Campo Zambrano (Migration)

[2020] AATA 445

Campo Zambrano (Migration) [2020] AATA 445 (19 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Alexander Campo Zambrano
Mrs Flor de Maria Catano Murillo

CASE NUMBER:  1909102

HOME AFFAIRS REFERENCE(S):          BCC2019/300544

MEMBER:Noelle Hossen

DATE19 February 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 19 February 2020 at 1:28pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – English language course – studies discontinued – pending Parent visa application – intention to live in Australia permanently – strong ties with Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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 Home Affairs on 25 March 2019 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 1 February 2019. 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicants appeared before the Tribunal on the 17 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

5. The applicants were assisted in relation to the review by their registered migration agent.

6. On the15 October 2019 the Tribunal sent a request for further information pursuant to section 359(2) to the applicants.

7. On the 29 October 2019, the applicants provided the Tribunal with various documents which included the following:  Written form as requested by the Tribunal, a copy of the first named applicant’s CoE, Policy Certificates for both applicants for overseas student cover, a letter from the first named applicant’s employer dated the 29 January 2019, a translation of the marriage certificate between both applicants, a Land registry Form being a copy of a bank statement from the Commonwealth Bank setting out that the first named applicant had $6457.08 as at 28/10/2019 and a copy of the second named applicant’s bank statement from the Commonwealth Bank that she had $2044.79 as at 2/7/2019

8. The applicants had provided the Tribunal with a copy of the Decision of the delegate of the Department of Immigration and Border Protection.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. 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?

12. 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.

13. 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.

14. The first named applicant was born on the 19 March 1973 and is 46 years of age and is married to the second named applicant who was born on the 29 July 1963 and is 56 years of age.

15. The first named applicant( hereinafter referred to as” the applicant”) was employed as a truck driver prior to his entry to Australia. In fact the letter from his employer that was provided to the Tribunal indicated that he was on unpaid leave. He graduated from High School in 1993.He says that he was earning approximately $30,000 per annum in his home country.

16. The applicant states in his written information to the Tribunal that he first arrived in Australia on the 30 May 2014.He applied for the current visa in February 2019.He had previously lodged a student visa application in January 2015 which was refused. He applied for a 143 Parent Visa on the 26 October 2017 and he stated that the visa has yet to be determined yet.

17. The applicant was proposing to study English at the National Institute Technology and provided the Tribunal with a copy of that CoE(current certificate of enrolment) on the 29 October 2019. He had enrolled in that course in February 2019 which he could have completed in March 2020.However he had not completed it and now seeks to study English at another college. He did not make it clear in his written submissions that the CoE filed on the 29 October 2019 was no longer relevant.

18. In response to the question in writing as to whether he has always been enrolled in a registered course whilst the holder of a student visa, the applicant stated that he was not enrolled.

19. In response to the question as to whether he had a current CoE in writing to the Tribunal on the 29 October 2019 he stated that he was currently enrolled.

20. On the CoE that he provided to the Tribunal on the 29 October 2019 it states that he plans to study from the 2/2019 to the 1/3/2020.However he has stated that he did not complete the course and there is no evidence that he paid for the entire course. He also states that he was not enrolled from the 4/2019 to the 10/2019, which means that he did not have a current certificate of enrolment at the time that he submitted the Form to the Tribunal.

21. On the day of the hearing being the 17 February 2020 the applicant filed a current Certificate of Enrolment which is stamped as being received by the Tribunal at 12.51 pm. The document was created and stamped at 15.09 Eastern Standard Time on the 17 February 2019.The Applicant was proposing to study at the Perth International College from the 13 April 2020 to the 16 April 2021.He has paid $2200 towards the tuition fee.

22. He stated in his form filed on the 29 October 2019 that he had chosen the education provider being the National Institute of Technology as, his agent had recommended it and he had visited the school and was shown the facilities. He stated that there were a lot of students from South America and he could practice his English. However on the day of the hearing the applicant appears to have changed his mind about the education provider and there is no evidence before the Tribunal as to why he changed providers.

