Woznowski (Migration)

[2022] AATA 3540

Woznowski (Migration) [2022] AATA 3540 (26 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Krzysztof Woznowski

REPRESENTATIVE:  Mr Ireneusz Lasocki (MARN: 0102034)

CASE NUMBER:  2117432

HOME AFFAIRS REFERENCE(S):          BCC2020/2746697

MEMBER:Vanessa Plain

DATE:26 September 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 26 September 2022 at 12:24pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – business ownership in Poland – academic progress to benefit future career – financial and family ties in the home country – maintaining ongoing residence in Australia – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 2 December 2020. The delegate refused to grant the visa on 5 November 2021.

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

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

   ·Ownership of assets in the applicant’s home country

   ·Business plan 

   ·Understanding of the employment market in Poland

   ·An explanation as to how the Australian qualification will assist the applicant in achieving their career goal in comparison to a qualification which could be acquired domestically

   ·An explanation as to how an overseas qualification will assist the applicant’s future remuneration and career prospects

   ·An explanation as to how the Australian qualification would benefit their future remuneration level significantly enough to outweigh the significant cost and commitment the courses would require while in Australia

   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 26 September 2022 to give evidence and present arguments. 

4. The hearing was conducted with the assistance of an interpreter in the English and Polish 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 Polish national man who first arrived in Australia in 2006 as a dependent Student Visa holder.  The applicant’s former wife was the primary student visa holder.  The delegate held significant concerns that the applicant had been onshore since 2006 utilising various temporary visas as a dependant visa holder, ranging from student visas to temporary working visas and had not provided reasons for his failure to undertake studies during this period.  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:

   ·Confirmation of Enrolment for a Certificate IV in International Trade and a Diploma of Business which is scheduled to conclude in February 2023

   ·GTE statement of the applicant

   ·Statutory declaration signed by the applicant on 14 September 2022

   ·A Response to Request for Student Visa Information

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

   ·Bank statements

   ·Deed of title

   ·Documents lodged in the Family Court of Australia pertaining to the applicant’s divorce and property settlement with his former wife

   ·Legal submissions

   ·Business plan

   ·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 has been in Australia since 2006, but as a dependant upon his former wife’s student visa and working visas.  It was their joint intention to come to Australia in 2006 for the purpose of the wife undertaking study in Australia.  It was not the applicant’s intention to study before the break-up of his marriage in 2019.  After the break-up of his marriage, the applicant reassessed his priorities and decided that he would benefit from studies in business for the purpose of running his business in Poland.  The course that the applicant is currently studying will assist him manage the production side of his business in Poland and he will finish it early next year having already completed his earlier course.  He said that the breakdown of his family unit caused immense difficulty and this was the driving reason behind his decision to undertake study for the first time in Australia.    

10. The applicant stated further that it is important to him obtain the Diploma, because there are only a few months left before his completes the qualification and it is important to him to return to Poland as his business and parents are in Poland.  His parents and extended family are in Poland, only his son remains in Australia on a student visa.  He contended that he is an honest person and has submitted extensive documents which support his comments regarding his change in intention to study and the breakdown of his family unit.

11. The applicant’s agent made submissions to the Tribunal. He submitted that the applicant’s life has taken a turn after the breakdown of his marriage and family life and he now finds himself having to take over a family business which requires management skills.  That is why his case is a genuine one, notwithstanding the length of time he has been in the country.    

12. The Tribunal finds that the applicant is not utilising the student migration program to obtain long term residency.  This is a unique case, as it is indeed true that the applicant has been onshore for an unduly long period of time.  However, on the facts of this case, the Tribunal does not find that the length of time the applicant has been onshore to be indicative of an intention to remain in Australia on a more permanent basis.  Although the Tribunal notes that the applicant has been onshore since 2006 using temporary visas, at the time of this decision the documentation before the Tribunal clearly establishes that the applicant has attended class and progressed academically since making the decision to undertake study.  This is the applicant’s first primary student visa application and the documents produced demonstrate that he has a thorough understanding of his course contents, has researched education providers in Australia and has obtained good academic results to date.  The Tribunal is persuaded by the applicant’s sworn evidence as to the reason for his failure to study before 2019, namely, that it was not his intention at the time and his decision to study came about after the unfortunate breakdown of his marriage.

13. The Tribunal further notes that the applicant has demonstrated reasonable financial ties to his home country, strong familial ties to his home country and is aware of his living expenses and visa conditions in Australia.   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. 

14. The Tribunal further finds that the applicant has in his GTE statement, Response and statutory declaration reasonably demonstrated the value of the course to his future to an extent that outweighs the current cost of completing the course, by articulating how the particular subjects in his Diploma of Business will assist him in the production side of his business. 

15. 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.     

16. 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

17. 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