Albert (Migration)

[2019] AATA 1887

Albert (Migration) [2019] AATA 1887 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Natacha Wendy Albert
Mr Jean Garry Guilliano Albert
Miss Marie Kelly-Ann Nolwen Albert
Master Jeffrey Ryan Albert

CASE NUMBER:  1714513

HOME AFFAIRS REFERENCE(S):           BCC2017/1148017

MEMBER:M. Edgoose

DATE:14 March 2019

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 14 March 2019 at 12:02pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – intention to depart Australia after completion of current course – break of lease letter from leasing agent – three non-refundable one-way airline tickets back home – decision under review remitted

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 28 June 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 24 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. The applicants appeared before the Tribunal on 11 February 2019 to give evidence and present arguments. The hearing was adjourned on 11 February 2019 as the Tribunal requested that a French interpreter be present. The Tribunal received oral evidence from Tara Shenee Draper on 11 February 2019.

5. The hearing resumed on 22 February 2019 and was conducted with the assistance of an interpreter in the French and English languages.

6. The applicants were assisted in relation to the review by their registered migration agent.

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

   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 intends genuinely to stay in Australia temporarily.

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.

    The applicant’s immigration history

12. The Tribunal has considered clause 13 and 14 of Direction 69 with respect to the applicant’s immigration and travel history.

13. The applicant’s immigration history to Australia dates back to 26 August 2016 when she was granted a TU 500 student visa to study an English course which was valid until 26 March 2017. The applicant arrived in Australia for the first time on 31 August 2016 with her sister. On 1 February 2017 the applicant’s husband and two teenage children aged 17 years and 13 years as dependants on her student visa. The applicant informed the Tribunal that she had not depart Australia since arriving on 31 August 2016. There is no evidence before the Tribunal to suggest that the applicant has not complied with her visa conditions.

14. The applicant completed the IELTS preparation course and applied for her current visa while onshore with her family on 24 March 2017. The application for the student visa was refused on 28 June 2017.

15. The applicant informed the Tribunal that she travelled on tourist visas to China on two occasions, Malaysia on three occasions, Reunion Island on one occasion, Hong Kong on one occasion and India on one occasion and that she complied with the migration laws of those countries. The Tribunal accepts the applicant’s evidence.

    The applicant’s circumstances in their home country

16. The applicant informed the Tribunal that the Hairdressing and Beauty Therapy course is offered in Mauritius however claimed the courses in Mauritius are worthless and are not delivered with the same quality.

17. The extent of the applicant’s personal ties to her home country is her mother, sister and brother who live back in Mauritius and a sister that is in Australia. The applicant’s father passed away over 25 years ago. The applicant’s mother is 62 years of aged and is now retired. The applicant contacts her mother, sister and brother almost every day Facebook Messenger, WhatsApp and Viber.

18. The applicant stated the Tribunal that she owns property back in Mauritius and that their family home is built on a floor above her mothers and her husband still has the family house that he grew up in. They also have a share in the house that was owned by her grandparents. It is a cultural tradition that the eldest of the family gets a bigger share and the applicant is the oldest in her family. The houses are in an industrial area so companies are always interested in purchasing the properties for a good price.

19. The applicant only completed school to the equivalent of Year 9 in December 1995 and completed a short Foundation MS Office Applications course between January 2010 and March 2010. The applicant ran a small business which closed down and the remaining stock was sold before coming to Australia. The applicant stated that her husband worked back in Mauritius as an Air Conditioner Technician and he was paid a salary of between AUD1000 and AUD1230 per month.

20. The applicant informed the Tribunal that she has no issues of concern, military service commitments or political and civil unrest back in Mauritius. The Tribunal accepts the applicant’s response.

    The applicant’s potential circumstances in Australia

21. The applicant has significant ties within Australia, most notably her husband and two teenage children who are dependants on her visa. The applicant’s sister, husband and their two children are also in Australia on a student visa. The applicant’s mother’s uncle and two cousins are Australia citizens. 

22. The applicant informed the Tribunal that she currently works 20 hours per week part-time as a cleaner and earns AUD1000 per week and that her husband works in a hotel doing maintenance 20 hours part-time per week and is paid between AUD1000 and AUD1200 per fortnight.

