Singh (Migration)

[2020] AATA 3568

Singh (Migration) [2020] AATA 3568 (7 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Agya Pal Singh

CASE NUMBER:  1837301

DIBP REFERENCE(S):  CLF2016/31678

MEMBER:Damian Creedon

DATE:7 July 2020

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 570 Independent ELICOS Sector visa:

·cl.570.222 of Schedule 2 to the Regulations.

·cls.570.223(2)(b) and (c) of Schedule 2 to the Regulations.

·cl.5A208 of Schedule 5A to the Regulations.

·cl.570.224 (public interest criteria 4005) of Schedule 2 to the Regulations.

·cl.570.225 of Schedule 2 to the Regulations.

Statement made on 7 July 2020 at 2:35pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 570 Independent ELICOS Sector visa – Federal Circuit Court remittal –genuine temporary entrant criterion met – enrolment criterion met –COE provided – access to sufficient funds - decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.40A, Schedule 2, cls 570.222, 570.223, 570.224, 570.225, Schedule 5A, cl 5A208

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 on 22 July 2016 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 20 May 2016. At the time of lodgement, Class TU contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which he or she is enrolled or has an offer of enrolment as his or her principal course, and the corresponding subclass for which that type of course has been specified by the Minister under r.1.40A of the Migration Regulations 1994 (the Regulations).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 570 visa. The visa was refused because the applicant did not provide evidence of:

   a.confirmation of enrolment in an ELICOS course;

   b.sufficient financial capacity;

   c.a completed medical assessment; or

   d.adequate arrangements made for health insurance during the period of the applicant’s intended stay in Australia,

   as per cls. 570.222 (ELICOS), 570.223(2)(b) and (c), 570.224 (PIC 4005), 570.225 and 5A 208.

   Background

4. The applicant applied to the Tribunal for a review of the delegate’s decision by application lodged 3 August 2016.

5. By a decision made 6 July 2017 the Tribunal affirmed the delegate’s decision (First Tribunal Decision). 

6. The applicant appealed the First Tribunal Decision to the Federal Circuit Court of Australia (FCCA) by an application filed on 1 August 2017.

7. On 18 December 2018 the FCCA made orders by consent that the applicant’s application be remitted the Tribunal for reconsideration.

   Reconsideration

8. The applicant appeared before the Tribunal on 19 June 2020 and 26 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

10. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The assessment level that applies to the applicant is that which the Minister has specified at the time of the visa application, in relation to each subclass for the kind of eligible passport the applicant holds at the time of decision: r.1.42. In this case, the applicant holds a passport of India. The assessment level for a holder of such a passport for Subclass 570 is assessment level 3.

    Preliminary findings

13. In support of his application the applicant submitted copies of the following documents to the Tribunal:

    a.an Overseas Student Confirmation-of-Enrolment (CoE) for a course of ‘General English’ scheduled to start on 13 July 2020 and end on 6 August 2021;

    b.a Policy Certificate from ‘Medibank OSHC’ for the period 15 June 2020 to 9 September 2021; and

    c.an email from ‘Bupa Medical Visa Services’ dated 26 June 2020.

14. Based on these materials the Tribunal finds that the applicant:

    a.is enrolled in a relevant ELICOS course; and

    b.has appropriate OSHI from a registered healthcare insurer.

15. The Tribunal has also read and had regard to the email from ‘Bupa Medical Visa Services’.  A review of the relevant departmental database shows that the applicant’s medical checks were satisfactory and were submitted to the Department on 20 May 2020.  Accordingly, the Tribunal finds this criterion to also be satisfied.

    Does the applicant have access to sufficient funds?

16. To satisfy the requirements of being a genuine applicant for entry and stay as a student, the Tribunal must also be satisfied the applicant will have access, while holding the visa, to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity.

17. In support of his application to the Tribunal the applicant provided a bank statement from the National Australia Bank showing a balance in excess of AU$43,000 to the credit of a named account holder (Account).  In sworn evidence to the Tribunal the applicant stated that the account holder is his aunt (his father’s sister) and that his aunt will be his financial sponsor during the period of his studies in Australia and that he has genuine access to those funds.

18. In respect of the costs associated with studying a course of General English, the Tribunal has assessed the amount to be as follows:

    (a)On the applicant’s evidence, which the Tribunal accepts, the applicant has already paid AUD$1,800 of the total course fee of AUD$7,800;

    (b)At the applicant intends to stay in Australia for a period of 12 months or more the total amount of living expenses he must show is AUD$21,041;

    (c)Travel expenses, being a one-way ticket for the applicant to return to India on completion of his course of study which is approximately equivalent to the sum of AUD$1,000.

