Singh (Migration)

[2018] AATA 5437

Singh (Migration) [2018] AATA 5437 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ranjit Singh

CASE NUMBER:  1713213

HOME AFFAIRS REFERENCE(S):           BCC2017/1007099

MEMBER:Mara Moustafine

DATE:2 November 2018

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations.

Statement made on 02 November 2018 at 2:21pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine student who intends genuinely to stay in Australia temporarily – good academic progress – no adverse record of compliance with visa conditions –decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218, 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 5 June 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 first arrived in Australia on 14 September 2014 as a dependent on his wife’s TU 573 Student visa. The applicant applied for a Subclass 500 Student visa on 14 March 2017 to undertake Certificate IV in Business Administration, Diploma of Business Administration and Advanced Diploma of Leadership and Management.

3. 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.

4. According to the Department decision record, a copy of which was provided to the Tribunal for the purposes of the review, the delegate 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 she was not satisfied that the applicant intended genuinely to stay temporarily in Australia. Among other things, the delegate was concerned about the applicant’s immigration history, noting that since his arrival he had not departed Australia; his lack of previous study history and the fact that the applicant had not submitted any documentation or information addressing the Genuine Temporary Entrant (GTE) criterion, including the value of the proposed courses to his career prospects on return to India.

5. The applicant applied to the Tribunal for a review of this decision.  He was assisted in relation to the review by their registered migration agent.

6. Ahead of his hearing the applicant provided to the Tribunal a GTE statement and supporting documents, including certificates of completion and records of results for Certificate IV in Business Administration and Diploma of Business Administration, as well as a Confirmation of Enrolment (COE) for the Advanced Diploma of Leadership and Management (01/10/2018 to 11/09/2019).

7. The applicant appeared before the Tribunal on 1 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 meets the time of decision criterion in cl.500.212.

10. 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?

11. 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.

12. 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.

13. At the hearing, the Tribunal discussed with the applicant the reasons his Student visa had been refused in the context of the GTE criterion, noting that the primary purpose of a Student visa was for an applicant to study and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant his circumstances in India and Australia, his immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.

14. The applicant told the Tribunal that when he arrived in Australia as a dependent applicant on his then wife’s Student visa, his highest qualification was a High School Plus 2 and he also acquired work experience qualifications through his employment with Pizza Hut. After his relationship with his wife broke down, he wanted to study to get some formal qualifications to improve his employment prospects. He had now completed his Certificate IV in Business Administration and Diploma of Business Administration and had commenced studying for his Advanced Diploma of Leadership and Management which he was due to complete next year. The applicant said he wanted to complete this course to enhance his employment prospects as an employee of a major restaurant in India and also because he was thinking of starting his own food oriented business with support from his father.

15. In a discussion about his circumstances in India and Australia, the applicant said he was now divorced from his wife, with whom he has no contact and has no other relationship or family in Australia. He lives with a friend and works part-time for Pizza Hut, earning around $2500 per month. His parents and brother are in India, where his father has a farm and property, which the applicant stands to inherit. His expectation is that, on return to India he will have two sources of income: the family farm business and the food outlet he is thinking of establishing, providing him with an income of IR 60,000 per month.

16. The Tribunal notes that since applying for his Student visa in March 2017, the applicant has demonstrated good academic progress. While the applicant was vague about his future employment plans in India and has no concrete job offer, he emphasised that he would return to India on completion of his current course to pursue his career. He provided a written assurance to this effect after the hearing.

17. 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?

18. 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.

19. 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).

20. In his written statement the applicant highlighted that he did not have an adverse immigration history and that his only intention was to get this student visa so he could complete his study and prepare for a career on return to India. There is no evidence before the Tribunal that the applicant has an adverse record of compliance with visa conditions..

21. 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?

    The Tribunal is satisfied that there are no other matters for consideration relevant to the assessment of the applicant’s genuine intention to temporarily stay in Australia.

22. 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.

23. 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

24. 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.

    Mara Moustafine
    Member