Domes (Migration)

[2019] AATA 1809

Domes (Migration) [2019] AATA 1809 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Lorraine Ida Domes
Mr Gibson Ace Domes

CASE NUMBER:  1715110

DIBP REFERENCE(S):  BCC2017/957607

MEMBER:Stephen Conwell

DATE AND TIME OF

ORAL DECISION AND REASONS:          26 February 2019 at 12:37 pm (VIC time)

DATE OF WRITTEN RECORD:                15 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine student – does not genuinely intend to remain in Australia temporarily – no substantial economic ties or personal assets in home country – economic incentives in Australia – not pursuing studies for academic progression – using student visa to maintain ongoing residence in Australia – business studies – personal carer – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.312

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 26 June 2017 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 26 February 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in file number 1715110, Ms Lorraine Ida Domes. The applicant applied for her Student visa on the 10 March 2017. By decision dated 26 June 2017 a delegate on Department of Immigration and Border Protection refused the application on the basis that the delegate was not satisfied that the applicant was a genuine temporary entrant, and therefore did not satisfy clause 500.212 of schedule 2 of the Migration Regulations. On the basis of that finding, the dependent applicant, who is the applicant's husband, Gibson Ace Domes, was also found to not meet the genuine temporary entrant criterion in clause 500.312 of schedule 2 of the regulations.

4. The applicant applied to the Tribunal for a merits review of that decision, and in her application she attached a copy of the decision record.  The applicant appeared today to give evidence and present arguments.  It was explained to the applicant that in to be eligible for the grant of a Student visa, a person must be both a genuine student and genuine temporary entrant.  The decision record which the applicant provided to the Tribunal was discussed in the course of the hearing. 

5. The Tribunal notes that the delegate expressed her serious concerns about the applicant's true intentions in Australia, noting that the delegate was not satisfied that the applicant had substantial economic ties or personal assets in her own country, the Philippines, to act as an incentive for her and her husband to return there.

6. The delegate was not satisfied that the applicant had demonstrated any clear and substantial improvement or academic progress from her proposed study, given that prior to arriving in Australia the applicant had already completed a Bachelor of Science of Nursing in her home country of the Philippines.  The delegates found that whilst the applicant has her parents, her brother and her son back in the Philippines, the applicant did arrive in Australia with her husband, who is a dependent applicant on her visa, and who has remained with her for the length of her stay onshore.  As a consequence of which the delegate was not satisfied that the applicant had sufficient family ties or economic or personal assets which would be a significant incentive for her to return there.

7. Ultimately the delegate found that the applicant was using the Student visa to maintain residence in Australia.  As explained in the hearing introduction, the decision-makers must have regard to Direction 69 when considering a Student visa application.  And the fact that in Direction 69 are an applicant's circumstances in their own country, the potential circumstances in Australia, and whether they are misusing the Student visa program to retain ongoing residence in Australia.  The next factor is the value of the courses or proposed courses to an applicant's stated business or career goals.  The next factor is an applicant's immigration history, both here in Australia and overseas.  And finally, any other relevant matter. 

8. It was explained to the applicant that these factors are not intended to be a checklist, but are a guide for decision-makers when determining whether or not any particular applicant on the whole meets genuine temporary entry requirements.  The Tribunal explained that it would take a fresh look at the application, as it is not bound by the department's decision.  However, the Tribunal explained it must apply the same migration laws. 

9. The Tribunal also noted that when the applicant was invited to today's hearing, along with that invitation a copy of Direction 69 was appended.  The Tribunal is therefore satisfied that the applicant is apprised of the factors in Direction 69 and the importance of Direction 69 to the decision-makers in - a decision- maker when assessing a Student visa application.  The applicant provided a GTE statement to the department in support of her Student visa application.  The applicant also provided two written statements to the Tribunal, as well as copies of her academic transcripts and statement of academic results in respect of her studies in Australia. 

10. In this morning's evidence the applicant confirmed that she and her husband arrived in Australia in September 2013 on the basis of a 572 study visa afforded to the applicant to study a Certificate III and Certificate IV in Aged Care.  In her written statements to the Tribunal and in her sworn evidence the applicant stated that about the time that she completed the Certificate III in Aged Care qualification she obtained employment as a personal carer attendant in Aged Care in around February 2014, and has continued working there to date.  She works there 20 hours per week.  The applicant explained that her husband works as a painter, and that he also complies with his visa conditions in respect of his work hours. 

11. Shortly after obtaining work as a personal carer attendant the applicant enrolled in a Bachelor of Accounting in March 2014, and it would seem her evidence is that she did so on the basis of advice from an aunt who encouraged her to take up accounting as a potential career back in her home country of the Philippines.  However, only two months after enrolling in the Bachelor of Accounting the applicant determined it was not for her and she enrolled in a Bachelor of Business and Community Service and Management with the same educational provider.  That enrolment was in July 2014.

12. The applicant's enrolment in the Bachelor of Business was cancelled due to plagiarism.  That cancellation occurred in November 2015.  The applicant's evidence is that the plagiarism related to improper or lack of proper citation in regard to information the applicant obtained from other sources, principally online, and which she provided no attribution for when including in her written work 

13. The delegate's position refers to a period of non-enrolment from 16 February 2014 to 28 July 2014.  The Tribunal questioned the applicant in regard to this observation by the delegate and is satisfied by the applicant's response that she did remain enrolled over that period, which is of some five months.  And the applicant provided evidence of academic transcripts which support her claim to having enrolled over that period; therefore the Tribunal draws no adverse conclusions in respect of that point which is made in the delegate's decision. 

