  The Tribunal found the applicant’s oral evidence to be consistent throughout and in giving his evidence he did not convey an impression of concoction or recent invention.

2. The essence of the applicant’s evidence was that he suffered cultural shock upon his arrival in Australia which negatively impacted his first attempts at study here at the university level; he stated:

   I don’t know whether it was new culture for me, or it was new, but because it was a very new experience for me as an Indian – because I have never, like, travelled to another country, Australia was my first one.  So I did face a little bit of – I got a little bit of uncomfortable while studying here because the culture was very new to me, and I felt a bit of burden on my head because everything was so new to me.  The culture was whole English.  I did not face any language problems, but it was new to me.  So yes, I was bit of feeling very burdened doing the master of sustainable development.  I thought that this course has a lot of pressure than I expected.

3. The applicant stated that he then changed his course to attempt an MBA, however “the same thing happened”. When pressed as to his decision to then undertake studies in the Vocational Education and Training sector, the applicant stated:

   While I was doing my master’s in business MBA… then the things started to go a little off for me.  I’d wanted a little break and I did not want my studies to be, like, as complicated as these courses.  And also I went on a break, discussed a lot of things, saw the culture, saw the Indian culture, which way the culture is heading to.  And saw the Indian market is pretty growing in the vehicle sector.  So I already had an interest in the vehicles and automotive, because like I talked, I come from an agricultural family.  My father is well established, and he does has all the equipment we need in the farming and agricultural stuff.  So we do have tractors… and every stuff you need.  So I had a decent knowledge of these engines, these automotive things.  So, like, I had a lot of interest for cars and them as well.  So I was researching for the courses and all.  Also I have one or two friends here who were running – who were running good businesses in this sector as well.  So I thought on my own, why not go there where you feel comfortable, and, like I said, I had a fair knowledge in automotive as well.  So I went to do Certificate III and IV in automotive.

4. The applicant’s evidence is that, after consulting with his family, he decided to focus on achieving vocational level qualifications.  Since undertaking that study pathway, the evidence available to the Tribunal is that that applicant has maintained his enrolment and has successfully progressed in his studies.  The Tribunal does not consider this to be mere coincidence and places weight on these factors in the applicant’s favour. 

5. In respect of his future career path, the applicant stated to the effect that he plans to return to his home country to commence work in the vehicle maintenance industry, eventually with plans to run his own business. 

6. The Tribunal is mindful, in assessing whether a study pathway will assist an applicant to obtain employment or improve employment prospects in their home country, that it must allow for reasonable changes to career or study pathways.  In all of the circumstances the Tribunal is persuaded that the applicant’s change in study and career pathway is reasonable in the circumstances that he found themself in.  The Tribunal finds support for this conclusion in the applicant’s academic success since commencing his new pathway in July 2022.

7. Overall, the applicant’s evidence did not persuade the Tribunal that he has ties to Australia, either social or economic, sufficiently strong to act as an overwhelming incentive for him to remain in Australia at the conclusion of his studies.

8. There is no evidence before the Tribunal of any civil unrest or military service commitments in the applicant’s home country that would act as a clear incentive for the applicant to remain in Australia. There is also no evidence that the applicant, or a relative of the applicant, has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation.  Overall, the applicant’s immigration history does not raise concerns for the Tribunal. 

9. The Tribunal has had the benefit of speaking to the applicant which has enabled it to obtain more information regarding his circumstances and genuineness in the presentation of his evidence.  The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has previously completed the courses claimed in Australia, has said he will return home on completion of his studies, has strong family ties to his home country and all the other matters he has raised.

10. Overall, the Tribunal is persuaded that the student visa programme is not being used by the applicant to circumvent the intentions of the migration programme.  For the reasons outlined above the Tribunal accepts that the applicant is undertaking his current study or future study for the reasons he claims.

11. Based on the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. It follows that the applicant meets cl.500.212(a).

12. 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.

13. 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

1. 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(a) of Schedule 2 to the Regulations.

Damian Creedon
Member