Torres Gutierrez (Migration)

[2022] AATA 4033

Torres Gutierrez (Migration) [2022] AATA 4033 (14 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Osmin Torres Gutierrez

REPRESENTATIVE:  Ms Kirsty Ann Ross (MARN: 1684817)

CASE NUMBER:  2119735

HOME AFFAIRS REFERENCE(S):          BCC2020/1254901

MEMBER:Vanessa Plain

DATE:14 November 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 14 November 2022 at 12:45pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – period of non-enrolment unexplained to department – enrolment at lower level than required by visa conditions – mental health and treatment – current attendance and progression – plans for business in home country – value of course to applicant’s future – 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 25 March 2020. The delegate refused to grant the visa on 9 December 2021.

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

   ·Ownership of assets in the applicant’s home country

   ·Financial capacity

   ·Business plans

   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 applicant appeared before the Tribunal on 18 October 2022 to give evidence and present arguments. 

4. The hearing was conducted with the assistance of an interpreter in the English and Spanish languages.

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

6. The delegate’s decision record reveals that the applicant is a Mexican man who first arrived in Australia on 27 July 2015 utilizing an initial Student Visa (subclass 574).  The delegate held concerns that the applicant had an unexplained study gap as he was not enrolled in a course for a period of time and had not produced evidence of compelling or compassionate reasons for his non enrolment. The delegate was further concerned 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.  For these reasons, coupled with the lack of information referred to above, the delegate determined that the applicant was not a genuine entrant

7. In advance of the hearing the Tribunal received the following documents directed to addressing the deficiencies set out by the delegate in the decision record, as follows:

   ·COE for Certificate III & IV in Commercial Cookery and a Diploma of Hospitality Management

   ·GTE statement of the applicant

   ·A Response to Request for Student Visa Information

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

   ·Letter of reference from a Senior Graduate Research Officer at the University of Melbourne

   ·Application to Deakin University

   ·Police report

   ·Psychologist report

   ·TEQSA report

   ·Therapist report

   ·Bank statements

   ·Business plan

   ·Letter of reference from employer

   ·Legal submissions  

   ·The delegate’s decision record

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

9. The applicant stated at the hearing that he realises that he is studying at a lower level and that this was not permitted on the terms of his original visa.  He tried to keep studying at PhD level, however, he suffered a complete mental breakdown for which he has had extensive medical assistance.  It caused him to revaluate his life.  He tried enrolling at another university to continue his PhD but he had no success.  It has taken him substantial time with the help of a therapist to fully recover, but he is now attending class and progressing in his studies.

10. 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 s study gap, it has had regard to the medical documents submitted and the applicant’s oral evidence and is satisfied that the applicant has compelling reasons for his period of non-enrolment and for this reason, ought to be excused from breaching a visa conditions pertaining to enrolment.  The incident was isolated as pertains to a period in the applicant’s life when he was suffering from a mental breakdown. 

11. At the time of this decision the documentation before the Tribunal clearly establishes that the applicant is now attending class and progressing academically.  The documents produced demonstrate that he has a thorough understanding of his new course contents, has researched his education provider in Australia, has modest financial ties to his home country and has expressed his plans for a business in his home country utilising the skills obtained from his studies.  The Tribunal places weight 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. 

12. 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. 

13. The Tribunal is further satisfied that there is no information before the Tribunal to suggest that the applicant has an adverse immigration history in Australia.     

14. 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

15. 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