Cardenas Castaneda (Migration)

[2021] AATA 2642

Cardenas Castaneda (Migration) [2021] AATA 2642 (6 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Julia Liliana Cardenas Castaneda

CASE NUMBER:  1909439

HOME AFFAIRS REFERENCE(S):          BCC2019/1030322

MEMBER:Brian Camilleri

DATE OF DECISION:  6 June 2021

PLACE OF DECISION:  Sydney

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 06 June 2021 at 12:00pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine applicant for entry and stay as a student temporarily – study is consistent with the applicant’s current level of education – current COE provided – applicant is currently enrolled – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, 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 3 April 2019 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 1 March 2019. 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) and the applicant did not comply with the genuine temporary entrant criterion.

4. The applicant appeared before the Tribunal on 30 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

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 matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 complies with the genuine temporary entrant criterion.

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

1. 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?

1. 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.

2. 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.

   Hearing – 30 November 2020

3. The hearing was attended by the applicant and her migration agent. It was explained to the applicant that the law which is applied by the Tribunal is the same law, which is applied by the Department of Home Affairs (the Department), but the Tribunal and the Department are separate and distinct agencies.

4. The applicant was informed that the Tribunal Member had access to:

   ·files of both the Department and the Tribunal relevant to their visa application and visa review;

   ·the delegate’s decision;

   ·a copy of the travel and movement record of the applicant showing his movements to and from Australia;

   ·the PRISMS (Provider Registration International Student Management System) record relevant to the applicant, listing all courses in which he had enrolled, the duration of the courses and whether the courses were cancelled, finished, completed, studying or approved for future study.

   ·the information in the response to the Tribunal’s request for student visa information (Form MR17) completed by the applicant.

   ·The Tribunal’s review would involve a consideration of the applicant’s circumstances in their home country, the applicant’s circumstances in Australia, the applicant’s travel and movement record, the applicant’s academic record and the value of the course to the applicant’s future prospects and any other relevant matter.

13.Further the applicant was informed that the Tribunal was required to consider the facts and circumstances as they stood at the date of its decision and not the facts and circumstances as they stood as at the date of the delegate’s decision.

14.The Tribunal also informed the applicant that in conformity with the provisions of the Migration Act 1958 (Cth) (s359A) the Tribunal would put to her any information relied upon which in terms involved material comprising a rejection, denial or undermining of her case and she should use the hearing as an opportunity to correct, explain and address any such material or information and concerns.

Applicant’s circumstances in home country

1. The applicant is forty-five (45) years old. Her parents, sister and twenty-seven (27) year-old son live in her home country of Colombia. Prior to entering Australia, she had studied four courses: (a) Diploma of Leadership; (b) Diploma of Conflict Resolution (c) Certificate in Policy and Tourism Management; (d) Professional Certification in Onboard. She worked primarily in hotels and hospitality in Colombia.

2. The applicant worked for seven years on international cruise lines as a manager of customer relations. She listed four employment positions from 2001 to 2015: (a) credit analyst (earning $8,400 per annum); (b) event organiser (earning $6,000 per annum); (c) guest relations manager (earning $6,562 per annum); (d) administrative assistant (earning $7,200 per annum). The applicant declared an apartment in Bogota valued at $50,000 as an asset. Her son lives in the apartment. He fell ill recently and the applicant returned to look after him for a few months. The applicant stated that she had shares and savings in Colombia which are managed by her mother.

   Applicant’s circumstances in Australia

3. The applicant first arrived in Australia on 7 April 2016 on a Student (TU570) Visa valid until 21 October 2016. On 21 October 2016 she was granted a second Student (Subclass 500) Visa, valid until 1 March 2019.

4. On 1 March 2019 she applied for a third Student (Subclass 500) Visa. She was enrolled in three courses: (a) English for Academic Purposes (IELTS Preparation); (b) General English (Elementary to Advanced); (c) Bachelor of Tourism and Hospitality Management. This last course is due for completion on 7 July 2023. Her application was rejected on 3 April 2019.

5. The applicant listed four employment positions held in Australia: (a) cleaner (earning $13,150 per annum; (b) food and beverage attendant (earning $9,568 per annum); (c) bistro attendant (earning $14,976 per annum); (d) food and beverage attendant (earning $15,600 per annum). She stated at hearing that she was currently working twenty (20) hours per week in customer relations as well as in food and beverage service, mainly for catered VIP events around Sydney. The applicant lives in a share house in Rockdale, NSW. She enjoys her work and wishes to obtain her bachelor’s degree. She listed annual living expenses of $21,156.

   Applicant’s immigration history

6. Since her arrival in Australia on 07/04/2016 the applicant has made the following trips to and from Australia:

Trip	Departure from Australia	Arrival in Australia
Onshore
2	12/01/2019	10/02/2019
1	02/11/2017	30/01/2018
First Arrival	07/04/2016

1. The applicant has made two trips outside of Australia, on one occasion returning to care for her adult son (who had fallen ill). She has been granted two Student Visas prior to her latest application. There is no evidence before the Tribunal that she has breached any visa conditions.

   Applicant’s Academic Record and Progress

2. At the time of making its decision the Tribunal had available to it the applicant’s academic record as set out in the Provider Registration International Student Management System (PRISMS). It showed the following courses undertaken by the applicant. Those successfully completed have their status described as “Finished” (and shaded in grey). Cancelled courses were recorded.

