Gikonyo (Migration)

[2018] AATA 2449

Gikonyo (Migration) [2018] AATA 2449 (19 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Tabitha Gikonyo

CASE NUMBER:  1622612

HOME AFFAIRS REFERENCE(S):           BCC2016/2632400

MEMBER:P Maishman

DATE:19 June 2018

PLACE OF DECISION:  Perth

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(a) of Schedule 2 to the Regulations.

Statement made on 19 June 2018 at 5:31pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine Gap in study – Evidence of personal circumstances – Birth of child – Separated from husband – Job opportunities in Kenya – Foreign qualifications highly valued in Kenya – Strong family connections in Kenya –  Decision made on review – Decision remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360, 499

Migration Regulations 1994 (Cth), Schedule 2 cl 500.212 Schedule 8 Condition 8202

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 14 December 2016 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 9 August 2016. 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) because the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. On 8 June 2018 the Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 22 June 2018. On 15 June 2018 the applicant provided further evidence and written submissions.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is a 33-year-old female citizen of Kenya. The applicant applied for the visa subject of this review on 9 August 2016. At the time of application she claimed to be married and her spouse was included on her application as an accompanying family member.

9. The delegate noted in in its decision dated 14 December 2016 that the applicant was first granted a Student 573 visa on 20 June 2012 valid until 15 September 2016. The delegate was concerned that the applicant’s course records show she completed a Diploma of Science (Health Studies) in September 2013 and was then enrolled to commence a Bachelor of Science (Nursing) which she did not commence. The delegate notes the applicant did not recommence study until July 2014 and notes a gap of 10 months. The delegate was concerned that the failure to continue studying was a breach of condition 8202. The delegate considered the presence of the applicant’s spouse in Australia; the relatively favourable economic circumstances in Australia; lack of substantial evidence of close family ties in Kenya; and lack of reasons for study weighed against a finding that the applicant intended genuinely to stay temporarily in Australia.

10. The applicant applied to the Tribunal on 30 December 2016 and provided a statutory declaration outlining her personal and study circumstances. On 26 April 2018 the applicant provided the Tribunal a written response to questions put to her by the Tribunal signed on 25 April 2018; a number of screen shots of relevant employment opportunities in Kenya; IELTS certificates from January to June 2014; a statement of purpose; hospital discharge summary from November 2015 and September 2016; birth certificates for her children; confirmation of enrolment in a Bachelor of Health Science at ECU; a submission from her representative and an academic transcript from her studies at PIB T. On 15 June 2018 the applicant provided the same documents as that received on 26 April 2018 with an updated submission from her representative.

11. The Tribunal had significantly more evidence and information upon which to base its decision.

12. 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 intends genuinely to stay in Australia temporarily.

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

13. 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?

14. 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 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.

15. 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.

    The applicant’s situation in her home country

16. The applicant stated she first came to Australia by herself, met someone hearing got married but a marriage did not work out. Her ex-husband returned to Kenya in 2016. She gave birth to her daughter in September 2016 and her mother came from Kenya to assist look after the baby. In June 2017 her mother and her daughter returned to Kenya to live while the applicant remained in Australia to complete her studies. The applicant’s mother, father, sister, child and ex-husband reside in Kenya. The applicant has not returned to Kenya since arriving in Australia in 2012.

17. The applicant has provided some detail of employment opportunities in Kenya and states that health promotion/OHS experts are in high demand especially if they have overseas qualifications.

18. The Tribunal accepts that the applicant’s strong family connections and employment opportunities are significant incentives for her to return to Kenya at the conclusion of her studies.

    The applicant’s potential circumstances and study history in Australia

19. The applicant states she has a few friends in Australia but no immediate relatives. She is presently working and studying full-time. ECU confirm the applicant’s studies are in good standing and, assuming units attempted are successfully completed, they expect she will complete the course in semester 2 2018. Since the delegate’s decision the applicant has separated from her husband and he has returned to Kenya.

20. The Tribunal does not consider that there are significant incentives for the applicant to remain in Australia at the completion of her studies.

21. The applicant states she was unable to commence her intended course Bachelor of Science (Nursing) because she could not obtain the requisite IELTS scores. The evidence shows the applicant attempted the IELTS four times between February and June 2014. The applicant’s inability to obtain the requisite scores inhibited her from commencing her nursing degree. The applicant then decided to enter into a similar stream of study in a Bachelor of Health Science (Health and Safety) for which her achieved IELTS score was sufficient.

22. The evidence shows that the applicant commenced the Bachelor of Health Science degree in August 2014 and that providing all units are passed should be completed at the end of 2018. The Tribunal accepts the applicant’s explanation about the gap in her studies between September 2013 and August 2014.

    Value of the course of the applicant’s future

23. The applicant has provided details of a number of job opportunities in Kenya in the Health and Safety industry. The advertisements generally indicate a Bachelors level Degree in a Health and Safety related field is required.  The applicant considers obtaining a Bachelor’s level degree would give her a competitive advantage over rivals competing for such positions. She says most mining companies operating in Kenya have headquarters in Australia and believes are being trained in Australian Health and Safety Standards would give her a comparative advantage to obtaining work in Kenya.

24. The Tribunal finds that the course applicant is studying is relevant and of significant value to her proposed future employment at home in Kenya.

    The applicant’s immigration history

25. The applicant arrived in Australia in 2012 on a Student 573 valid until 15 July 2016. Her original timetable was to complete a Diploma of Science between 8 October 2012 to 24 May 2013 and a Bachelor of Science (Nursing) between 15 July 2013 and 15 July 2016. The applicant’s migration agent has submitted the initial Diploma of Science did not until September 2013 so she could not commence her Bachelor of Science (Nursing) degree until the beginning of 2014 at the earliest. The agent submits, and IELTS score certificates as evidence, the applicant was unable to meet the requisite English requirements to enter a Nursing Degree. The applicant commenced her alternative Bachelor of Health Science in August 2014. Medical related delays, evidenced in the documents provided to the Tribunal, resulted in some delay completing the Bachelor level study.  

26. On the evidence the Tribunal accepts the delay in commencing a Bachelor level degree from July 2013 to July 2014 was essentially caused by the applicant attempting and failing to satisfy the English language requirement for the Nursing degree. The Tribunal finds it was reasonable in the circumstances for the applicant to make those attempts to pass the IELTS, and it was equally reasonable for her to change degrees when she realised she would not succeed in gaining the required IELTS score for Nursing.     

27. 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).

28. 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

29. 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(a) of Schedule 2 to the Regulations.

    P Maishman
    Member