23. The applicant submitted to the Tribunal her husband’s Australian Tax Office assessment for the year ended 30 June 2018 (AAT Folio 76) where he earned a taxable income of AUD28219. The applicant currently lives in Noble Park with her husband and two children and the rent is AUD1650 per month. The applicant informed the Tribunal that her monthly living expenses are AUD7850. The applicant does not receive any financial support from her home country.

24. The applicant submitted to the Tribunal a Confirmation of Enrolment which was created on 8 March 2017 for a Diploma of Beauty Therapy (AAT Folio 79) through Academic Australia which commenced on 30 April 2018 and the course will end on 14 April 2019 at a cost of AUD12000. The Tribunal notes that no further COE’s were submitted at the time of this decision by the applicant. The applicant confirmed at hearing that she has no further enrolments.

25. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of the applicant’s PRISM records. The Tribunal explained to the applicant what the PRISM database is, and further explained that, according to the PRISM records, the applicant’s had current Confirmation of Enrolment. The Tribunal explained to the applicant why this information was relevant to the review. It explained to the applicant the consequences of the Tribunal relying on the information. The Tribunal confirmed with the applicant that the applicant understood the information and how the information was relevant to the review, and the Tribunal advised the applicant that the applicant could comment on or respond, or seek additional time to comment on or respond. The applicant did not elect additional time be granted to the applicant, and the applicant chose to comment at the hearing. The applicant said that the information as presented to the applicant, namely that the applicant’s current Confirmation of Enrolment was correct. The applicant stated the some of the information on PRISMS was not accurate.

26. The witness submitted a Statutory Declaration to the Tribunal dated 24 October 2017 (AAT Folio 74) which stated that she is a teacher at Academic International and is a qualified Hairdresser and that the applicant is one of her “good students”.

27. The witness said to the Tribunal on 11 February 2019 that she can see that the applicant has some frustration with the COE’s and the academic progress that has been discussed in the hearing. The applicant is a dedicated student and has tried very hard to complete her studies over the past year. It is frustrating when there is some outstanding work as a result of doing dual studies at the same time. The dual part has been fitting in the practical component of the Certificate III Hair Dressing course. The applicant is a very friendly and willing to learn student and has a willingness to help others.  The witness further added that the applicant did not have any skills in the area of hair dressing as the only work she had performed back in her home country between 1998 and 2002 was sometimes shampooing and washing when the salon was extremely busy but not any type of cutting. The Tribunal thanked the witness for her time and contribution to the hearing.

28. The applicant submitted to the Tribunal a certificate for a Certificate III in Hairdressing through Academia International dated 9 February 2019 (AAT Folio 86b) and an Academic Transcript for the Diploma of Beauty Therapy (AAT Folio 85b) dated 8 February 2019. The applicant confirmed at hearing that she is on track to complete this course on 14 April 2019 in approximately 8 weeks’ time.

29. The applicant informed the Tribunal that after 14 April 2019 she intends to depart Australia and return to Mauritius and open up her own beauty salon utilising the skills that she has gained during her time in Australia.

30. The Tribunal accepted the applicant’s response that she intends to depart Australia after the completion of her course on 14 April 2019.  The Tribunal requested the applicant submit a break of lease letter from her leasing agent and three non-refundable one-way airline tickets back to her home country of Mauritius for herself, her husband and daughter Marie.

31. The Tribunal did not request for the applicant to submit a non-refundable one-way airline ticket for her son Jeffrey Albert so that he could pursue his university enrolment at Deakin University in Australia.

32. The applicant submitted to the Tribunal a letter from her leasing agent, Buxton Real Estate dated 1 March 2019 (AAT Folio 97) which acknowledged the break of lease as of 31 May 2019.

33. The applicant submitted to the Tribunal the relevant non-refundable airline tickets (AAT Folios 106 -109) for herself, her husband Jean Albert and daughter Marie Albert departing on 2 June 2019 on Air Mauritius. Attached to the submission was a receipt of full payment for the airline tickets of AUD3675.00 from African Dreams Travel in South Oakleigh (AAT Folio 107b).

34. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

35. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

36. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

37. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    M. Edgoose
    Member

    
    

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    c.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    d.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    e.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    f.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    g.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including: i. if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    i.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    ii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.