Al Raeiss (Migration)

[2018] AATA 5551

Al Raeiss (Migration) [2018] AATA 5551 (19 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rodica Al Raeiss

CASE NUMBER:  1703931

HOME AFFAIRS REFERENCE(S):           BCC2016/3603488

MEMBER:Wendy Banfield

DATE:19 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 19 November 2018 at 8:26pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – ties to home country – two adult sons and a grandchild live in Australia – value of courses to applicant's future – immigration history – spent time in Australia since 2013 – decision under review affirmed

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 Immigration and Border Protection on 13 February 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 October 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of Romania and is currently 62 years old. She first arrived in Australia on 16 December 2013 as the holder of a Subclass 600 Visitor Visa. The applicant has held two further Visitor Visas and has travelled to and from Australia a number of times. Her last visa was granted on 15 August 2016 and the applicant has not departed since then. While in Australia the applicant has completed a General English course and at the time of the hearing, was enrolled in a Certificate IV in Human Resources.

5. The applicant appeared before the Tribunal on 16 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sons, Abdul Rahim and Majed Al Raeiss. The Tribunal hearing was conducted with the assistance of an interpreter in the Romanian and English languages.

6. The applicant was assisted in relation to the review by their registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine student and a genuine temporary entrant for study.

9. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)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 intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

10. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

11. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

12. The applicant submitted evidence regarding the circumstances in her home country and in Australia. The applicant has some family members in Romania including her mother and brother but stated she does not have property or assets there. The applicant’s evidence was that she lived in Syria for 26 years which is where her late husband was from and had only returned to Romania in 2011. She had worked as a hairdresser and gave evidence that she planned to open a business in her home country on her return. These claims were supported by the applicant’s sons who appeared at the Tribunal hearing. The applicant’s two adult sons and a grandchild live in Australia which is the reason for her initial visits. Based on the evidence submitted, the Tribunal accepts the applicant has some ongoing ties to Romania but is not satisfied this is a strong incentive for her to return. Although the applicant said her mother is elderly and her brother has a back complaint, she has nonetheless spent a large amount of time away from her home country since 2013. In addition, the applicant had lived in another country for 26 years as well as spending time on and off in Australia for the last 5 years. Her husband has passed away and her immediate family, her two sons, live in Australia one of them permanently. The Tribunal considers the applicant has ties to Australia which are a strong incentive for her to seek to remain.

13. The Tribunal has considered the value of the course being studied to the applicant’s future. In evidence to the Tribunal the applicant and her witnesses stated she wanted to study Business because of plans for a business in Romania. However, the applicant was enrolled in a Marketing course and then in Human Resources. The applicant has not indicated an intention to seek employment in the field of Human Resources even though the course she has enrolled in is described as being specifically for that purpose. The Course Information for International Students in relation to a Certificate IV in Human Resources at Queen Anne College where the applicant is enrolled states:

    This qualification is suitable for individuals working in a range of human resources management positions. Job roles could include human resources assistants, human resources coordinators, human resources administrators and payroll officers.

14. The field of Human Resources is not related to the applicant’s past employment or to her stated plans of returning to work in the hairdressing/beauty industry. For these reasons, the Tribunal is not satisfied the applicant has enrolled to study for genuine proposes and the Tribunal places weight on the applicant’s circumstances that indicate the Student Visa is intended primarily for maintaining residence in Australia.

15. The applicant’s immigration history indicates she has spent time in Australia since 2013 as a Visitor prior to applying for a Student Visa. The applicant arrived the first time for her son’s wedding and the second time for the birth of a grandchild. Given the length of time the applicant has spent as a Visitor having held three separate visas allowing multiple entries, the Tribunal considers the applicant has applied for a Student Visa in order to extend her stay in Australia rather than for reasons of genuine interest or value to her future.

16. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

17. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

18. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Wendy Banfield
    Member