Biloy (Migration)

[2019] AATA 476

Biloy (Migration) [2019] AATA 476 (4 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Juezebel Maree Biloy

CASE NUMBER:  1717220

DIBP REFERENCE(S):  BCC2016/827810

MEMBER:Justin Meyer

DATE:4 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 February 2019 at 5:30pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 572 (Vocation Education and Training Sector) – genuine temporary entrant criteria – completed several unrelated courses in Australia – vague career plans – previous qualifications relevant to job offer – husband waiting for 457 visa – use of visa program to maintain residency – ties to home country

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA, 499

Migration Regulations 1994 (Cth), Schedule 2 cl 572.223

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 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 29 February 2016. The delegate decided to refuse to grant the visa on 3 August 2017. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because she was not satisfied that the applicant was a genuine applicant for entry and stay as a student and that she intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 27 April 2018 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her 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. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

8. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (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)     …

9. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

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

11. The applicant has previously competed the following courses in Australia between 2013 and 2015:

    ● Certificate IV in Business
    ● Diploma of Business.
    ● Certificate III in Aged Care.
    ● Certificate IV in Massage Therapy Practice.

12. The applicant has a Bachelor of Nursing from an institution in the Philippines, from where she came to Australia in 2012.

13. In her first student application the applicant proposed to study a Bachelor of Business, which she did not complete.

14. She is now enrolled in a Certificate IV in Beauty Therapy from the Melbourne College of Beauty Therapy with a start date of 7 May 2018 and an end date of 3 May 2019.

15. The applicant is 31 years old.

16. The applicant’s husband is Italian and he is in Australia studying as well.

17. The applicant stated in the hearing that her original reasons for coming to Australia were a desire to study business and improve the technology course skills which were less advanced in her home country of the Philippines. Her earlier nursing degree which she obtained in the Philippines was chosen by her parents and not herself.

18. The applicant was asked why she began studying aged care in 2013 to achieve replied that she had been a volunteer in aged care in the Philippines. Her mother at that time was interested in setting up in aged care business, which the applicant might become involved in. She also likes dealing with older people. She had a good relationship with her grandparents. Her grandfather was the president of a senior citizens committee. However the enterprise her mother was involved in eventually failed to go ahead.

19. The applicant said that she then branched out into massage therapy studies, and this was stimulated because her father had had a shoulder injury and replacement and needed more information to look after him. She did not count this as a genuine course but instead it was something to help her father.

20. The applicant said that her education was more about healthcare. Her studies in beauty therapy would help her with the study of well-being. The husband is a hairdresser and wants to open his own business in the Philippines. There is a new international airport in the Philippines in her area which needs internationally qualified people such as the parties.

21. It was put to the applicant that her courses seem to have little to do with one another, but the applicant said that there was a little bit of connection. She said there was an evolution into health studies for her.

22. The applicant’s husband is awaiting receipt of his 457 visa and that there was a possibility of him sponsoring the applicant into Australia. However the parties’ plan is to now return to the Philippines where her Italian husband prefers to live as he enjoys the environment and beaches in the Philippines.

23. In terms of family connections her family are all in the Philippines and she has visited them four times. She has incentives to go back to the Philippines. The applicant’s further incentive she said were that she applied for a job within the government of the Philippines. She said she was using her experience gained in Australia and the different ideas that she had learned to begin a job in 2019. The applicant provided a job offer from the city local government operations office of the Department of the Interior and Local Government.

24. The letter reads:

    Congratulations!!!

    Per advice from our regional office your pending application for an administrative tough staff position in this office has been acted favourably effective FY 2019 and upon submission of the following documents

    1. Updated transcript of records

    2. Record of relevant trainings attended

    3. Statement of assets and liabilities and net worth

    Thank you very much for your trust and welcome to the Department

    Very truly yours

    MARDINIO T ROXAS

    CLGOO

    [March 26 2018]

25. The applicant was questioned about the job offer which she stated was contingent upon completion of the current course. I asked the applicant why she could not work for this government department now. The applicant said that the offer says that the position begins in 2019. The applicant said that she applied for that year because she is currently awaiting for her husband to be available. The applicant was asked why she needed a course in beauty therapy in order to work for an administrative position in a government department. It was put to her that she appeared to have enough skills to get a position such as this. The applicant responded that she had told her future employer that she needed to complete her therapy beauty therapy course before she could commence employment with them. I therefore conclude that is not a condition initiated by the Department of Interior and Local Government but is instead initiated by the applicant herself. I pressed the applicant on whether the department would have employed her in any event. From the evidence, she is only available in 2019. For this reason I have concluded that the relevant department is able to employ her now on the basis of their previous qualifications and in the Philippines and in Australia and would have been able to employ her at the completion of the most recent course - the Certificate IV in massage therapy practice - as issued on 22 December 2015. I find that the beauty therapy course that she currently is undertaking in no way relates to her potential duties at the Department of the Interior and Local Government.