14. In respect to the applicant's circumstances in the Philippines, she confirmed the evidence in her written statement that her parents, her brother, and her eight-year old son all reside in the Philippines.  The applicants - that is the applicant and her husband - make regular visits to the Philippines on an annual basis to visit her family, in particular her son.  The applicant advised that at present she and her husband had no property assets or significant economic assets in the Philippines.  However, she claims that the family home will eventually be passed to her upon her parents passing away.  The applicant confirmed that there are no military, social, ethnic, religious, or any other factors which might act as a disincentive for the applicants to wish to return to the Philippines.

15. In respect to the applicant's potential circumstances in Australia, the applicant stated that she and her husband live in a shared house with others.  Both she and her husband work:  the applicant maintaining her employment as a personal carer for an Aged Care business in Melbourne; whilst her husband has maintained employment as a painter for various employers.  The applicant and her husband are in regular contact with their family in the Philippines.  She stated that she speaks to her son every day and generally keeps in regular contact with her family via social media. 

16. The applicants have established a comfortable lifestyle here in Australia in the course of their five and a half years onshore.  They have established friends and neighbours, and they have maintained manageable contact with their family back in the Philippines via the telephone and social media generally.

17. The Tribunal takes into account the divergent economic circumstances between the applicant's home country of the Philippines and Australia.  Given the disparity between the economic circumstances between those countries the Tribunal cannot be satisfied that the applicant has significant incentive to return to the Philippines.  The applicant's evidence is that she and her husband have been able to earn sufficient money whilst onshore to be able to send money back to the Philippines to support their son.  However, the Tribunal is not satisfied that the applicant's intention to remain in Australia is motivated by a genuine intention to study and progress academically. 

18. In regard to the value of the course or courses to the applicant's future career overseas, the applicant explained that despite having a Bachelor of Nursing which she obtained in 2006 in the Philippines, she had not practised as a nurse and therefore the study of the Certificate III in Aged Care in Australia, and more recently the completion of her Diploma of Nursing; together with her current enrolments in vocational courses, being an Advanced Diploma of Leadership and Management and a Diploma of Community Service and Management, will add value to career prospects upon her return to the Philippines. 

19. The Tribunal accepts that the applicant's work experience in Australia and her studies may add some incremental value upon her return to the Philippines; however, the Tribunal not persuaded that her current studies, and particularly the time that she has spent away from the Philippines, could be said to have added value to the applicant's Bachelor of Nursing qualifications which she obtained before arriving in Australia.  Overall the Tribunal is not satisfied that the applicant has provided a satisfactory explanation of how her current studies will improve her career or remuneration prospects upon her return to the Philippines.

20. The Tribunal believes that the applicant had several points in the course of her time in Australia at which to return to the Philippines:  she might have completed the Certificate IV in Aged Care as per her initial intentions when she first arrived in Australia; having decided not to complete that Certificate IV and switching to a Bachelor of Accounting, and then only a few months later switching again to a Bachelor of Business and Community service shows that the applicant is not pursuing studies with the goal of academic progression.

21. The second point at which the applicant and her husband might have returned to the Philippines was when the Bachelor in Business and Community Service and Management was cancelled because of charges of plagiarism.  However, the applicant and her husband chose not to depart the country at that point; instead the applicant enrolled in a Diploma of Nursing and Bachelor of Nursing, which effectively - certainly with respect to the Diploma of Nursing – is at a vocational and therefore much lower qualification than the tertiary qualification she already had from the Philippines.  The applicant was unable to satisfactorily explain to the Tribunal how such enrolments were evidence of academic progression during her time in Australia. 

22. The next point at which the applicants might have departed the country was whilst waiting for the Tribunal hearing.  The applicant completed the Diploma of Nursing in 2017, and at which point they might reasonably have decided to depart the country and return to their families, and in particular her son, to embark on a nursing career which she indicates is what her current intentions are. 

23. In regard to the applicant's immigration history, she indicates that neither she nor her husband has applied for any other visas in Australia or overseas, and the Tribunal accepts that evidence.

24. Having regard to the applicant's evidence, both oral and written, which she has tendered to both the Department of Home Affairs and to the Tribunal, as well as the applicants oral evidence today, and having regard to the factors in Direction 69, the Tribunal is not persuaded that the applicant is a genuine student with a genuine intention to remain temporarily in Australian.  The applicant has raised no other relevant matters to be considered.

25. Therefore having considered the applicant's circumstances as a whole, including the issues in Direction 69, the Tribunal is not satisfied that the applicant is a genuine student who intends genuinely to reside temporarily in Australia. Therefore the Tribunal finds that the applicant does not meet clause 500.212. It follows that the applicant's husband, who is a dependent applicant, Gibson Ace Domes, does not meet clause 500.312 of schedule 2 of the regulations.

26. It is therefore the decision of the Tribunal to affirm the decisions under review. 

    DECISION

27. The Tribunal affirms the decisions under review. The time is 12.37 pm.  This hearing is now concluded.

    Stephen Conwell
    Member