JAVIER (Migration) - [2017] AATA 1939

JAVIER (Migration) [2017] AATA 1939 (11 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms JASMIN JAVIER
CASE NUMBER:  1606386
DIBP REFERENCE(S):  BCC2016/193724
MEMBER:Jan Redfern
DATE:11 October 2017
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 October 2017 at 3.25 pm

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).
The applicant applied to the Department of Immigration and Border Protection for the visa on 13 January 2016. The delegate decided to refuse to grant the visa on 15 April 2016 on the grounds that the delegate was not satisfied that the applicant met the relevant requirements for the visa set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). In particular, the delegate was not satisfied that the applicant intended to stay in Australia temporarily.
The applicant appeared before the Tribunal on 23 March and 18 July 2017 to give evidence and present arguments. She also provided written submissions and evidence prior to the hearing and a further written submission after the hearings explaining her reasons for undertaking her studies, including the current course in which she is enrolled. The applicant has been in Australia since 2009 and has undertaken and completed eight courses during this period. She is currently enrolled in an Advanced Diploma course which was commenced in March 2017 and is due to be completed in March 2018.
The applicant was assisted in relation to the review by Ms Melinda Bernardo, who is an education consultant but not a registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW AND QUESTIONS FOR DETERMINATION
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).
Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.
The issue in the present case is whether the applicant meets the criterion in cl.572.223. The time for assessing whether a visa applicant meets the criterion is the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 1939
Decision Date: 11 October 2017

CaseChat Overview and Summary

The applicant, who had previously been granted several student visas, sought judicial review of a delegate of the Minister's decision to refuse her application for a further Student (Temporary) (Class TU) visa. The delegate had concluded that the applicant was not a genuine applicant for entry and stay as a student, citing concerns about her educational progression, the value of her proposed course for her future employment, and her ties to her home country, suggesting she was using the student visa program to maintain ongoing residence in Australia.

The primary legal issue before the court was whether the delegate's decision that the applicant was not a genuine temporary entrant was reasonably open on the evidence. This required the court to consider the applicant's educational history, her stated intentions for undertaking further study, her ties to her home country, and the overall circumstances of her application in light of the relevant Direction No. 53.

The court considered the applicant's extensive enrolment and completion of various courses in Australia, including certificates, diplomas, and advanced diplomas, as well as her enrolment in further courses. It also noted her stated intention to establish a childcare business in her home country and her provision of a one-way ticket to the Philippines. However, the court also had regard to the delegate's concerns regarding the applicant's progression beyond advanced diploma level, the relevance of her chosen courses to her stated future employment, and the adequacy of her ties to her home country as incentives to return. The court found that the delegate's concerns were not unfounded, particularly in relation to the applicant's educational trajectory and the perceived value of her proposed study for her future prospects in the Philippines.

Ultimately, the Tribunal affirmed the delegate's decision to refuse the grant of the Student (Temporary) (Class TU) visa, finding that the applicant had not satisfied the criteria for the grant of the visa.

