Singh (Migration)

[2018] AATA 4061

Singh (Migration) [2018] AATA 4061 (24 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parteek Singh

CASE NUMBER:  1709776

HOME AFFAIRS REFERENCE(S):           BCC2016/4072046

MEMBER:M. Edgoose

DATE:24 September 2018

PLACE OF DECISION:  Melbourne, Victoria

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 24 September 2018 at 2:56pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – evidence of current enrolment – plans to return home and support single mother – plans to own and operate a restaurant in India – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 499

Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

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 20 April 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 applied for the visa on 2 December 2016. 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.

3. The delegate in this case refused to grant the visas 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 the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. On 30 May 2018 the applicant was invited under s.359(2) of the Act to provide information about his proposed course of study and his entry to stay in Australia as a student. The applicant was informed that if the Tribunal did not receive the information by 13 June 2018, that the Tribunal may make a decision on the review without taking any further action to obtain the information.

5. The applicant responded to the “Request for Student Visa Information under s.359(2) of the Migration Act 1958” on 1 June 2018 (AAT Folio 18-22) and informed the Tribunal that he did not consent to the Tribunal deciding the review without a hearing.

6. The applicant appeared before the Tribunal on 3 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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 intends genuinely to stay in Australia temporarily.

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.

    Background and applicant’s immigration history

13. The applicant is from India and arrived in Australia in September 2014 on a 573 student visa and completed English for Academic Purposes course between October 2014 and January 2015. The applicant was then enrolled to study a Masters of Business Administration between February 2015 and October 2015 which he did not complete. The applicant then enrolled in Certificate III and IV Commercial Cookery courses which he completed between January 2016 and July 2017 through Australian Institute of Technical Training. The applicant then went on to complete a Diploma in Hospitality between August 2017 and February 2018. The applicant is currently enrolled in a Bachelor of Business (Management) course through Cambridge International College that commenced in March 2018 and is due to be completed by 20 December 2020. The Tribunal accepted the applicant’s evidence.

14. At hearing the applicant confirmed the information he had submitted to the Tribunal under the “Request for Student Visa Information under s.359(2) of the Migration Act 1958” when answering question 6 to be an accurate account of his completed courses since arriving in Australia in September 2014. The Tribunal accepts the applicant’s evidence that he has maintained enrolment and completed a range of courses at the certificate and diploma levels and that he is currently in the process of completing a course at the bachelor level.

15. The applicant applied for the Visa on 2 December 2016 and the delegate refused to grant the visa on 20 April 2017 on the basis that the ‘Genuine Temporary’ entrant criterion, or GTE criterion which applies to every student visa, was not met.

16. Before coming to Australia the applicant he completed his year 12 equivalent in 2007, a Bachelor of Commerce between April 2007 and April 2010 and that he had worked in an office part-time for a period of three years and was paid approximately AUD $137 per month. The Tribunal accepts the applicant’s evidence.

17. At hearing the applicant submitted a Confirmation of Enrolment for the Bachelor of Business (Management) through Cambridge International College (AAT folio 68) which the applicant commenced on 26 March 2018 and is due to be completed by 20 December 2020. The applicant stated at the hearing that when he completes his current course on 20 December 2020 he will depart Australia and return to India to find a job and to support his single mother. The Tribunal accepts that the applicant will depart Australia completion of his current course of study and return to India on 20 December 2020 when the applicable put his future career plans in the restaurant business into action.

    The applicant’s circumstances in their home country

18. The applicant informed the Tribunal that he is an only child of a single mother who lives back in India and works for the government. The applicant told the Tribunal that he contacts his single mother on a regular basis via telephone and sometimes uses the social media application WhatsApp.  The Tribunal acknowledges that the applicant has maintained regular contact with his single mother via telephone and through the social media application WhatsApp while living in Australia.

19. The applicant stated to the Tribunal that he has returned to India on two occasions to visit his single mother in November 2015 and November 2017 for a period of one month each time. The Tribunal notes the applicant consistently stated to the Tribunal to the completion of his current course he will be returning to India to support his single mother.

20. The applicant said to the Tribunal that he had not completed his studies back in India because the standard of study in India is not as good as that available in Australia, especially the quality of teaching. The Tribunal accepted the applicant’s response

    The applicant’s potential circumstances in Australia

21. The applicant currently lives in Sunshine with friends and contributes AUD $500 per month towards the household expenses. The applicant currently works at Laikuizi Restaurant 20 hours part-time and is paid AUD $23 per hour. The Tribunal considers the applicant’s part-time job within a restaurant is in line with his future career plans of owning his own restaurant back in India.

22. The Tribunal acknowledges the substantial submission made by the applicant’s agent (AAT folio 72 – 74) that mentioned the applicant’s plans are to return to India at the completion of his current course to open his own restaurant and to support his single mother. The submission also made reference to the applicant’s consistent approach towards his studies since arriving in Australia and that his goal is to return to India where he has a parcel of land on where he will build his future restaurant. The Tribunal accepts the agent’s submission and that it is consistent with the evidence provided by the applicant at hearing.

    Value of the course to the applicant’s future      

23. In his oral testimony to the Tribunal the applicant asserted on a number of occasions that his current course of study a Bachelor of Business (Management) will provide him with the final qualifications, skills and knowledge required for him to build, run and open his own restaurant on the parcel of land that he owns back in India. The applicant stated that the value of his current course will assist him in gaining the required knowledge to operate his own restaurant when he returns to India. The applicant informed the Tribunal that his future remuneration is unknown. The Tribunal accepted the applicant’s response.

24. The Tribunal notes that the applicant has maintained a focused approach towards his studies since arriving in Australia and that his plan for the future is clear and that at the completion of his current course he intends genuinely to depart Australia and return to India.

25. The applicant stated to the Tribunal on a number of occasions that the completion of his Bachelor of Business (Management) course on 20 December 2020 he will depart Australia and return to India to live and support his single mother. The Tribunal accepts the applicant’s consistent response.

26. 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).

27. 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.

28. 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

29. 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.

    M. Edgoose
    Member