Bolivar Ochoa (Migration)

[2020] AATA 1837

Bolivar Ochoa (Migration) [2020] AATA 1837 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mary Leidy Bolivar Ochoa
Mr Jairo Oswaldo Pena Ordonez

CASE NUMBER:  1805733

DIBP REFERENCE(S):  BCC2017/4446669

MEMBER:Frank Russo

DATE AND TIME OF

ORAL DECISION:  21 February 2020 at 12:52 pm (EDST)

DATE OF WRITTEN RECORD:                11 March 2020

PLACE OF DECISION:  Sydney

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 11 March 2020 at 8:11am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine applicant for entry and stay as a student – genuine intention to complete studies – close family ties in home country – satisfactory study progress – decision under review remitted

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

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 12 February 2018 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 24 November 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 visas 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) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The Tribunal gave its decision on the review at the conclusion of the hearing held on 30 October 2019. The following are the reasons for that decision.

5. The applicant is a 35-year-old Colombian national. The secondary applicant is the applicant’s husband, a 43-year-old Colombian national.

6. The applicant appeared before the Tribunal on 21 February 2020 to give evidence and present arguments. The Tribunal also heard evidence from the secondary applicant.

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 is a genuine temporary applicant.

   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, 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.

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. In addition to the application form, the applicant provided the Tribunal with a number of other documents, as follows:

    a.A s.359(2) response, received by the Tribunal on 29 October 2019;

    b.Statements from the applicant dated 1 March 2018 and an undated statements received on 29 October 2019 and 19 February 2020;

    c.Confirmations of enrolment for 4 General English courses, IELTS Preparation and English for Academic Purposes at Cambridge College International (CCI);

    d.Statements of Attainment issued to the applicant by CCI for the following General English courses: Pre-Intermediate issued on 27 February 2018, Intermediate issued on 17 July 2018, Upper-Intermediate issued on 10 January 2019 and Advanced issued on 29 April 2019;

    e.Statements of Attainment issued by CCI for General English courses completed by the secondary applicant;

    f.Letter from Australian Academy of Commerce, issued 20 January 2020;

    g.Letter of attendance from CCI, dated 26 February 2018;

    h.Marriage certificate in Spanish, together with certified English translation;

    i.Birth certificate for the applicant’s husband’s daughter;

    j.Certified English translation of agreement for the purchase of property on 7 September 2011; and

    k.Application form for Certificate IV in Ageing Support and Certificate IV in Disability, made to Nurse Training Australia, dated 19 February 2020.

13. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

14. Having considered all the material before it and the relevant considerations as set out in Direction 69, the Tribunal is satisfied that the applicant genuinely intends to stay in Australia temporarily for the reasons set out below.

15. The applicant gave evidence that she initially arrived in Australia on 20 March 2015 as a support for her husband, who was the primary visa holder of a Student visa. She stated that her husband was initially granted a one-year visa to study English, and was then granted a further two-year Student visa. She stated that her husband studied English from March 2015 and finished around September 2017, although she wasn’t exactly sure when. The applicant gave evidence that she first met her husband in Bogota in March 2008 and they were married on 17 May 2014.

16. She stated that when she first arrived in Australia in March 2015 she had no intentions of studying, and that her sole purpose was to be a support for her husband, however after arriving she realised the importance and value of studying English herself. She told the Tribunal that she first decided to study English in Australia after approximately 9 months of her arrival, but decided that she would not commence these studies until her husband had completed his.

17. The applicant gave evidence that she completed high school in Colombia and had studied a sales and marketing course for 6 months, but has no qualifications to show for that.

18. In September 2008 the applicant began working at Punto Naranja, a telecommunications company. The applicant gave evidence that in 2011 she and her husband started a telecommunications business in Colombia where they were the distributors for Punto Naranja. When the applicant and her husband arrived in Australia in 2015 the company was left to run with two employees and they have since sold it.

19. The applicant told the Tribunal that she enrolled in three courses: in General English, an IELTS preparation course and English for Academic Purposes. At the time of the hearing she was enrolled in the IELTS preparation course, which was finishing on the day of the hearing. She stated that she has completed all of the courses she has enrolled in, but did not receive a certificate/qualification for English for Academic Purposes. She explained to the Tribunal that this was because the first college she was enrolled in was CCI, which has since closed. She stated that she transitioned to another college, Australian Academy of Commerce, which does not offer English for Academic Purposes.

20. The applicant also told the Tribunal that she had a pending enrolment at a Nursing school, but did not yet have a CoE. The Tribunal asked the applicant whether she had a copy of a letter of offer from this college, but she then clarified that she had only made a request to enrol with the college.

21. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on file a copy of her enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of her PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether she had any comments in relation to her PRISMS enrolment records and advised that she may be granted time to comment on or respond to the information if needed.

22. The applicant indicated that she wished to have a brief adjournment to consider her PRISMS record, which the Tribunal granted. The hearing was resumed on the same day and the applicant confirmed that she wished to respond to the PRISMS record at the hearing.

23. The Tribunal put to the applicant that according to her PRISMS record she has been enrolled in a number of short English courses of between 2 to 4 months duration, which may suggest that she has enrolled in a series of relatively short and inexpensive courses to extend her stay in Australia. The applicant stated that while this may look the case from her PRISMS record, she has really been enrolled in three courses: in General English, IELTS Preparation and English for Academic Purposes. She explained that a number of the courses she enrolled in were General English courses, which she has not been repeating, but has been progressing in, from an introductory level to the advanced level.

24. The Tribunal questioned the applicant as to why she had not commenced her studies sooner if she had decided that she wished to study in Australia about 9 months after arriving, particularly given some of the courses she has completed were of under 3 months duration. She responded that her husband was studying at that time and she thought that she would wait for him to finish his studies and then commence hers, and that her visa did not allow her to study for more than 3 months over the entirety of her visa. She stated that her purpose for being in Australia was to be a support for her husband, and she already had a Student visa as his dependant for this purpose. She had sought advice from an agent, who advised her that there were risks in making an application as the primary visa holder as it could be refused, and therefore she may be separated from her husband while he completed his studies.

25. As to the value of her courses in English, the applicant stated that they are beneficial to her because English is spoken worldwide and is useful not only for travel but for job opportunities. She stated that speaking English will give her an advantage in the workforce in Colombia, particularly in the field of nursing in the cosmetic surgery industry, which is a growing industry and where many of the patients are from overseas. She gave evidence that she does not have any existing tertiary qualifications from Colombia and her English studies will now enable her to study Nursing in Australia or elsewhere. She gave evidence that when she first arrived in Australia she spoke no English and could not have thought to pursue further studies in Australia in this field without her first obtaining English language skills. As noted above, she provided evidence of an application to study two Certificate IV courses at a nursing college.

26. The applicant gave evidence that although she has enrolled in a number of short courses in English, she has progressed through different levels of English. The applicant provided the Tribunal with certificates for the completion of her English courses and the Tribunal is satisfied that the applicant has progressed in levels, from pre-intermediate to intermediate, then to upper-intermediate and advanced. The applicant’s husband, Mr Pena Ordonez, also gave evidence that the applicant spoke no English when she arrived in Australia.

27. The Tribunal found the applicant to be a credible witness, who gave her evidence in a consistent and matter-of-fact manner and gave reasonable explanations for a number of concerns raised with her by the Tribunal. Overall the Tribunal is satisfied as to the value of the applicant’s studies in English to her future. The Tribunal notes that the applicant has no current tertiary qualifications and gave evidence that she wishes to obtain qualifications in Nursing, either from Australia or another country. The Tribunal is satisfied on the evidence before it that the applicant did not have a sufficient level of English in 2017 to study Nursing or a related qualification in Australia, and that her current studies will assist with her plans for future employment.

28. The applicant gave evidence of strong family ties to Colombia, which include her parents, siblings, uncles and aunts. Her husband has a 13-year-old daughter in Colombia, as well as his family. The applicant gave evidence that she returned to Colombia in 2017 for 6 weeks. She stated that she is in contact with her family in Colombia every day through Whatsapp. The applicant currently has no family in Australia other than her husband. She previously had a sister who came to Australia temporarily about one year ago, but she has since returned to Colombia. The Tribunal is satisfied that the applicant has strong family ties to Colombia which may serve as a significant incentive to return to her home country on completion of her proposed further studies. Although the applicant’s husband is present in Australia, the Tribunal notes that his presence is currently dependant on that of the applicant.

29. The delegate’s decision indicates that the applicant had provided evidence to the Department that she and her husband married on 23 November 2017, the day before the visa application was made. This raised concerns for the delegate about their relationship. The applicant provided the Tribunal with a copy of a marriage certificate, issued in Colombia, that indicates they were married on 17 May 2014. The Tribunal notes that a copy of this marriage certificate is also available on the Department’s file. In addition, the applicant’s husband, Mr Pena Ordonez, attended the hearing and gave evidence which confirmed that he is in a genuine marriage with the applicant. The Tribunal therefore has no concerns regarding the relationship of the applicants.

