BAMIMORE (Migration)

[2019] AATA 908

BAMIMORE (Migration) [2019] AATA 908 (3 January 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Ms ADERONKE ADUKE BAMIMORE

CASE NUMBER:  1619341

DIBP REFERENCE(S):  BCC2016/2978775

MEMBER:Meredith Jackson

DATE OF DECISION:  3 January 2019

DATE CORRIGENDUM

SIGNED:9 January 2019

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

1. The Date of the Decision that states “3 January 2018” should be replaced with ”3 January 2019”.

   Meredith Jackson
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   APPLICANT:  Ms ADERONKE ADUKE BAMIMORE

   CASE NUMBER:  1619341

   HOME AFFAIRS REFERENCE(S):           BCC2016/2978775

   MEMBER:Meredith Jackson

   DATE:3 January 2018

   PLACE OF DECISION:  Brisbane

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

   Statement made on 03 January 2019 at 2:13pm

   CATCHWORDS
   MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa –genuine temporary entrant criterion – intended to apply for another work visa – study at the lower level – more factors encouraging the applicant to remain in Australia – decision under review affirmed

   LEGISLATION
   Migration Act 1958, ss 65, 359AA, 499
   Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

   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 3 November 2016 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 7 September 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 the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

   4.    The applicant appeared before the Tribunal on 12 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter, Miss Koyinsola Esther Osunsina.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   7. 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.

   Summary of the case

   8.    The issue in the present case is whether the applicant, Ms Aderonke Aduke Bamimore, meets the genuine temporary entry criteria for a Student visa. She is a 47 year old citizen of Nigeria who has been granted 12 Australian visas since 2007: either Tourist, Student, Graduate or Bridging visas. Since her arrival, Ms Bamimore has attained six qualifications, the highest a Master of Commerce completed in June 2013. In September 2016, three days before her Graduate work visa was due to expire, she applied for and was refused a new Student visa to study a Diploma of Project Management. The refusal was on the basis that she did not meet the genuine temporary entrant requirements of the Regulations. Ms Bamimore is appealing that decision. She is currently enrolled in a Diploma of Project Management, a vocational course which requires Ms Bamimore to study at a level significantly below her previous attainment. Her submission is that she needs the Diploma to enhance her opportunities and avoid being regarded as “just an accountant”.

   Genuine applicant for entry and stay as a student (cl.500.212)

   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.

   Submissions considered

   12.      The applicant submitted documentary evidence prior to the hearing, which included:

   i.A letter to the Tribunal from the Jesus Worship Centre in Queensland attesting to her personal qualities and of being “the character of person that is fit with Australian values”;

   ii.A letter from Lymma Nigeria Ltd, attesting to the applicant’s personal and professional qualities and making a commitment to finance and sponsor her studies and re-employ her;

   iii.A statement from a Medical Officer in Nigeria outlining the medical condition of Olowa Comfort, 66 years, female;

   iv.A death certificate for Adelwole Bamimore aged 76 years, male;

   v.Confirmation of Overseas Student Health cover until 15 December 2019;

   vi.Academic transcripts for courses completed in Australia, including a testamur in the applicant’s name for a Master of Commerce from Griffith University;

   vii.Confirmation of Enrolment (COE)  for a Diploma of Project Management in 2016 and a second COE for a Diploma of Project Management in 2018; and

   viii.Personal submissions including a statement that she proposes currently to study a Diploma of project management.

   The hearing

   13. At the hearing, the Tribunal, under section 359AA of the Act, referred the student to information about her held in the Provider Registration and International Student Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision. The Tribunal outlined the information in the database, which captures a chronological record of the applicant’s academic history in Australia: her enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and the applicant was invited to comment on it. The Tribunal and the applicant discussed the information in the database and concluded it was incomplete as it did not reflect all the applicant’s Australian attainments. The Tribunal said this was likely to be due to a technicality and that the Tribunal was aware from both the applicant’s submissions of her academic records, and the delegate’s decision, that the applicant had completed other courses including a Master of Commerce and an Advanced Diploma of Management. The Tribunal asked the applicant if she wished to seek further time to consider it. The applicant said she was prepared to comment on the information and why it was relevant to her case. The applicant agreed she had attained the two qualifications mentioned.

   14.      The Tribunal raised at the hearing that the applicant was proposing to study a Diploma of Project Management and asked why the applicant needed that additional qualification when she already had completed a Master’s degree and an advanced diploma in a management discipline. The applicant said when her graduate visa expired she had spoken to her former employer in Nigeria who said he was expanding the company’s base and he wanted her to specialise in project management so that she could be reinstated in a management role, and she agreed to study project management on the basis it was only for a year. This was why she had enrolled in the course.

