Cagumbay (Migration)

[2018] AATA 5520

Cagumbay (Migration) [2018] AATA 5520 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jeffrey Andales Cagumbay

CASE NUMBER:  1705000

HOME AFFAIRS REFERENCE(S):           BCC2016/3962977

MEMBER:Adrienne Millbank

DATE:20 December 2018

PLACE OF DECISION:  Brisbane

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

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 20 December 2018 at 9:43am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine student who intends genuinely to stay in Australia temporarily – credible witness – complied with visa conditions – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 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 2 March 2017 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 was born in the Philippines in 1980 and is 38 years old at the time of decision. He first arrived in Australia on 27 August 2016 on a Visitor visa. He has a sister who lives in Brisbane.

3. The applicant applied for the visa on 24 November 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.

4. 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). The Delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

5. The Delegate noted that the applicant arrived on a Visitor visa with the stated intention of visiting a relative in Australia, and that he applied for a Student visa on the basis of his enrolment in: General English; a Certificate III and a Certificate IV in Commercial Cookery; and a Diploma of Hospitality Management, due for completion on 26 April 2019. The Delegate noted that the applicant had worked as a cook for considerable time, with his own business in the Philippines, and did not find compelling cause for him to study in Australia, at significant expense. The Delegate considered that the applicant could have pursued his career goals in the Philippines, and was not satisfied that he had demonstrated personal or economic ties in the Philippines sufficient to provide incentive to return.

6. The applicant appeared before the Tribunal on 11 December 2018 to give evidence and present arguments.

7. The applicant was assisted in relation to the review by his registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 genuinely intends to stay in Australia temporarily.

10. 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?

11. 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.

12. 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.

13. On 7 December 2018 the Tribunal received a written submission from the applicant’s agent and a statutory declaration from the applicant addressing the Delegate’s concerns; and further documentary evidence in support of the applicant’s claim to be a genuine temporary entrant for the purpose of study.

14. At hearing the applicant provided further information regarding his circumstances, his immigration history and the value of his courses to his future in the Philippines.

15. The applicant advised how he has worked as a cook since leaving school in 1999, without obtaining formal qualifications. He described how possessing such qualifications was not required at the time, but has increased in importance with the growing importance of tourism to the Philippines economy. He advised that tourism is of particular importance in his home province of Bohol.

16. The applicant described how he was offered a job by a guest when working as a chef in a resort in the Philippines, and as a result spent seven years as head chef in Nuuk, Greenland, in one of a chain of café style restaurants offering European and traditional Greenland food. He returned to the Philippines in 2013 and opened a business of his own, a car-wash combined with a café. He described the food he prepared in his own business as a step above street-food, but the environment as competitive. He felt he was stagnating, and sold his business before coming to visit his sister in Australia. He stated that at the time he intended to take a holiday and plan his next business move. The applicant’s sister works in a Brisbane restaurant, and the applicant described how he spent time eating around the city and absorbing the hospitality scene.

17. The Tribunal asked the applicant why, with his experience, he enrolled in certificate-level cookery courses. The applicant acknowledged that he found the coursework easy, but claimed, again, that having formal qualifications is now a prerequisite for cooking in the sort of business he envisages in the Philippines. He further argued that, as a cook, there is always something to learn, and he has learned from his courses in Australia, including, importantly, in the area of food hygiene and storage. He further explained that in order to globally market the sort of business he envisages, English skills are necessary, and he has been able to not only study English, but study in English, in Australia.  

18. In terms of the business the applicant envisages in the Philippines, he advised that he has inherited, along with other family members, land that was owned his grandfather, near the family’s home town of Lilo-an in Bohol. He described plans of growing organic farm produce and offering a menu based on local ingredients that would appeal to Western tourists.

19. Letters were provided from the applicant’s previous employers in the Philippines, confirming his employment at the Panglao Island Nature Resort in the Philippines, as a ship’s cook, and as head chef at Café Chili in Nuuk, Greenland. A copy of a letter was provided from the Greenland employer confirming and regretting the applicant’s resignation, and acknowledging his desire to pursue goals and opportunities in his homeland.

20. Evidence was provided that the applicant owns a house, a car and a motorbike and that his family owns farm property in the Philippines. The applicant advised that he has no partner or children and that his father has died, but that he still has a mother, sister and brother in Lilo-an in Bohol. He argued that he is economically sound in the Philippines, and pointed out that he departed Greenland of his own choice to return to the Philippines to start a business.

21. The Tribunal notes that the applicant’s final course of study in Australia will end on 26 April 2019, and that he confirmed at hearing that he is planning to return to the Philippines after this date.

22. The applicant presented at hearing as articulate, open and forthright. The Tribunal found him a credible witness and accepted his testimony.

23. Having considered the evidence and the circumstances of the applicant, 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?

24. 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.

25. 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).

26. There is nothing before the Tribunal to indicate that the applicant has not complied with the conditions attached to his Student or Visitor visas, or to cause the Tribunal to doubt his intention to comply with any of his visa conditions.

27. Certificates of Qualification were provided confirming that the applicant successfully completed his General English course at Advanced Level; his Certificate III course in Commercial Cookery; and his Certificate IV course in Commercial Cookery.  Records of results were provided for these certificate courses, showing the applicant passed all his units, and, at Certificate IV level, achieved mostly credits. A Certificate of Attendance, dated 6 December 2018, was provided certifying that the applicant’s attendance at his Diploma of Hospitality Management Cookery course has been 100 per cent. At hearing the applicant confirmed that his studies have gone well, and that he expects to successfully complete his final course, as noted, on 26 April 2019.

28. The applicant indicated that besides living and working in Greenland, he has visited Denmark and Norway. He advised at hearing that he has never had any problems with his visas, and there is nothing before the Tribunal to suggest that he has not complied with visa conditions in his travels to other countries. The applicant confirmed that he has never before been refused a visa.

29. As noted, the applicant presented at hearing as articulate, competent and open, and the Tribunal accepted his testimony.

30. 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?

31. 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)).

32. The applicant stated in his statutory declaration of 6 December 2018 that there is no civil or political unrest in the Philippines that affects him or his family, and that he does not have military obligations in the Philippines. At hearing, he confirmed that he has no reason not to return to his home country. He stated that he is looking forward to going home and starting up his new business. 

33. No other relevant matter was raised by the applicant or otherwise before the Tribunal.

34. 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.

35. 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

36. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Adrienne Millbank
    Member