Singh (Migration)

[2017] AATA 1616

Singh (Migration) [2017] AATA 1616 (7 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gursewak Singh

CASE NUMBER:  1612920

DIBP REFERENCE(S):  BCC2016/1744249

MEMBER:Wendy Banfield

DATE:7 September 2017

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 573 Higher Education Sector visa:

·cl.573.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 07 September 2017 at 11:34am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Genuine student – Applicant unaware of course enrolment cancellation – Temporary enrolment in another course – Unfortunate personal circumstances – Delays in enrolment process

LEGISLATION

Migration Act 1958, ss 65, 359AA, 499

Migration Regulation 1994, Schedule 1, Schedule 2, cl 573.223

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 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 to the Department of Immigration for the visa on 16 May 2016. The delegate decided to refuse to grant the visa on 26 July 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.223 of Schedule 2 to the Regulations because he had not been enrolled and studying for approximately 12 months and was found not to be a genuine applicant for entry and stay as a student.

4. The applicant appeared before the Tribunal on 9 June 2017 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 represented in relation to the review by his registered migration agent.

   The hearing

6. The applicant confirmed he had previously had his student visa cancelled but that decision was overturned by the Tribunal in a previous case.

7. The applicant first came to Australia in November 2012 to undertake a Diploma course leading to a Degree. Before leaving his own country he had completed Year 12 equivalent at high school. The applicant said his visa had been cancelled because he was not enrolled in his main course of study. In November 2015 his previous enrolment had been cancelled but the applicant said he never heard about it from the college, only when he received correspondence from the Department.

8. In accordance with s.359AA of the Migration Act the applicant was invited to comment or respond to the reasons for refusal in the Department’s decision. The information put to the applicant was that he did not undertake any study for a period of 12 months. He said that he was studying but was not enrolled in his main course. He clarified that he was not enrolled in a Bachelor or Master’s degree. At that time, he was studying an Advanced Diploma of Business. The Tribunal referred the applicant to the period between October 2014 and May 2015. He said he was studying at college but because of his personal circumstances, a gap was created.

9. The applicant’s previous Tribunal case was on 24 March 2017 and a decision was made to overturn the Department’s determination to cancel the applicant’s visa due to a breach of visa conditions on 3 April 2017. The facts of the cancellation matter are relevant to the current review because of the applicant’s personal circumstances that led to him breaching his visa conditions.

10. The applicant said the course he did was meant to finish in October 2014 but was delayed until December that year. He said that was a Diploma of Accounting and he intended to then take an Advanced Diploma. The initial fee was $1600 that needed to be paid to process the admission. The applicant said after he lodged the fee, but he was then told he had to make his application through his agent. The applicant claimed he explained he was an onshore student but was told it was the policy for him to apply through his agent.

11. The applicant confirmed he is currently studying a Bachelor of Accounting course full-time at Universal Business School Sydney. The course normally has 24 subjects but the applicant was granted credit for 7 subjects. He expects to complete the remainder of the course in 18 months’ time, after which he wants to return to his own country. His plans in India are to work as a chartered accountant as well as helping in the family agricultural business. The applicant said he does not have family in Australia while in India he has parents and extended family.

    Submission by the representative – Ramtin Towdiee

12. It was claimed the applicant went through a series of exceptional circumstances that prevented him studying for a period of time and these events were corroborated at the previous cancellation hearing before the Tribunal. Mr Towdiee pointed out the Department refused the application on the basis of the previous cancellation prior to the Tribunal’s decision in that matter and without the benefit of the applicant’s explanation.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573.

15. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that 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)     …

16. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

17. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

18. The Tribunal has considered the evidence provided by the applicant during the hearing in relation to his visa cancellation, as well as during the current review, and has taken those matters into account in this case. The Tribunal agrees with the findings of the Member in the review of the decision to cancel the applicant’s student visa that there were a range of hurdles that caused difficulty for him in maintaining continuous study and enrolment in the higher education sector. Also, that the requirement to deal with education institutions through pre-existing arrangements with agents caused delays for the applicant and problems enrolling elsewhere.

19. It appears there were circumstances beyond the applicant’s control such as a house fire that destroyed his belongings and his mother’s illness that led to problems with his enrolment and studies. The applicant is now enrolled in higher education and is studying towards a Bachelor of Accounting. He has provided details of the duration of the course and his future intentions.

20. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.573.223(1)(a).

21. As the Tribunal has found the applicant meets the requirement of cl.573.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

22. 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 573 Higher Education Sector visa:

    ·cl.573.223(1)(a) of Schedule 2 to the Regulations.

    Wendy Banfield
    Member