Singh (Migration)

[2020] AATA 2818

Singh (Migration) [2020] AATA 2818 (15 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jatinder Singh

CASE NUMBER:  1904021

DIBP REFERENCE(S):  BCC2018/3561349

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         15 May 2020 at 10:24 am (VIC time)

DATE OF WRITTEN RECORD:                26 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets the criteria contained in clause 500.211 and clause 500.212 of Schedule 2 of the Regulations.

Statement made on 26 May 2020 at 10:59am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– family ties to home country – significant incentive to return home – genuine interest in study – positive study record –applicant is currently enrolled – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.211, 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 7 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 15 May 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. This is an oral statement of the decision and reasons of the Administrative Appeals Tribunal in case number 1904021, in relation to an application for review brought by Mr Jatinder Singh.

4. He is a citizen of India and seeks review of decision made by a delegate of the Minister, refusing to grant him a student visa.  He is currently 29 years of age.  He applied for his visa on 19 September 2018.  It was refused on 7 February 2019.  He appealed to the tribunal on 21 February 2019 and I am now dealing with that appeal review application.

5. For the visa to be granted, I need to be satisfied that he meets the primary criteria set out in Part 500 of Schedule 2 of the Regulations.  The delegate refused the visa on the basis that the delegate wasn’t satisfied that he was a genuine applicant in accordance with clause 500.212.

6. In this case the issues that arise for consideration for me, as the tribunal Member, are firstly whether he is enrolled in accordance with clause 500.211, and if I’m of satisfied that, whether he is genuine in accordance with clause 500.212.

7. The tribunal convened a hearing on 15 May by phone – that’s today.  The applicant participated by phone, as did an interpreter in the Punjabi and English languages to assist the tribunal.

8. There were a number of documents filed beforehand, including a completed Request for Student Visa Information form, which was filed on 20 April 2020.  There’s also a COE relating to a Diploma of Hospitality Management, where the course provider is Australia Vocational Education and Training Academy, and that COE reference code is 9FDC5799.  He started this course on 14 April of this year, and it finishes on 8 November of this year.

9. He also provided a genuine temporary entrant letter.  It is effectively a typewritten statement explaining why he wishes to pursue this course.

10. He also provided a completed Certificate III and Certificate IV in Commercial Cookery, which were the precursors to the Diploma course.  I have also extracted from the PRISMS database, his history of enrolments in Australia to date, and that corroborates his claims that he has successfully completed the Certificate III and IV in Commercial Cookery and that he is currently studying the Diploma of Hospitality Management.

11. I formally find that he meets the criteria contained in clause 500.211. 

12. On the issue of whether he is genuine, I’m satisfied that he’s a genuine student, primarily because since he originally applied for his visa and it was refused, he nevertheless persisted with his studies in Australia, and has now got an excellent record of successfully completing that which he has enrolled in and set out to complete.

13. On that basis I’m also satisfied that he intends to comply with the conditions of his visa.  I’m also satisfied that he intends to stay in Australia temporarily.

14. I refer to the concerns of the delegate, which refer to how he originally arrived in Australia on a visitor visa to visit his brother in 2018, but then decided to pursue studies here.

15. He is still relatively young.  And he also referred to, in his evidence today and also his statement, related studies which were at a relatively lower level in Aviation and Hospitality.  And so he is pursuing similar studies here, but at a more advanced level.

16. I’ve taken into account that he has strong family ties in India, particularly his wife and a seven year old child, who he has not seen since he has arrived here almost two years ago.  That it is a reasonable decision for somebody at this stage in the applicant’s life to come to Australia initially as a visitor – visiting his brother – surveying the landscape and then after making an assessment, changing his mind from being a mere visitor and applying for a student visa.  It is a perfectly acceptable decision and I accept the applicant’s evidence in this regard.

17. I’ve considered all other matters in relation to Direction No 69 and they all fall in favour of the applicant.

18. The tribunal remits the application for a student temporary class TU, subclass 500 visa for reconsideration with a direction that the applicant meets the criteria contained in clause 500.211 and clause 500.212 of Schedule 2 of the Regulations.

    DECISION

19. The Tribunal remits the decision under review with the direction that the applicant meets the criteria contained in clause 500.211 and clause 500.212 of Schedule 2 of the Regulations.

    Dr Jason Harkess
    Member