Atuan (Migration)

[2020] AATA 1081

Atuan (Migration) [2020] AATA 1081 (26 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jheroume Atuan
Mrs Maria Divine Grace Atuan

CASE NUMBER:  1726384

HOME AFFAIRS REFERENCE(S):          BCC2017/2956971

MEMBER:Damian Creedon

DATE:26 March 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for a Student (Temporary) (Class TU) visa for reconsideration, with the directions that:

a.the first-named applicant meets the following criteria for a Subclass 500 (Student) visa:

· cl.500.212(a) of Schedule 2 to the Regulations; and

b.the second-named applicant meets the following criteria for a Subclass 500 (Student) visa:

· cl.500.311 of Schedule 2 to the Regulations.

Statement made on 26 March 2020 at 5:45pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– reason for change in study and career pathway has been reasonably explained –  genuine applicant for entry and stay as a student–a credible witness – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.212, 500.311

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 6 October 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 17 August 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 satisfies cl.500.212(a).

2. 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?

1. 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, which is attached to this decision, 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.

2. 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.

Overview of evidence

1. The applicant is a 41-year-old Philippines national who first arrived in Australia on 20 September 2014 as the holder of a Student (TU573) visa.

2. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

3. The delegate’s decision record notes the following information:

   Departmental records state the last student visa you held was subject to visa condition 8516 which required you to continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa. One of the primary criteria for the grant of that student visa is that the applicant is enrolled in, or is the subject of a current offer of enrolment in a principal course. You were granted that visa to undertake a Bachelor of Business which is in the Higher Education Sector. Based on the information in the Provider Registration and International Student Management System (PRISMS) your enrolment was cancelled by the education provider on 10 August 2016. As you did not maintain enrolment in your principal course or another course in the Higher Education Sector you have not complied with visa condition 8516.

4. The Tribunal also had before it a number of documents provided by the applicant.  Save as required for the purposes of this decision it is unnecessary to list these documents in detail.  Relevant documents will be referred to as required.

5. The applicant’s Provider Registration and International Student Management System (PRISMS) record shows that since his arrival onshore he has successfully completed the following courses:

Course Name	Date Commenced	Date Completed
Diploma of Business	29/09/2014	26/09/2015
Diploma of Mental Health	28/12/2017	23/07/2019[1]

[1] Including CoE extensions.

1. PRISMS also records that the applicant is presently enrolled in a Diploma of Nursing that he commenced on 5 August 2019 and is scheduled to complete on 29 January 2021.

2. The applicant appeared before the Tribunal on 18 October 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.  Where relevant, the applicant’s evidence to the Tribunal is referred to in its analysis below.

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

Analysis and findings

1. The Tribunal found the applicant to be a credible and truthful witness who, where possible, supported his oral statements with documentary evidence.  The Tribunal found the applicant’s oral evidence to be consistent throughout and in giving his evidence he did not convey an impression of concoction or recent invention.

2. The Tribunal discussed with the applicant education and work history in his home country.  The applicant’s evidence to the Tribunal is that prior to coming to Australia he had completed three qualifications: namely a Diploma of Information Technology (06/1995 – 04/1997); a qualification as a Telecommunication Technician (06/1997 – 04/1999); and a Bachelor of Nursing (06/2005 – 05/2008).  In respect of his employment the applicant worked as wait staff in 1998 and 2000, then as a Salesman for Unilever Philippines and then started and ran two businesses: firstly, ‘PC Savers Computer Centre’ between March 2003 and December 2015; and secondly, ‘Atuan Apartments’ which he commenced in May 2006 and which is ongoing.[2]  In respect of ‘Atuan Apartments’ the applicant gave evidence that he started the business in 2006 by buying land and had the apartment constructed on the land.  The applicant explained that the business consisted of leasing residential apartments to tenants.

   [2] The applicant provided the Tribunal with a copy of his Business Name Certificate for ‘Atuan Apartments’ as well as his accountant’s statement as to the financial position of the business as at 31 December 2018.  The statement is comprehensive and typical of such accounting documents.

3. The Tribunal discussed with the applicant his motives for undertaking international studies in Australia and his history as a student here.  The applicant stated that he came to Australia to finish his Diploma and Bachelor of Business courses and that he chose Australia as his preferred destination for the quality of the education system here.  In respect of his career aspirations at that time, the applicant stated that he wished to acquire business knowledge and qualifications in Australia to aid in the expansion of his businesses in the Philippines. 

