Gjoni (Migration)

[2021] AATA 5217

Gjoni (Migration) [2021] AATA 5217 (20 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Francesk Gjoni

CASE NUMBER:  1918222

DIBP REFERENCE(S):  BCC2015/3022821

MEMBER:Damian Creedon

DATE:20 October 2021

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 572 Vocational Education and Training Sector visa:

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 20 October 2021 at 5:22pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Federal Circuit and Family Court remittal – genuine temporary entrant – motive for studying in Australia – study history – Partner visa application – future career pathway – family ties to Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 572.223

CASES
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16

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 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. The applicant applied for the visa on 16 October 2015. The delegate decided to refuse to grant the visa on 31 May 2016.  The applicant applied to the Tribunal for a review of the delegate’s decision.

3. The Tribunal affirmed the delegate’s decision by a decision made on 31 January 2018 (First Tribunal Decision). 

4. The applicant appealed the First Tribunal Decision to the Federal Circuit and Family Court (as that court is now named) (FCFCOA) by an application filed on 7 March 2018.

5. On 4 June 2019 the FCFCOA made orders that the applicant’s visa application be remitted the Tribunal for reconsideration.

   Reconsideration

6. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)     the Minister is satisfied that 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)     …

9. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

10. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

11. In Kumar v Minister for Immigration and Border Protection[1] the Full Court of the Federal Court held that the Direction requires that, in reaching the state of satisfaction required by cl 500.212(a), the decision maker should turn his or her attention to each factor during the decision-making process and consider whether and how that factor should be brought to bear in reaching that decision.[2]  The Court went on to note that:

    [The Direction] does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case.  Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.[3]

    [1] [2020] FCAFC 16 (24 February 2020).

    [2] Kumar, Para [82].

    [3] Kumar, Para [96].

    Overview of evidence

12. The applicant is a 45-year-old Italian citizen who first arrived in Australia on 27 June 2014 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa.

13. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

14. According to the evidence submitted by the applicant, since arriving onshore he has successfully completed the following courses:

Course Name	Date Commenced	Date Completed
Diploma of Management	05/2015	05/2017
Intensive English	11/2015	04/2016
Certificate IV in Marketing and Communication	07/2017	01/2018
Diploma in Marketing and Communication	01/2018	01/2019
Diploma of Business	08/2019	08/2020
Advanced Diploma of Business	08/2020	08/2021

1. The applicant is presently studying a 12-month Advanced Diploma of Leadership and Management that he commenced in August 2021.

2. The applicant appeared before the Tribunal on 12 August 2021 to give evidence and present arguments.  Where relevant, the applicant’s evidence to the Tribunal is referred to in its analysis below.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant was assisted in relation to the review by his registered migration agent.

5. The applicant provided a written statement in support of his application.  The statement may be summarised as follows:

   a.Although he was married with two children in Italy, the applicant now has a new partner who is an Australian citizen.  The couple have two children together who are also Australian citizens.

   b.The applicant’s children with his previous wife are also now in Australia having applied for Student visas.  His previous wife is in Australia and has applied for a Student guardian visa.

   c.The applicant has applied for an offshore Partner 309 visa based on his relationship to his new Partner.

   d.The applicant expected that his Partner visa application would be finalised in mid-2020, however it has been delayed by the COVID-19 pandemic; he states:

   It is a requirement of the 309 visa that it can only be granted when I am outside of Australia.  I am not currently able to travel outside of Australia and so the application cannot be finalised. There are no other issues with the application – we have completed all other requirements, including interviews and providing final police checks. We have been given no indication that the application will be refused, and expect that it will be granted as soon as I am in a position to travel offshore. The application can be refused while I am in Australia and this has not occurred.

   e.Throughout this period, the applicant has continued with his studies.

   f.The applicant has completed the course of study that was the subject of the initial application, however, he is now undertaking a further study pathway that will carry him through until 2022.

   g.The applicant states:

   This clearly shows that I am a genuine student who is committed to his studies. If I was just using the Student visa to maintain ongoing residence in Australia, there was no need for me continue studying after the initial refusal by the Tribunal. I could have simply worked full time throughout the Court process and until I had no other appeal options.

   Similarly, the fact that I continue to pay student fees shows I am not just trying to ‘buy time’. Again, I could have stopped his enrolment at any time during this appeal process and just worked if all I cared about was extending his time in Australia.

   h.The applicant asserts that he is aware that there is an inherent tension between seeking a permanent visa in Australia based on his relationship and the Student visa.  He states, however, that if his Partner visa is refused, he will leave Australia at the conclusion of his Studies.

   Analysis and findings

6. The Tribunal discussed with the applicant his motive for studying in Australia and his history as a student here.  The applicant stated that when he first arrived onshore his plan was to study to improve his English, and that he did so at the behest of his employer in Italy.  He stated that his employer was contemplating opening market opportunities in the Asia-Pacific. 

