Younas (Migration)

[2022] AATA 1650

Younas (Migration) [2022] AATA 1650 (13 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shahzaib Younas

CASE NUMBER:  2116071

HOME AFFAIRS REFERENCE(S):          BCC2021/1766997

MEMBER:Vanessa Plain

DATE:13 May 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 13 May 2022 at 1:09pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – reasonable academic progress to benefit future career – applicant changed to vocational courses – employment prospects through foreign qualifications – significant family ties in home country – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 359
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 11 September 2021. The delegate refused to grant the visa on 28 October 2021.

2. The delegate made the decision on the basis that evidence of:

   ·Employment circumstances in home country

   ·Financial circumstances in home country

   ·A GTE statement

   ·An explanation as to why the applicant wishes to study in Australia, why they chose their education provider, or why they selected their current course of study

   ·Reasons as to why the current courses will assist the applicant obtain employment in their 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 a young man from Pakistan who arrived in Australia on 11 March 2020 utilizing a subclass 476 visa. The delegate was concerned that the applicant had obtained a Bachelor of Chemical Engineering in his home country, but had not utilised that qualification at home, in circumstances where he was now seeking to undertake vocational level studies in Australia.  The delegate considered that while it is not uncommon for an applicant to re-educate themselves or make a change in plans, they found that it is not consistent with the behaviour of a genuine student to seek a change in study pathway in the applicant’s circumstances.     

4. The applicant appeared before the Tribunal on 29 July 2021 to give evidence and present arguments.

5. In advance of the hearing, the Tribunal received the following documents:

   • COEs for a Diploma of project Management and an Advanced Diploma of Program Management

   ·    Signed GTE statement

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

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

   ·    Title to residential property

   ·    Letter of reference from former employer

   ·    Research into the job market in the applicant’s home country 

6. At the hearing, the applicant stated that he arrived in Australia utilising a 476 visa and has been attending his classes.  In his written statement, his stated that his primary reason for wishing to study the current course in Australia was to increase his prospects of obtaining employment through having foreign qualifications and obtaining practical knowledge to complement his previous theoretical study.    

7. The Tribunal finds that the applicant is not utilising the student migration program to obtain long term residency.  The evidence before the Tribunal clearly establishes that the applicant has, since changing his study pathway, attended class and progressed academically and is now well on the way to completing his course by mid 2023.  This would bring his time in Australia to approximately 3 years which is not an unduly long period of time and the Tribunal notes that this visa application is the applicant’s first student visa application, he is a young man and has clearly articulated valid reasons for wishing to undertake study in Australia, that is, to improve his employment prospects.  The Tribunal accepts his evidence.    

8. The Tribunal places significant weight upon the documents produced by the applicant in advance of the hearing.  The substance of the documents plainly establishes that the applicant has researched employment options in his home country, has financial ties to his home country, has strong family ties to his home country and has demonstrated the value of the courses to his future.  These are strong indicators of a genuine student who intends genuinely to stay in Australia temporarily for the purposes of study. 

9. Based on his written statements, the Tribunal is further satisfied that the applicant is aware of his living conditions in Australia, the contents of his course and course objectives and the visa conditions which apply to his student visa.  It is further satisfied that the applicant does not have an adverse immigration history in Australia.     

10. 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

11. 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