Orders

Orders of the court

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Background

Background to the litigation

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.BACKGROUND FACTS AND EVIDENCE The applicant arrived in Australia on 17 June 2009, having been granted a student visa (subclass 572) valid for the period 15 June 2009 to 5 September 2011. She was granted further student visas on 31 August 2011, valid until 19 November 2013, and on 19 November 2013, valid to 13 January 2016. The applicant made an application for a further student visa on 13 January 2016. Further information was requested, which was provided by the applicant the day following the request. A delegate of the Minister refused to grant the visa by decision made on 15 April 2016. In summary, it was concluded that the applicant did not satisfy the relevant criteria for the grant of the visa because the delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student. Relevantly, the delegate found that the applicant had not completed any courses above the advanced diploma level and that she had maintained enrolment in short inexpensive courses, was not satisfied that the applicant had made significant progression in her education and was not satisfied about the value of the proposed course for the applicant's future. The delegate was also concerned about whether the applicant had sufficient ties to her home country and was of the view that the applicant was using the Student Visa program as a means of maintaining ongoing residence in Australia. As noted in the decision record of the delegate, the applicant has enrolled in and successfully completed the following courses during the period that she has resided in Australia:· Certificate III in Business - commenced 16 June 2009, completed 15 December 2009· Certificate III in Business - commenced 11 February 2010, completed 31 July 2010· Certificate IV in Human Resources - commenced 21 June 2010, completed 4 December 2010· Diploma of Human Resources Management - commenced 3 January 2011, completed 18 June 2011· Advanced Diploma of Marketing - commenced 22 August 2011, completed 19 August 2012· Advanced Diploma of Management - commenced 15 October 2012, completed 13 October 2013· Certificate III in Childhood Education and Care - commenced 1 July 2014, completed 7 November 2014· Diploma of Early Childhood Education and Care - commenced 1 December 2014, completed 4 December 2015· Diploma of Community Services - commenced 1 February 2016, completed 3 February 2017 The applicant is currently enrolled in an Advanced Diploma of Community Sector Management. This course commenced on 6 March 2017 and is due to be completed by 2 March 2018. The evidence is that the applicant enrolled in but did not proceed or complete the following courses:· Certificate IV in Business - course commenced 8 January 2010· Diploma of Management - course commenced 8 October 2010· Certificate III in Children Services - course commenced 4 November 2013· Diploma of Early Childhood Education and Care - course commenced 2 November 2014· Diploma of Children's Services (Early Childhood and Care) - course commenced 10 November 2014· Certificate IV in Disability - course commenced 1 February 2016· Diploma of Disability - course commenced 6 March 2017

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As I have found that the applicant does not meet a criterion for the grant of a student visa, I must affirm the decision under review.DECISION The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.Jan RedfernDeputy President

Ratio Decidendi

Legal Principle Established

After the hearing, the applicant provided an extract of an internet search headed ‘Starting a Preschool or Day Care Center’. This document outlined the requirements for operating a centre, which includes hiring a school administrator or director with a master’s degree, preferably in education. It is noted that this article was published in the Manila Bulletin and the publisher was offering a training program called ‘How to Start and Manage a Preschool or Day Care Center’. The applicant included a letter requesting that she be allowed to continue the course and provided a copy of a one-way ticket to Manila for 31 March 2018. She also provided a document headed Confirmation of Studies dated 17 July 2017 noting that the applicant had completed five units in the Advanced Diploma of Community Sector Management course, being:·Lead and manage organisational change·Manage risk·Develop and implement service programs·Research and apply evidence to practice·Manage innovation and continuous improvementCONSIDERATION Under Direction No.53, I must have regard to the applicant’s circumstances in her home country and her potential circumstances in Australia. In considering the applicant’s circumstances in her home country, I must have regard to whether the applicant has sound reasons for not undertaking the study in the Philippines, the applicant’s personal ties to the Philippines and whether this would serve as a significant incentive to return and whether there are significant incentives for the applicant not to return home, such as economic circumstances, military service commitments or political and civil unrest. In considering the applicant’s circumstances in Australia, I must have regard to the following factors, which are relevant to her case:(1)whether the applicant has ties with Australia that would present a strong incentive for her to remain;(2)evidence that the visa program is being used to circumvent the intentions of the program; (3)whether the program is being used to maintain ongoing residence; and(4)the applicant’s knowledge of living in Australia and her intended course of study. Under Direction No.53, I must also have regard to the value of the proposed course to the applicant’s future. In particular, I must have regard to whether the course the applicant is undertaking is consistent with her current level of education and whether this course will assist her to obtain employment in the Philippines, the relevance of the course to the applicant’s past and future employment in the Philippines or another country and the remuneration the applicant could expect to receive in the Philippines compared with Australia using the qualifications gained. Direction No.53 provides that I must have regard to the applicant’s immigration history, including previous visa applications for Australia or other countries, previous travel to Australia or other countries, including, relevant to the facts in this case, the amount of time the applicant has spent in Australia and whether the visa may be used for maintaining ongoing residence.