1502441 (Migration)

[2015] AATA 3419

1502441 (Migration) [2015] AATA 3419 (10 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Luis Alberto Benavides Zapata

CASE NUMBER:  1502441

DIBP REFERENCE(S):  BCC2014/2824843

MEMBER:Adrian Ho

DATE:10 September 2015

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 572 Vocational Education and Training visa:

·cl.572.223(2)(b) of Schedule 2 to the Regulations.

Statement made on 10 September 2015 at 6:20pm

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 Immigration on 30 January 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. Where used in this decision:

   a.COE refers to Certificate of Enrolment;

   b.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   c.VET refers to Vocational Education and Training;

   d.The Department or Immigration refers to the Department of Immigration and Border Protection; and

   e.IELTS refers to the International English Language Testing System.

3. The applicant applied for the visa on 25 October 2014. At the time of lodgement, Class TU contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which he or she is enrolled or has an offer of enrolment as his or her principal course, and the corresponding subclass for which that type of course has been specified by the Minister under r.1.40A of the Migration Regulations 1994 (the Regulations).

4. In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolments in the VET sector.

5. The delegate decided the applicant is not a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted and any other relevant matter, as required by cl.572.223(2)(b). 

6. The applicant appeared before the Tribunal on 30 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

7. For the following reasons, the Tribunal has concluded that the[matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, as the applicant proposes to study cookery in the VET sector and the subclass that may be granted is Subclass 572.

   Is the applicant a genuine student having regard to intention to comply and other relevant matters?

9. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted and any other relevant matter, as required by cl.572.223(2)(b). 

10. The applicant gave frank and transparent evidence at hearing and the tribunal finds him to be a credible witness.  He displayed a very poor understanding of visa criteria and visa conditions in general. 

11. PRISMS records support his claim to have completed his English course in September 2014.  He then continued study, but not in a registered CRICOS course.  He was studying to take the IELTS test to achieve a score of 4.5 in each test component so he could gain admission to the cookery courses he wanted to study.  He explained to the tribunal that his agent had originally obtained enrolment for him in business courses without his knowledge, which was never his intended subject of study.  He has consistently maintained that position through this review process, along with his position that he always wanted to study cooking, and the tribunal accepts this.

12. That course of action is a breach of conditions 8202 and 8516; however, the tribunal accepts that the applicant’s transparent explanation that he was not aware that he was breaching visa conditions.  No adverse inference is therefore drawn from these breaches with regard to his stated future intentions.

13. The tribunal also accepts his explanation that he was poorly advised by his agent that he should not study after this present visa application was refused and should instead await the outcome of the tribunal’s review.

14. The transparency of the applicant’s evidence at hearing extended to his concession that he has married an Australian woman and has applied for a partner visa.  That is an admission that might be thought to be damaging to his prospects of meeting the criterion here in issue.  Nonetheless, he was open with the tribunal, which is a major part of why the tribunal finds him to be a credible witness.

15. The tribunal discussed with him his future plans.  He indicated that it was the immediate plan of the couple to live in Australia and for him to use skills in cookery to open a food van business.  He did not know where they might live in the future.  The tribunal accepts his claim that even if he were granted a partner visa, he would complete his studies in cookery because Australian authorities and employers do not accept his Colombian qualifications.

    A pathway to permanent residence

16. A question arises as to what inference to draw from the applicant’s partner visa application.  That pathway is one that leads to permanent residence.  Despite his poor understanding of migration laws, the applicant knows this. 

17. He has an immediate plan to live with his wife in Australia.  If he is not granted a visa to remain, he will consider living overseas with his wife.

18. He seeks a student visa in order to study cookery.  For the reasons above the tribunal finds his intention to study in that area is genuine.

19. The question is whether his application for a partner visa, and his aspiration to live in Australia with his wife, are incompatible with the temporary nature of entry and stay as a student.

20. In the case of applicants with pending permanent parent visa applications made offshore who wish to visit, the Department’s own written policy draws a distinction between the intention inferred from the permanent visa application on foot, and a shorter-term intention attaching to the visitor visa application (PAM3, Genguide H):

    46.2     Special arrangements for applicants in the parent migration queue

    In this context, when deciding a visitor visa application made by a person with a queued parent migration application, under policy, the existence of a permanent migration application and an obvious intention to eventually reside permanently in Australia is not grounds to find that the applicant does not meet the "genuine temporary stay" criterion - see section 7 The genuine temporary stay requirement.

    Instead, officers should regard this as a longer term intention and focus on the applicant's short term intentions when assessing the "genuineness" criterion in assessing visitor visa applications from parents.

    Officers are encouraged to consider granting applicants outside Australia who are in the parent queue a Tourist stream visa with 5 year travel period, 12 month stay and multiple entry so the parent can visit their family for longer periods on regular occasions. However, these applicants should be counselled that conditions 8558, 8501 and 8503 will be applied to their visa.

21. The criteria for a visitor visa also require that a person genuinely intends to stay temporarily in Australia: cl.600.211. 

22. The making of a partner visa application is a legitimate pathway for the applicant.  The tribunal accepts that the applicant applied for a partner visa because he thought it appropriate to his circumstances after marriage and if granted the visa he does not yet know whether his stay in Australia will be more temporary in nature, or more permanent in nature. 

23. The tribunal considers that his intentions with regard to the partner visa application may be distinguished from his intentions to study cooking on a temporary basis in like manner to parents seeking temporary visits to Australia while their permanent visa applications are being processed.  The tribunal considers Department written policy to be a sensible way to resolve the competing inferences underlying concurrent temporary and permanent visa applications. 

24. For these reasons, the tribunal does not infer from the applicant’s partner visa application that he has intentions which are incompatible with being a genuine applicant for entry and stay as a student.

25. Overall the tribunal finds the applicant to be a person who is earnest in his plans to study but who has suffered from poor insight into the visa regime and from poor advice.  This has led him to inadvertently breach visa conditions of which the tribunal accepts he had no proper understanding.  The tribunal therefore discounts the weight placed on the breaches of conditions.

26. For the reasons explained above the tribunal finds that the applicant is a genuine applicant for entry and stay as a student within the terms of cl.572.223(2)(b).

27. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

28. 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 572 Vocational Education and Training visa:

    ·cl.572.223(2)(b) of Schedule 2 to the Regulations.

    Adrian Ho

    
    

    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    572.223(1)     The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant meets the requirements of subclause (2).

    (2)An applicant meets the requirements of this subclause if:

    (a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.