Catabona (Migration)

[2019] AATA 2870

Catabona (Migration) [2019] AATA 2870 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sherlyn Catabona

CASE NUMBER:  1714394

HOME AFFAIRS REFERENCE(S):           BCC2017/1056509

MEMBER:Wendy Banfield

DATE:11 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 June 2019 at 10:41pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – originally arrived on Visitor visa – undertaken courses that don't align with stated goals – inconsistent evidence and supporting detail – incentive to return to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
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 Immigration and Border Protection on 19 June 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 applied for the visa on 17 March 2017. 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.

   Background

3. The applicant is a citizen of the Philippines and is currently 37 years old. She came to Australia on 21 May 2016 as the holder of a Subclass 600 Visitor Visa. The applicant extended her stay in Australia on 5 August and 24 November 2016. She then applied for a Student Visa onshore on 17 March 2017. Since applying for a Student Visa, the applicant had been enrolled in a Certificate III in Business Administration, a Diploma of Project Management, and an Advanced Diploma of Leadership Management. The applicant advised her enrolment had been cancelled as when her visa application was refused.

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) because it was determined the genuine temporary entrant criteria had not been met.

5. The applicant appeared before the Tribunal on 18 December 2018 to give evidence and present arguments.

   Evidence of the visa applicant

6. At the time of the hearing, the applicant had not been enrolled in a course of study. However, on 14 January 2019 the applicant provided a Letter of Offer for enrolment in a Diploma and Advanced Diploma of Business at Abbey College Australia.

7. Prior to the hearing the applicant had submitted evidence of her communications with a migration agent and a written statement dated 10 December 2018. She had previously provided evidence to the Department to support the application for review which has also been taken into account in this decision. The evidence to the Department consisted of a statement in support of the genuine temporary entrant criteria dated 8 March 2017, a Certificate of Marriage from the Philippines, the applicant’s passport information and confirmation of health cover.

8. During the hearing, the applicant explained her reasons for extending her stay in Australia while holding a Visitor Visa which were to attend family events. She also advised she decided to study in Australia because her aunt offered to provide her with support. In her written statement to the Department, the applicant set out her education and employment history in the Philippines. Prior to travelling to Australia in November 2016 to visit her aunt, the applicant had been employed in an accounting position in her home country.

9. The applicant advised she has an aunt and cousins in Australia while her parents, siblings, husband (separated) and daughter continue to live in the Philippines. She stated she was hoping to be able to improve her employment prospects after completing studies in Australia and in particular, would like to apply for a position as a Human Resource Manager. In a Statement to the Tribunal dated 10 December 2018, the applicant advised she was hoping to complete a Diploma and return to her family in the Philippines. She explained that she had accepted the opportunity to study in Australia after being encouraged by her aunt who offered to provide financial support and accommodation.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 meets the requirements of a genuine temporary entrant for study as required for the grant of a Student Visa.

12. 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?

13. 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.

14. 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.

15. The applicant’s circumstances in her home country are that her extended family including her husband (from whom she is separated) and her daughter continue to live in the Philippines. According to her evidence, prior to coming to Australia she had been employed first as a Marketing Assistant and then in an Accounting position. The applicant stated in her written evidence to the Department that she was invited to visit Australia by her aunt a few months after resigning from her Accounting job. However, during the Tribunal hearing the applicant stated she had still been employed when she came to Australia as a visitor and had taken unpaid leave. The Tribunal accepts the applicant has ongoing ties to her home country due to family members; but is concerned the applicant provided inconsistent information about her employment status at the time she travelled to Australia in 2016. The Tribunal places some weight in the applicant’s favour in assessing her incentive to return to the Philippines but also finds aspects of her evidence weigh against her.

16. In Australia the applicant was enrolled in courses in Business Administration, Project Management, and Leadership and Management. When the applicant’s enrolment was cancelled following the refusal of the visa, the applicant obtained a letter of offer to enrol in a Diploma and Advanced Diploma of Business. The applicant advised she was supported financially in Australia by her aunt who also provides the applicant with accommodation. The applicant advised in her written statement to the Department, that she planned to work as a Human Resource Manager after completing her studies. However, the applicant has enrolled in general Business and Management courses rather than Human Resources specifically. The Tribunal accepts the applicant enrolled and commenced studying after applying for a Student Visa but is not satisfied the applicant has undertaken courses that align with her stated goals or that she plans to return to the Philippines after completing an Advanced Diploma of Business.

17. Regarding the value of the course to the applicant’s future, the Tribunal accepts that completing Diploma courses in Australia may be of benefit in future. Nevertheless, as already stated the Tribunal has concerns about the relevance of the courses the applicant enrolled in previously and her most recent letter of offer given the applicant’s employment goals. The Tribunal finds there will be value to the applicant in further studies generally but is  not satisfied studying Business will meet the her needs. In this regard the Tribunal is only able to give minimal weight in favour of the applicant on this aspect of the genuine temporary entrant criteria.

18. The applicant’s immigration history refers both to her visa and travel history. In this case, the applicant arrived in Australia as the holder of a Visitor Visa that was granted on 5 August 2016. She then arrived in Australia on 21 May 2016 with the stated intention of a holiday for three months. The applicant extended her Visitor Visa twice with her third Visitor Visa expiring on 18 March 2017. The applicant enrolled to study and applied for a Student Visa shortly before her last Visitor Visa ended. At the time of applying for a Student Visa the applicant was intending to stay in Australia until December 2019. The letter of offer provided to the Tribunal dated 14 January 2019 was for a Diploma and Advanced Diploma of Business to be completed on 4 July 2021. The Tribunal is not satisfied that a person travelling on a Visitor Visa for a holiday of three months would change their plans so significantly. This is particularly the case when the applicant has a daughter in her home country. As already stated, the Tribunal was concerned that the applicant had provided inconsistent information about her employment status when she left the Philippines. For these reasons, the Tribunal finds the applicant’s immigration history weighs against her.

    Conclusion

19. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds some aspects of the case weigh somewhat in the applicant’s favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal finds the length of time the applicant plans to spend in Australia having arrived as a visitor to be significant and is not satisfied she had enrolled in for genuine purposes.

20. 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).

21. The Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212. 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.

    DECISION

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

    Wendy Banfield
    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.