4. The Tribunal raised with the applicant its concern that from at least December 2017 (and likely earlier) he appears to have undertaken studies in a field wholly unrelated to his previous studies in Australia, namely the health sector.  The applicant stated that when he first arrived in Australia his interests were in business studies, however he decided to change his study pathway after a conversation with one of his sisters.  His evidence was that his sister invited him to manage a special needs school in the Philippines.  When pressed by the Tribunal, the applicant stated that he has two sisters: one is a nurse in Qatar and the other is a nurse in the United States.  He stated that his sisters had had discussions regarding a plan to establish a special needs school in their community in the Philippines.  He stated that their motive was one of the applicant’s nephews who has autism and is himself a special needs student.  The applicant stated that the school is planned to be built on land already identified and that his brother-in-law, who is an architect, is involved in the planning of the school.  When asked to describe his role in the venture, the applicant stated that he had been invited to be the ‘head’ of the school, given his background in business and in nursing.    He stated that he felt an obligation as the eldest sibling to share the benefits of his education with his family.  When pressed to describe how qualifications in nursing would assist him in his proposed role, the applicant stated that his qualifications in mental health were directly relevant and, coming from Australia, they would carry a particular prestige in the Philippines.  He stated that these qualifications were sufficient for him to be the head of a special needs school in the Philippines.

5. As a result of the conversation with his sister, and the family decision to establish the special needs school, the applicant withdrew from his business study pathway on 23 May 2017[3] and commenced his studies towards a Diploma of Mental Health.[4]  He explained that his withdrawal from this course created an ‘apparent’ gap in his studies between the completion of his Diploma of Business and the formal commencement of his Diploma of Mental Health. 

   [3] At that date the applicant was studying for an Advanced Diploma of Information Technology that he had commenced on 4 July 2016 and was due to complete on 8 June 2018.

   [4] Which he commenced on 25 May 2017, but which CoE is recorded as having been deferred/suspended for compassionate or compelling circumstances.

6. Overall, the Tribunal found the applicant’s evidence on these issues to be persuasive; his answers to the Tribunal’s questions were consistent and (where possible) well-documented, and they reached sufficient detail throughout to satisfy the Tribunal of their cogency.

7. The Tribunal discussed with the applicant his economic circumstances in, and ties to, his home country.  The applicant’s evidence is that his wife, the second-named applicant, resides with him in Australia and that his three children reside in the Philippines.  The applicant stated that his eldest son in in high school and that his two daughters are in elementary school.  The applicant stated that his children are residing with his parents for the duration of his studies in Australia.  The applicant asserted that these are significant ties to his home country, which the Tribunal accepts.  In his evidence to the Tribunal the applicant outlined his assets in the Philippines which include ‘Atuan Apartments’ and a vacant block of land the value of which, together, he estimates as AUD$255,000.  Again, the Tribunal accepts the significance of these ties to the Philippines.

8. As to the applicant’s present circumstances in Australia, his evidence is that he has worked as a ‘factory worker’ a ‘cook’ and a ‘kitchen hand’ since arriving onshore.  His evidence is that he has not earned more than $20,000 per year in that time.  This did not raise concerns in Tribunal's mind that the applicant is seeking building a career in Australia; and there is no evidence before the Tribunal that the applicant has sought to establish relationships in Australia inconsistent with those of a genuine student.  Overall, the applicant’s evidence did not persuade the Tribunal that he has ties to Australia, either social or economic, sufficient to act as a strong incentive for him to remain in Australia at the conclusion of his studies.

9. There is no evidence before the Tribunal of any civil unrest or military service commitments in the applicant’s home country that would act as a clear incentive for the applicant to remain in Australia.   

10. The Tribunal has had the benefit of speaking to the applicant which has enabled it to obtain more information regarding his circumstances and genuineness in the presentation of his evidence.  The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has previously completed the courses claimed in Australia, has said he will return home on completion of his studies, has strong family and business ties to his home country and all the other matters he has raised.

11. A principal concern of the Tribunal’s on its initial review of the applicant’s case was the significant change to his study pathway.  The Tribunal is mindful, however, in assessing whether a study pathway will assist an applicant to obtain employment or improve employment prospects in their home country, that it must allow for reasonable changes to career or study pathways.  In all of the circumstances the Tribunal is persuaded that the applicant’s change in study and career pathway has been rationally and reasonably explained. 

12. Overall the Tribunal is persuaded that the student visa programme is not being used by the applicant to circumvent the intentions of the migration programme.  For the reasons outlined above the Tribunal accepts that the applicant is undertaking his current study or future study for the reasons he claims.

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

14. 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.

15. 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

1. The Tribunal remits the applications for a Student (Temporary) (Class TU) visa for reconsideration, with the directions that:

   1. the first-named applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.212(a) of Schedule 2 to the Regulations; and

   2. the second-named applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.311 of Schedule 2 to the Regulations.

Damian Creedon

Member

Attachment – Direction No.69

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

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

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

3. 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

1. 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.

2. 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

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

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

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

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

   dwhether 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

   e.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

1. 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

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

2. 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;

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

   iii.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

   iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

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

1. 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

1. 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.