Course	Status
Bachelor of Tourism and Hospitality Management (14/11/2020 to 24/06/22)	Studying
Bachelor of Tourism and Hospitality Management (14/11/2020 to 07/07/2023)	Cancelled
General English (Elementary to Advanced – 2 to 60 weeks) (23/03/2020 to 28/08/2020)	Finished
English for Academic Purposes (13/01/2020 to 20/03/2020)	Finished
General English (Elementary to Advanced – 2 to 60 weeks) (13/01/2020 to 20/03/2020)	Finished
General English (Elementary to Advanced – 2 to 60 weeks)	Cancelled
General English (Elementary to Advanced – 2 to 60 weeks) (19/08/2019 to 08/11/2019)	Finished
English for Academic Purposes (19/08/2020 to 08/11/2020)	Cancelled
Advanced Diploma of Hospitality Management (12/08/2019 to 16/02/2020)	Cancelled
Advanced Diploma of Hospitality Management (08/07/2019 to 13/01/2020	Cancelled
Advanced Diploma of Business (25/06/2018 to 23/11/2018)	Cancelled
Advanced Diploma of Program Management (07/05/2018 to 05/05/2019)	Cancelled
Advanced Diploma of Business (07/05/2018 to 05/05/2019)	Cancelled
Diploma of Hospitality Management (19/02/2018 to 11/08/2019)	Finished
Diploma of Hospitality Management (15/01/2018 to 07/07/2019)	Cancelled
Diploma of Business (08/01/2018 to 08/06/2018)	Cancelled
Diploma of Project Management (03/10/2017 to 20/04/2018	Cancelled
Certificate IV in Business (26/06/2017 to 24/11/2017)	Cancelled
Certificate IV in Spoken and Written English (24/04/2017 to 24/11/2017)	Finished
Certificate IV in Spoken and Written English (07/11/2016 to 05/05/2017)	Cancelled
Certificate III in Spoken and Written English (24/10/2016 to 21/04/2017)	Finished
English Language Programs (11/04/2016 to 23/09/2016)	Finished

1. The applicant first arrived in Australia on 7 April 2016. In that time, she has completed:

   ·  English Language Programs (11/04/2016 to 23/09/2016)

   ·  Certificate III in Spoken and Written English (24/10/2016 to 21/04/2017)

   ·  Certificate IV in Spoken and Written English (24/04/2017 to 24/11/2017)

   ·  Diploma of Hospitality Management (19/02/2018 to 11/08/2019)

   ·  General English (Elementary to Advanced – 2 to 60 weeks) (19/08/2019 to 08/11/2019)

   ·  General English (Elementary to Advanced – 2 to 60 weeks) (13/01/2020 to 20/03/2020)

   ·  English for Academic Purposes (13/01/2020 to 20/03/2020)

   ·  General English (Elementary to Advanced – 2 to 60 weeks) (23/03/2020 to 28/08/2020)

2. The applicant came to Australia to study English and complete a bachelor degree related to tourism and hospitality. She has taken some time to complete a total of eight (8) courses/modules. The applicant is fluent in English. She stated her English language level was currently upper-intermediate. The applicant has completed a Diploma of Hospitality Management.

3. The applicant provided the Tribunal with a current CoE for a Bachelor of Tourism and Hospitality Management course, which commenced on 16 November 2020 and is due for completion on 24 June 2022. The applicant has provided an academic transcript to demonstrate she has been attending this course. At hearing, there was discussion as to the reasons for the cancellation/postponement of various courses, to which the applicant provided adequate explanation. She has been studying with very few (and always short) gap periods between her courses. The applicant explained that she was able to obtain credits from her previous studies in order to shorten the length of her bachelor degree from three years to two years. Her PRISMS record also confirms that her course is now due for completion one year earlier than initially anticipated (previously it was due for completion on 7 July 2023; it is now due for completion on 24 June 2022).

   Value of Course to Applicant’s Future Prospects

4. The applicant has worked most of her adult life in hospitality and tourism. In Colombia, she worked in well-known hotels. She worked for seven years in international cruise companies. She spent much of her adulthood focusing on the welfare and wellbeing of her son (who, as mentioned, is now an adult himself). She stated that she now has the time, money and experience to fulfill her dream of earning an internationally recognised bachelor qualification as a mature-age student. Her study aims are consistent with her work background and her previous studies in her home country, as well with the part-time employment she undertakes in Australia.

5. The applicant’s aim has been to improve her English and gain her bachelor qualification. Her efforts in previous courses have resulted in several subjects being credited towards her current degree. The effects of these academic credits has shortened the duration of her proposed course. She stated she will seek employment, upon completion of this latest course, in five-star hotels in USA and/or on international cruise ships at the managerial level. With the advantage of obtaining her prospective qualification, she expects to earn between USD$70,000 and USD$75,000 per annum, which represents and increase on her previous income.

6. The Tribunal is required to make its decision on the facts and circumstances existing as at the date of the Tribunals decision and not the facts and circumstances as they existed at the date of the delegate’s decision. The decision under review (at the time it was made by the delegate) was reasonable and appropriate but circumstances have changed since that time.

7. The applicant has demonstrated by her performance the authenticity of her claims and there is no reason to doubt that on completion of his course she proposes to leave Australia and pursue her ambitions. She has established the value of the courses to her future career prospects and income earning potential.

   Other Relevant Matters

8. The Tribunal has considered whether there is any other matter that is relevant to the assessment of the applicant's genuine intention to temporarily stay in Australia and finds that there are no other relevant matters for consideration.

9. 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).

10. 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.

11. 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

12. 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.

    Brian Camilleri
    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

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

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

3. 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

1. 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.

2. 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

1. 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

1. 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

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

2. 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

1. 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

1. 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.