SINGH (Migration)

[2018] AATA 3762

SINGH (Migration) [2018] AATA 3762 (7 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TAJINDER SINGH

CASE NUMBER:  1617842

HOME AFFAIRS REFERENCE(S):           BCC2016/2724358

MEMBER:Stephen Witts

DATE:7 August 2018

PLACE OF DECISION:  Melbourne

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 07 August 2018 at 2:13pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – Quality of teaching – Practical field placement – Reason for further studies – Intention to open business in home country – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 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 12 October 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 17 August 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 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 the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

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

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 genuinely intends to remain in Australia temporarily.

   Genuine applicant for entry and stay as a student (cl.500.212)

8. 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?

9. 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.

10. 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.

11. At the hearing the Tribunal had a discussion with the applicant regarding issues for consideration outlined in Ministerial Direction 69.

    Background

12. According to the delegate’s decision record, supplied by the applicant, the applicant first arrived in Australia from India on a Tourist visa (FA 600) on 10 July 2016. The applicant enrolled in his courses of study shortly after his arrival on 4 August 2016, and applied for his student visa on 17 August 2016. The delegate refused the applicant’s application for a Student visa on 12 October 2016.

13. According to the applicant he is currently enrolled to study a Diploma of Automotive Management which is due to begin on 29 October 2018 and complete on 23 December 2019.

14. According to the applicant and to the applicant’s PRISMS record (reviewed with the applicant in accordance with section 359AA) since his arrival here the applicant has been enrolled in the following courses: a Certificate III in Light Vehicle Mechanical Technology finished in 2016, a Certificate IV in Automotive Mechanical Diagnosis finished in 2017, and a Diploma in Automotive Technology due to complete on 5 September 2018.

    Circumstances in home country

15. The applicant stated that he arrived in Australia to visit his brother and sister-in-law as a tourist and didn’t have the intention to study at that point.

16. The applicant stated that he finished high school back in his home country and then completed a trade course in electrical welding prior to successfully completing a Diploma of Mechanical Engineering which, he said, did include some automotive subjects.

17. The applicant stated that he has a mother and a father back in his home country who works in a government job. He stated that he talks to his parents every day. The applicant did not indicate that he was having any problems maintaining his personal relationships from here in Australia.

18. There is no significant relevant evidence regarding the following factors indicated by Ministerial Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, political circumstances in the home country, civil unrest in the home country, circumstances in the home country relative to Australia or any other country, and the applicant’s circumstances in the home country relative to others in that country.

    Circumstances and study in Australia and the value of the course to the applicant’s future

19. The applicant stated that he has a brother, who is a permanent resident here in Australia who works in the disability sector and his sister-in-law, also a permanent resident.

20. The applicant stated that he has not been back to his home country since his arrival here in 2016 but has been to Bali on a holiday in 2017.

21. The applicant stated that he lives in Adelaide with his brother and pays no rent and that he works as a taxi driver on weekends where he can earn up to $400AUD per week. He stated that his parents are assisting him in paying for his studies.

22. The Tribunal had a discussion with the applicant regarding his study history here in Australia and the applicant explained that he did originally arrive in Australia as a tourist but decided once here to spend some time with his brother and sister-in-law and study automotive courses which will enable him to open a business in the automotive industry back in his home country. The applicant explained that his Diploma of Mechanical Engineering did include some automotive subjects and that these courses here in Australia were much better than back in his home country. The applicant acknowledged that he could have studied his automotive subjects back in his home country but testified that the field placement here in Australia and the general method of teaching was significantly higher than back in his home country. The applicant stated that he will have done over 700 hours of practical field placement during his course of studies here in Australia.

23. When asked by the Tribunal why he was now studying a Diploma of Automotive Management when he had already studied at diploma level in automotive technology the applicant explained that he wants to go home and open his own automotive business and to do that he needs management skills that would allow him to start his own business and be able to manage a successful business.

24. The applicant testified that after his current course finishes, which he said will finish some months early because of his successful study so far, the applicant will return home to open his own automotive business. The applicant also testified that since being here he has successfully studied his Certificate III and Certificate IV and his automotive technology diploma and that he will also successfully complete his automotive management diploma and will then return home.

25. The Tribunal accepts the evidence of the applicant that he will return home and open his own business back in his home country and that the applicant does genuinely intend to stay in Australia temporarily.

26. 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).

    Conclusion on cl.500.212

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.

    Stephen Witts
    Member