26. In terms of incentives to do with the applicant’s home country, I understand that her courses in Australia were of a higher quality than that possible in the Philippines. I accept that she has personal ties to her home country her family, and community, and possible employment. They do present some incentives to return to the Philippines. Her economic circumstances would be advantaged if she were employed by the Department as she has cited. She has not cited any military service commitments and the Tribunal finds that there are none. There is no political or civil unrest that is raised was relevant in this case. The Tribunal finds that there are some incentives for the applicant to return to the Philippines in this sense.

27. However the Tribunal finds the potential circumstances in Australia present a strong incentive to remain. She has a partner in Australia who is attempting to get a 457 visa. If he obtains this visa he will remain in Australia it is reasonably assumed. The applicant indicated that she wanted at least at one point to be sponsored by her partner if he could do so to remain in Australia. It is apparent that the various unrelated or thinly related courses she has undertaken, are not a result of inconsistent advice from migration advisers, but in fact are being used to maintain ongoing residence in Australia. It was difficult to see the connection between the various courses, and admission such as the undertaking of a massage therapy course merely to assist her father’s injured shoulder relate more to personal circumstances than aiming for a career goal connected course of study. The living arrangements of the applicant appeared to indicate that she has an ongoing domestic life with her husband and the parties are been working in Australia. The applicant has been working as a personal care assistant and has earned money in Australia which is an incentive to remain.

28. Whilst the applicant’s husband intends to open a hairdressing business in the Philippines if the applicant returns the Philippines the Tribunal nonetheless finds that such an incentive is outweighed by the vague plans that the applicant has for her own future and her desires about life in Australia. It is also outweighed by the applicant’s husband’s efforts to remain in Australia under a 457 visa. I find that this is the main intention of the applicant in this case.

29. I note the applicant’s previous travel is to the Philippines to visit family and also to catch up with family in Hong Kong. This numbers some four trips. Nonetheless a considerable period of time has been spent in Australia since 2012, and various courses at been conducted by the applicant and this consideration does not outweigh the concerns the Tribunal has about her strong incentives to return to Australia. There is no issue with non-compliance with immigration laws in Australia.

30. The Tribunal provided the following s.359AA information to the applicant.

    ·Adverse information from a Departmental database, PRISMS, (the Provider Registration and International Students Management System). It tracks, based on information reported by Australian education providers, the enrolment and education achievements of international students in Australia.

    ·PRISMS show she has enrolled in several courses since 2012, a number of which are not completed and most of which are in varying and apparently unconnected fields, i.e.

    Ø    Bachelor of Business (Community Services Management)

    Ø    Certificate IV in Business

    Ø     Diploma of Business.

    Ø    Advanced Diploma of Management.

    Ø    Certificate III in Aged Care

    Ø    Certificate IV in Disability

    Ø    Certificate IV in Massage Therapy Practice.

31. This information is relevant because she has gone from various seemingly unconnected courses which makes the Tribunal query whether she is a genuine temporary entrant to Australia.

32. It was relayed that if the Tribunal relies on this information in making its decision, it may lead the tribunal to believe that she is not a genuine student, and that she does not meet cl.572.223. If the Tribunal so finds, this information would be a reason, or part of the reason, for the Tribunal to affirm the decision of the Department in her case and refuse her application for a student visa.

33. The applicant was invited to comment on or respond to that information. She was told that she did not have to respond or comment now. She was told that she may seek additional time to comment on or respond to that information. If she did want additional time, I offered to consider her request and would grant her a reasonable amount of time to consider the information I had given to her and to consider her response to that information.

34. She was asked if she wanted to comment on or respond to the information I had just provided to her then or would she like some time to consider it before she responded.

35. The applicant advised she did not seek a postponement of the hearing.

36. She said made the change from the first course and then from business to aged care and then to beauty therapy and had explained this to the Tribunal earlier.

37. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

38. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Justin Meyer
    Member