19. In accordance with the relevant instrument, the Tribunal finds that the applicant’s total course fees, living costs, and travel costs for the remaining duration of his course are as follows (AUD$):

Course fees	$6,000.00
Living costs	$21,041.00
Travel costs	$1,000.00
Total	$28,041.00

1. The applicant is therefore required to give evidence that she has sufficient funds available to meet expenses totalling AUD$21,041.00. Further, that evidence must be in a form that satisfies the regulations. In essence, the regulations specify a limited range of evidence of financial capacity.

2. The applicant has provided evidence of the Account (see paragraphs [20] above). The form in which that evidence has been given, that is, a copy of a bank statement issued by the National Australia Bank, meets the requirements of the regulation.

3. The Tribunal considers that the amount held in Account is sufficient to meet the applicant’s costs and expenses during his intended stay in Australia.  It is possible that the applicant’s actual costs and expenses will exceed the level arrived at by the calculations set out above. However, the Tribunal finds that there is sufficient margin in the Account to meet any such overrun that is reasonably foreseeable.

   Is the applicant a genuine applicant for entry and stay as a student??

4. The Tribunal must also be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and any other relevant matter.

5. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

6. 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.

7. The applicant is a 44-year-old Indian national who first arrived in Australia in 2006 as a dependant on his (then) wife’s student visa.  The applicant’s evidence is that the couple divorced in 2014.[1]  The applicant’s evidence to the Tribunal is that he worked to support his wife in her studies from the time of their arrival onshore in 2006 until the couple’s divorce in 2014.

   [1] The applicant provided the Tribunal with a copy of a Divorce Order from the FCCA dated 5 March 2014.

8. The applicant stated in evidence that he did not finally manifest an intention to study in Australia until at or around the time of his divorce.  The applicant agreed with the Tribunal’s description of his manifesting this intention as a ‘fresh start’.  In his submissions to the Tribunal the applicant stated that:

   He decided to pursue the English Language course because on returning to India in 2011 and after his divorce in 2014 he realised that he was only armed with low level qualifications (year 10 and 12) and was not fully skilful and it was important and essential for him to demonstrate knowledge of at least competent English to find above average work in India and this would enhance his prospects of employment upon return to India.

9. When pressed by the Tribunal as to the utility of studying English to enhance his employment prospects in India, the applicant stated that he wished to obtain English language proficiency so as to obtain a job in a ‘call centre’ in India.  When further pressed, the applicant stated to the effect that such jobs were relatively well remunerated and that employers placed a premium on candidates who had English language qualifications earned in English-speaking countries.  The Tribunal found the applicant’s evidence in this regard to be sufficiently persuasive.

10. In respect of his ties to India, the applicant’s evidence is that his father is resident there and that his mother is deceased.  He stated to the effect that his father is aging and approaching retirement and that he feels an obligation to return to ‘look after him’.  He stated that he has two siblings, a brother and a sister, who are both resident in Australia, as is his aunt (his financial sponsor).  In contrast, the applicant stated that he has ‘no commitments’ in Australia, is single and wishes to return to his home country at the earliest opportunity.  The applicant submitted:

    During [his marriage, the applicant’s] wife had applied for a permanent visa and the applicant was a part of that application. If he intended to use that pathway, he would not have gone through the divorce [before] the grant of the permanent visa in Australia. But he did not do that and was truthful during the process...

11. Although it is marginal, in all of the circumstances the Tribunal is sufficiently persuaded that that balance of relative incentives affecting the applicant’s decision-making in this regard is to be resolved in his favour.

12. There is no evidence or information before the Tribunal of any military service or civil or political incidents that would act as a clear incentive for the applicant to remain in Australia.  The Tribunal places some small weight on this factor in the applicant’s favour.

13. There is no evidence before the Tribunal 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.  The applicant’s immigration history does not raise concerns for the Tribunal. 

14. The Tribunal has had regard to all other relevant information provided by the applicant (or information otherwise available to the Tribunal) when assessing the applicant’s intention to temporarily stay in Australia, including information that may be either beneficial or unfavourable to the applicant. 

15. Although the applicant has been onshore for some 14 years the Tribunal is satisfied that until at or around the time of his divorce in 2014 the applicant had not finally manifested an intention to study in Australia.  After the change of his personal circumstances at that time the applicant’s view of his future changed and he settled upon an ‘independent’ career path as a ‘call-centre’ worker in India.  The Tribunal accepts his evidence in this regard, and it also accepts the utility of his proposed course of study to that prospective career.

16. Overall the Tribunal is not persuaded that the student visa programme is 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.

17. On the basis of the above, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student within the terms of cl.570.223(2)(b).

18. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

19. 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 570 Independent ELICOS Sector visa:

    · cl.570.222 of Schedule 2 to the Regulations.

    · cls.570.223(2)(b) and (c) of Schedule 2 to the Regulations.

    ·cl.5A208 of Schedule 5A to the Regulations.

    ·cl.570.224 (public interest criteria 4005) of Schedule 2 to the Regulations.

    ·cl.570.225 of Schedule 2 to the Regulations.

    Damian Creedon
    Member