Wong (Migration)

[2019] AATA 1023

Wong (Migration) [2019] AATA 1023 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Julius Candra Wong

CASE NUMBER:  1719148

DIBP REFERENCE(S):  BCC2017/1658933

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          26 February 2019 at 4:30 pm (VIC time)

DATE OF WRITTEN RECORD:                25 March 2019

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.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – change of study direction – Bachelor of Business – childcare – satisfactory academic progress in the past – plans after completion of studies – set up a business – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 August 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 26 February 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISIONS AND REASONS

1. MEMBER:  Mr Wong, the situation is to be eligible for the grant of a student visa applicants must satisfy a range of criteria set out in the Regulations. 

2. You applied for a student visa back in May 2017. Your application was refused in August because the delegate was not satisfied you were a genuine applicant for entry and stay, specifically was not satisfied that you were a genuine temporary entrant and the delegate based that on the fact that you had changed your study direction quite dramatically.  You completed a Bachelor degree and were now interested in childcare, totally different type of work. You had been here a long while and have a sister here and the delegate found you had little incentive to return home.

3. I look at your application and I have looked at your study history which shows that you have continuously studied since you arrived. All of those courses have been progressive and when you completed the Bachelor of Business there is no doubt you completely changed direction.  However, that can happen, people do that, and I believe the story you have told the Tribunal here today.

4. One question I must consider is whether it is your intention to return home at the end of your studies.

5. You told the Tribunal that your mum has worked around the world but she now has a husband and she and your step father live together in Indonesia. You say when you finish your current course it is your intention to go home and to set up a business in childcare or early childhood development. I believe that what you have outlined is a legitimate plan and, therefore, I accept that you are genuine student and a genuine temporary entrant.

6. The tribunal therefore finds that you satisfy clause 500.212 and as you heard me say before today, the tribunal does not grant visas, we are here to review decisions of the Department to refuse visas. 

7. I intend sending this matter back to the Department and telling them that you do satisfy clause 500.212 which is not to be reconsidered. If there is anything else they need to consider before granting you a visa there may be something else but otherwise, you do satisfy this requirement on which the visa was refused and so hopefully that will mean you will be granted a visa which will give you the opportunity to spend the last four or five months finishing your course.  

8. So the decision of this tribunal is to remit the matter to the Department and that decision was made at 4.30 pm on this, the 26th of February, 2019.

DECISION

1. 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.

Tim Connellan

Member