7. When pressed by the Tribunal as to why he chose Australia specifically, rather than, for example, the United Kingdom, which is significantly closer to his home country, the applicant stated that he had two reasons for choosing Australia: firstly because he had always wished to visit here; and secondly because he has family here who could provide a social support network for him.  Of themselves, although they are somewhat generic, these reasons suggest a rational and reasonable motive for an international student to choose to study in Australia and they do not cause the Tribunal particular concern. 

8. The applicant stated that he travelled to Australia in 2015, and that his (then) wife and their two children “followed” him here in 2017.  In the meantime, however, the applicant stated that he had met his new partner, and he and his (then) wife divorced their marriage in Australia.

9. The applicant stated that his two Italian-born children from his first marriage (currently aged 15 and 11) are resident in Australia, as is his ex-wife.  His children live with his ex-wife.  The applicant stated that his Italian-born children started school when they arrived in 2015 and are continuing their education here.  When pressed by the Tribunal as to whether it was intended that they will finish their schooling in Australia, the applicant stated that their future here depended in large part upon his visa status;[4] that is, whether he himself stayed in Australia on either a Partner or a Student visa.  When further pressed by the Tribunal, the applicant stated that if he was to be refused a visa or either kind, he would return to Italy with the expectation that his Italian-born children would follow, although the applicant acknowledged that his ex-wife is a key stakeholder in that decision. 

   [4] Accepting, of course, that they have Student visa applications of their own on foot.

10. In respect of his Australian-born children (currently aged 2½ and 1½), the applicant stated that the decision whether they would return to Italy with him if he were to return there would ultimately be dependent on his partner’s (their mother’s) view, however, so far as he himself was concerned, the applicant would wish to have them return with him. 

11. The Tribunal accepts that the applicant is engaging in a degree of speculation as regards these matters.

12. In respect of his academic pathway since commencing study in Australia the applicant stated to the effect that his aspirations changed after initially planning only English studies here, and that he chose to also enhance his qualifications in the “business” stream so as to be more of an asset to a potential employer.  In assessing this evidence, the Tribunal is mindful that it must allow for reasonable changes to career or study pathways.

13. When pressed by the Tribunal as to what type of work he would do in Italy if he were to return there with Australian qualifications, the applicant stated to the effect that he would engage in “sales”.  He stated that his prior work experience in Italy was in various roles, including a factory and in funeral services.  When pressed to be more specific as regards his future employability, the applicant stated that he had maintained contact with his previous employers there and could obtain work “easily”, commensurate with his having obtained additional qualifications in Australia.

14. The applicant stated that he lives with his partner and their two children in Adelaide and that he works as a handyman, effectively running his own business.  The applicant is the primary breadwinner in his household and pays for his own living expenses and tuition fees.

15. There is no evidence before the Tribunal of any civil unrest or military service commitments in the applicant’s home country that would act as a clear incentive for the applicant to remain in Australia. There is also no evidence that the applicant, or a relative of the applicant, has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation.  The applicant’s parents and two siblings are resident in Italy providing some incentive for him to return there.

16. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.  The applicant is in the process of using those lawful means in the form of his Partner visa application.  It is appropriate, therefore, for the Tribunal to make reasonable allowance where the cogency of some of the applicant’s evidence suffers as a result.

17. The Tribunal has had the benefit of speaking to the applicant which has enabled it to obtain more information regarding his circumstances and genuineness in the presentation of his evidence.  The applicant was forthcoming in giving his oral evidence to the Tribunal and he did not appear to be purposefully evasive or vague.  The strong impression the applicant conveyed in the course of his oral evidence was a degree of “fatalism” or “acceptance” as regards his uncertain future.  His evidence was to the effect that his choice is to remain in Australia on a Partner visa, however if that is not granted he would return to his home country at the conclusion of his studies, making whatever arrangements were needed to provide for his children; he acknowledged in his written statement that he:

    …understood that if [his Student] visa ceased to be in effect and [he] did not hold another visa to remain in Australia at that time, [he] would be an unlawful non-citizen under the Act, would be expected to depart from Australia, and would be subject to removal under the Act.

18. There are undoubtedly concerns as regards certain aspects of the applicant’s evidence,[5] in particular his future career pathway is vague and his ties to Australia in the form of his family here are significant.  However, in assessing the applicant’s evidence, it is appropriate to do so recognising that his personal life is (regrettably) in an indeterminate state and his future is uncertain.  The Tribunal is of the view that it is appropriate to extend to the applicant the benefit of the doubt as regards these matters.

    [5] For the avoidance of doubt, those concerns centre upon criteria specific to the Student visa category.

19. Overall, and extending the benefit of the doubt, the Tribunal is not persuaded that the student visa programme is being used by the applicant to circumvent the intentions of the migration programme.  Having considered and appropriately weighted the applicant’s circumstances, immigration history, demeanour and other matters it considers relevant, the Tribunal is satisfied that, so far as his Student visa application is concerned, the applicant intends genuinely to stay in Australia temporarily.  Accordingly, the applicant meets cl.572.223(1)(a).

20. As the Tribunal has found the applicant meets the requirement of cl.572.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

21. 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 572 Vocational Education and Training Sector visa:

    ·cl.572.223(1)(a) of Schedule 2 to the Regulations.

    Damian Creedon
    Member