30. There is no evidence of any military service or civil or political unrest that would act as an incentive for the applicant to remain in Australia. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Colombia, relative to others in that country, and the Tribunal makes no adverse findings in that regard.

31. As to her current economic situation, the applicant gave evidence that she works as a cleaner 4 hours per day, Monday to Friday. She has done this work for about 5 years and earns $23 per hour. Her husband is a supervisor with a cleaning company. The applicant gave evidence that she intends to undertake two Certificate IV courses in Ageing Support and Disability in Australia, or otherwise apply for Nursing courses elsewhere, and intends in the long-term to work in the Nursing industry in Colombia. She gave evidence that prior to arriving in Australia she and her husband operated their own telecommunications business. Her husband purchased an apartment in Colombia in 2011, for which evidence of a contract was provided. The Tribunal is satisfied that the applicant and her husband have not been developing careers in Australia. The Tribunal does not consider that the applicant has significant ties to Australia (economic or otherwise) which would present as a strong incentive to remain in Australia. Similarly, the Tribunal does not consider that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to her home country on completion of her studies.

32. The applicant gave evidence that she has not previously had any visas cancelled or refused and she has no outstanding applications for other classes of visa. She told the Tribunal that she has complied with her visa conditions since arriving in Australia. The Tribunal notes that the applicant has enrolled in a series of relatively short and inexpensive ELICOS courses. The applicant first arrived in Australia on 20 March 2015 as the dependant of her husband and held a Student visa as the secondary applicant until she made her applicant as the primary applicant on 24 November 2017. The Tribunal notes that the applicant has studied similar English courses to those studied by her husband and has commenced her studies after he has completed his, which may suggest that she has enrolled in these courses to extend her stay in Australia. The Tribunal questioned the applicant about this concern extensively at the hearing and is satisfied that the applicant had reasonable reasons for this enrolment history. The Tribunal accepts that the applicant had sought advice about making an application as a primary visa holder and in her view this may have involved some risks. The Tribunal accepts the applicant’s reasons for not commencing her studies in English sooner, as well as for why she waited until after her husband had completed his studies.

33. The Tribunal also places weight on the progress the applicant has made in completing her studies, noting that she has completed all of her General English courses and has progressed from the Pre-Intermediate level to complete the Advanced certificate, as well as on track to complete her IELTS Preparation course. The Tribunal notes that these courses were completed while the applicant held a Bridging visa, which did not require as a condition that the applicant maintain enrolment in a course of study. At the time of the hearing the applicant had completed all of her courses and had one day of study left to complete on her IELTS Preparation course. Accordingly, the Tribunal does not consider that the applicant is using the Student visa to maintain ongoing residence or to circumvent the intentions of the migration programme. On the applicant’s evidence she has a plan to use her English studies to obtain qualifications in Nursing or a related field and to then return to Colombia to work within such a field. The Tribunal makes no adverse findings regarding the applicant’s immigration history.

1. The Tribunal has had regard to the written statements provided by the applicant and, based on the information provided as well as her evidence at hearing, makes no adverse findings regarding the factors at clauses 9(a) or 11(b) of Direction No.69.

2. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.

3. Having assessed the applicant’s circumstances as a whole, the Tribunal is satisfied that the applicant genuinely intends to stay in Australia temporarily for her stated purpose of studying. While the Tribunal had some concerns regarding the series of relatively short English courses which the applicant has undertaken, as well as to why the applicant did not commence her studies until after her husband completed his studies in English, the Tribunal questioned the applicant extensively about these concerns and is satisfied that not only has she progressed to an Advanced certificate in English, but that she also had reasonable reasons for commencing her studies after her husband completed his. She has undertaken her studies in a manner to be expected of a genuine student, despite holding a Bridging visa. The Tribunal also notes that on the evidence before it, there is no issue of concern regarding the applicants’ relationship. The Tribunal is satisfied as to the value of the English studies to the applicant’s future, in particular her plan to undertake further studies in Nursing or a related field. The applicant has also given evidence of ties to Colombia which are likely to act as an incentive for her return there once she has completed further studies in Nursing in Australia.

4. 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).

   Does the applicant intend to comply with visa conditions?

5. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

6. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

7. The applicant has provided with her visa application an undertaking to comply with any conditions the subject of which the visa is granted. There is no evidence to demonstrate that this would not be the case. The Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

8. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

   Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

9. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

10. There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.

11. 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.

12. 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

13. 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.

    Frank Russo
    Member