Syed (Migration)

[2022] AATA 4292

Syed (Migration) [2022] AATA 4292 (31 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zakir Hussain Syed

REPRESENTATIVE:  Miss Zana Serdar

CASE NUMBER:  1935143

HOME AFFAIRS REFERENCE(S):          BCC2019/2989019

MEMBER:Vanessa Plain

DATE:31 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl 500.212 of Schedule 2 to the Regulations

Statement made on 31 August 2022 at 7:26pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – arrived on a Visitor visa – change in migration direction – class attendance – academic progress – document provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 Home Affairs to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 12 June 2019. The delegate refused to grant the visa on 4 December 2019.

2. The delegate made the decision, in whole or substantial part, on the basis that evidence of:

   ·Educational qualifications obtained in the applicant’s home country

   ·Employment history in the applicant’s home country

   ·An investigation of study options in the applicant’s home country

   ·Ownership of assets in the applicant’s home country

   ·An explanation as to why the applicant is not undertaking vocational studies in the applicant’s home country

   was not provided as required to satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a subclass 500 student visa.

3. The delegate’s decision record reveals that the applicant is an Indian national who first arrived in Australia in December 2019 utilizing a Visitor Visa.  The delegate held concerns that the applicant’s primary motivation in applying for a Student visa was to secure ongoing residence in Australia, rather than due to a genuine desire to undertake the course of study.  The delegate was not satisfied that the applicant had sufficiently explained his reasons for his change in migration pathway so shortly after arriving in Australia on a Visitor Visa.  For these reasons, coupled with the lack of information referred to above, the delegate determined that the applicant was not a genuine entrant.     

4. The applicant provided the following documents to the Tribunal:

   • COE for an Advanced Diploma of Leadership and Management   

   ·    An extensive GTE statement

   ·    Response to request for student visa information (s 359(2) of the Act)

   ·    A suite of academic documents evidencing course attendance and grade attainment and course completion in India and in Australia   

   ·    Bank statements and deposit statements  

   ·    Affidavit of financial support

5. The Tribunal has considered the documents produced by the applicant. 

6. The Tribunal finds that the applicant is not utilising the student migration program to obtain long term residency.  Although the Tribunal notes that the applicant has changed his migration intention shortly after arriving on a Visitor Visa, at the time of this decision the documentation before the Tribunal clearly establishes that the applicant has, since changing his migration direction, attended class and progressed academically.  This is the applicant’s first student visa application and the documents produced demonstrate that he has an understanding of his course contents, education provider, educational objectives, living circumstances in Australia and visa conditions.  He contends that his course is not available to his knowledge in India.  He has strong familial ties to his home country in the form of his wife and parents and he has modest financial ties to his home country in the form of cash and safe deposits.  The Tribunal places weights on these factors as being indicative of the applicant being a genuine student who intends genuinely to stay in Australia temporarily for the purposes of study. 

7. The Tribunal further finds that the applicant has in his GTE statement reasonably demonstrated the value of the course to his future to an extent that outweighs the current cost of completing the course.  It is further satisfied that the applicant does not have an adverse immigration history in Australia.     

8. In light of the new evidence received and the findings set out above, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   decision

9. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

   ·cl 500.212 of Schedule 2 to the Regulations

   Vanessa Plain
   Member