Denysova (Migration)

[2021] AATA 1729

Denysova (Migration) [2021] AATA 1729 (20 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Larysa Denysova

CASE NUMBER:  1923874

HOME AFFAIRS REFERENCE(S):          BCC2019/2327089

MEMBER:Brian Camilleri

DATE:20 May 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 20 May 2021 at 10:58am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, travel and study history – continued successful study and close to completing current course – work history and value of course to future prospects in home country – decision under review remitted

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

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 9 August 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 30 April 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. A hearing was scheduled for 20 May 2021. The applicant appeared virtually via telephone before the Tribunal on that date to give evidence and present arguments. There was no agent. An interpreter in the Ukrainian language was present.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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)

6. 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?

7. 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.

8. 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

9. The hearing was attended via telephone by the applicant. The applicant’s agent was not present. 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 distinct and separate and distinct agencies.

10. 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 M17) completed by the applicant.

11. The applicant was also informed that the Tribunal’s review would involve a consideration of the applicants’ circumstances in her home country, the applicants’ circumstances in Australia, the applicant’s travel and movement record, the applicants’ academic record and the value of the course to the applicant’s future prospects and any other relevant matter.

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

13. 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

14. The applicant is 58 years old. Her father lives in her home country of Ukraine. Her mother is deceased. Her brother lives in Canada. She has two children who are currently in Australia.  Prior to entering Australia, she studied a six-year master’s course in Systems Engineering (Automated Control Systems) from 1979 to 1985.

15. The applicant ran her own business (an art-café) for ten years from 2006 to 2016. Prior to this, she was as the co-owner of an accountant/bookkeeper company that worked for construction companies for ten years (1996-2006). Among her assets she has listed an apartment in Sumy, Ukraine (her primary residence) valued at $A100,000.

    Applicant’s Circumstances in Australia

16. The applicant first arrived in Australia on 2 September 2017 on a three-month Tourist (FA 600) Visa valid until 2 December 2017. She departed within the stipulated time, returning to her home country for three months.

17. She arrived in Australia a second time on 11 March 2018 on a Student (Subclass 500) Visa valid until 30 October 2018. At the time she was enrolled in a General English Course. She has now completed that course.

18. On 8 December 2018 she was granted a second Student (Subclass 500) Visa valid until 21 May 2019. At the time, she was enrolled in a Diploma of Business course. Her application was rejected on 9 August 2019.

19. She listed annual living expenses of $18,000. She has worked as a kitchen hand and Woolworths staff member on a casual basis.

    Applicant’s Immigration History

20. The Tribunal had access to the applicant’s movement and immigration history, and it shows that the applicant arrived in Australia on 2 September 2017. Since then her movement and travel history records the following journeys in and out of Australia:

Departure from Australia	Arrival in Australia
Onshore
1	30/11/2017	11/03/2018
First Arrival	02/09/2017

1. The applicant’s travel record is not unusual. She has travelled to other overseas countries including Fiji and Cyprus, New York. She has not departed Australia since her last arrival in 2018 owing to travel restrictions the COVID pandemic. At the time of hearing Ukraine is n the Red Zone. There is no evidence she has breached any visa conditions.

   Applicant’s Academic Record and Progress

Course	Status
General English (Beginner to Advanced) 26 March 2018 to 7 September 2018	Finished
General English (Beginner to Advanced) 22 October 2018 to 21 April 2019	Finished
General English (Beginner to Advanced) 03 June 2019 to 26 July 2019	Finished
Diploma of Business (7 August 2019 to 8 June 2021)	Studying

1. At the time of making its decision the Tribunal had available it the applicant’s academic record as set out in the Provider Registration International Student Management System (PRISMS) (as at (13/01/2021). It showed the courses undertaken by the applicant. Those courses successfully completed have their status described as “Finished” (shaded in grey). Courses not completed are described as “Cancelled”.

2. The applicant has completed the three modules of her proposed General English course, which ended on 21 April 2019. She immediately commenced a Diploma of Business, which is due for completion on 8 June 2021. The Tribunal finds that the applicant has a proficient study record and appears to have achieved, or is in the course of achieving, her academic objectives.

   Value of Course to Applicant’s Future Prospects

3. The applicant stated she has been self-employed and running a business for the past twenty-five years. She realised that her self-taught business skills needed improvement and updating in order to compete in the international market. This would require English language skills and studying a formal business course. The applicant has been consistent between her stated academic goals and her study habits. She has completed her proposed courses. With her new qualifications she believes she can gain employment earning $30,000 per annum in her home country, which might rise to $100,000 within a few years. She will seek employment positions in human resources with large, international corporations operating in the Ukraine and elsewhere. In her responses to the Tribunal, the applicant has established the value of these courses to her future.

4. The Tribunal notes that the applicant has continued studying even after her Student Visa application was rejected and has only a few weeks to completion of her current course.

5. The Tribunal is required to make its decision on the facts and circumstances as they exist at the time the matter is under consideration by the Tribunal and not on the facts and circumstances as they existed at the time that the delegate considered the matter. Circumstances have changed and the applicant has demonstrated by her performance the validity of her claims and there is no reason to doubt that on completion of her course she proposes to return to her home country.

   Other Relevant Matters

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

7. 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).

8. 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.

9. 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

10. 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

    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.