23. The Tribunal attaches very little weight in favour of the applicant’s case due to the fact that the applicant has merely filed the Form which was created on the day of the hearing and filed at 12.51 pm as the hearing was scheduled for 1 pm, to make sure that he satisfied the requirement that evidence must be provided that he is enrolled in a registered course.

24. The applicant and his wife has spent a great deal of time in Australia since 2015.They have been in Australia for 6 months from April 2014, a further 6 months from October 2015, 10 months in April 2017 and 20 months in February 2018.They were on a tourist visa from February 2018 to 2019 and then obtained a bridging visa and have remained on that visa in Australia pending the hearing on the 17 February 2020.

25. They have also travelled to Indonesia, Singapore and Thailand and have obviously complied with the immigration laws of the other countries as there is no evidence of noncompliance.

26. Apart from the visa refusal for the student visas in 2015 and 2019 the applicants do not have any other refusals from the Australian Department of Immigration and Protection.

27. The applicant stated in writing that he has chosen to study English in Australia as the progress in Colombia would be slow. He also stated that “in Australia we mostly expend our time at home with the grandchildren and they have limited contact with the community. We only interact with the community when we take the grandchildren to the childcare or school or when we take them to the park.” They say that they want to learn English because at home in Australia we all speak Spanish and they struggle to communicate with people even though they have been in Australia many times.

28. It was made very clear at the hearing that the applicant’s wish is to live in Australia permanently and the whole purpose of his application to study English in Australia is so that when the time comes and he is granted permanent residency that he will be proficient in English. He stated that they have an application pending before the department and they are waiting for the result of that application.

29. They did state in writing to the Tribunal that they will use English after the grant of the 143 Parent visa as they expect to become Australian residents. They stated that the grant is expected to take place in the next 4 years. They do not expect to use English in their home country for work.

30. The applicant has 3 step children in Australia. They are all permanent residents. There are 2 grandchildren. The applicant does have siblings who reside in Colombia but his wish is to live in Australia to be near the children and grandchildren. He did not hide the fact that his aim in learning English is to use it when he is granted permanent residency in Australia.

31. The Tribunal finds that the applicants do not genuinely intend to stay in Australia temporarily because the applicant clearly stated that he wished to be a permanent resident of Australia. It requires that the applicants must unqualifiedly intend his and her stay to be temporary. They have already applied for a visa to remain as permanent residents of Australia. The applicant said so, in writing and at the hearing. They have been in Australia since the application was made to appeal the decision of the Department and the applicant did not continue to study the course of study.

32. The applicant’s ties with Australia are strong and he does not have any incentive to return to his home country.  He confirmed that he wishes to remain in Australia permanently.

33. The applicant confirmed that the proposed course will not assist his prospects of employment in his home country. He is studying so as to be able to communicate in Australia when he is granted permanent residency and expects that the visa application will take 4 years.

34. The course has no relevance to the student’s past or future employment. He worked as a truck driver in his home country and confirmed that he will have no difficulties returning to his old job as he has a lot of connections in his home country.

35. The applicant is not studying English so as to improve his remuneration in a country other than Australia, as he made it clear that the study would help in Australia in the future for him to find employment and to communicate with the community and to find work.

36. The Tribunal recognises the applicant’s candour and honesty in conceding the points as set out in paragraph 32, 33 and 34 but nevertheless weighs these factors in favour of affirming the decision of the Department.

37. On the evidence and submissions before the Tribunal, the Tribunal finds that the applicant has not made any academic progress since arriving in Australia, in the course that he held the Certificate of Enrolment for. As such, the Tribunal is not satisfied that the applicant is a genuine student, for entry and stay, as a student, in Australia.

38. The applicant does not have to do military service in Colombia and there is no political or civil unrest.

39. 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).

40. 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.

41. The second named applicant has applied for a visa on the basis of being a member of the first named applicant’s family unit and therefore their application is determined by the first named applicant’s Application.

    DECISION

42. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Noelle Hossen
    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

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

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

    8.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

    9.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.

    10.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

    11.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

    12.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

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

    14.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

    15.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

    16.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.