   15.      The Tribunal raised that the applicant’s daughter was accompanying her at the hearing and asked if she had also applied for a Student visa. The applicant stated her daughter had just finished a Bachelor of Health Science, was awaiting conferral of the degree and was sponsored in her studies by an uncle in Nigeria. Her daughter had been refused a further visa and was appealing the decision.

   16.      The Tribunal heard sworn evidence from the applicant’s daughter who confirmed she had previously studied as a dependant on her mother’s visa but she was now over the age of 18 and had applied for a visa in her own right. The visa had been refused on the basis of financial capacity and she had appealed that decision.

   17.      The Tribunal questioned the applicant about her plan after completing the proposed diploma of project management and the applicant stated she would return home. The Tribunal asked why, given that she held an Australian degree, she did not go home and study at the lower level there. The applicant responded that she was already studying here and the qualifications would serve her better if they were Australian.

   18.      The Tribunal asked about her family in Nigeria and any family in Australia and the applicant confirmed she had a sister in Hervey Bay who was an Australian citizen. In Nigeria she had nine siblings. Her father had passed away and her mother was sick from a stroke and she was supposed to be home looking after her. But she could not go back because she was thinking of her future and her daughter.

   19.      The Tribunal asked whether the applicant intended to apply for another work visa and she confirmed an employer in Adelaide presently wanted her to work for him. Her employer was willing to sponsor her for a work visa. The Tribunal asked if the applicant had a settled intention to apply for a work visa and the applicant said she was weighing the options between employment in Nigeria and the Australian employer. She had decided to go back to Nigeria. The Tribunal asked about the difference between remuneration structures in Nigeria compared with Australia and the applicant said the position was good. Here she would just be employed as an accountant whereas in Nigeria she would be in management. This had driven her decision to study project management.

   20.      The applicant said she had applied for a permanent visa in 2008, a 189 visa, and it was refused. She had applied for another one in June last year.

   21.      At this point the Tribunal observed that the applicant appeared nervous but she responded she was happy to continue giving evidence. The Tribunal asked if the applicant had applied for any other visas in Australia or elsewhere and she stated she had not and she had complied with her visa conditions.

   22.      The applicant summarised her submissions by stating that she wanted to go home with something to rely on.

   Conclusions

   23.      The Tribunal has taken into account all the applicant’s submissions, both documentary and oral, and considered them against the factors outlined in Direction 69. It has focussed on the applicant’s circumstances in her home country, potential circumstances in Australia, and the value of the course to her future.

   24.      The applicant submits she has plans to continue to study project management because it will enable her to be re-employed in Nigeria in management. She offers a scenario, and has submitted evidence in support of it, in which her Nigerian employer pays for her study and other expenses in Australia for a year, during which time she is expected to complete the vocational qualification in project management and that means she could secure a role in the company in a management position. The applicant provides no evidence that the employer has the capacity to pay for her studies or that any deposits have been made, for example, in her bank account to this effect. The Tribunal notes the applicant simultaneously has outlined the interest of an Adelaide firm in employing her as an accountant. The applicant submits she is still weighing her options, but offers no evidence supporting that commitment. She acknowledges, as does her adult daughter, that both members of the family are hoping to continue to study in Australia but both have been refused a visa to do so.

   25.      The Tribunal has considered the scenario, and heard the applicant’s evidence in relation to the options it contains, and on the whole, concludes that the applicant is not settled in relation to her future intentions. She claims she prefers and intends to return home, because her prospects there are better and she wishes to care for her mother. The Tribunal acknowledges both these claims are reasonable, as the applicant’s existing Australian qualifications alone would serve her well in Nigeria; however it is less convinced that she needs a further vocational course in Australia, one that is at least four Australian Qualification Framework levels below her existing attainment, and similar to a course already completed, to complement them. In relation to caring for her ailing mother, the Tribunal notes the applicant’s evidence she has nine siblings in her home country, and considers some of those immediate family members might be able to provide alternative care avenues for her mother.

   26.      On balance, the Tribunal considers there are more factors encouraging the applicant to remain in Australia than to return to Nigeria: in summary, her daughter is seeking to stay here and study in an advanced health program; the applicant submits that she is “thinking of her future and her daughter”; her sister is a citizen of Australia; and the applicant has an employer willing to employ her as an accountant here. The Tribunal considers it more likely that the applicant is hoping to extend her stay here.

   27.      The Tribunal is also mindful that the applicant applied for the Student visa just days prior to the expiry of her Graduate work visa. On her evidence, the applicant has also applied on two occasions for Skilled Independent Work (subclass 189) visas which she describes as permanent visas. The Tribunal considers these actions are not those of a person with a settled intention to return to her home country.

   28. 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).

   29. 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.

   30.      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

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

   Meredith Jackson
   Member