Kurt (Migration)

[2022] AATA 303

Kurt (Migration) [2022] AATA 303 (7 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Gulseren Kurt

CASE NUMBER:  2001695

HOME AFFAIRS REFERENCE(S):          BCC2019/6234241

MEMBER:Noelle Hossen

DATE:7 February 2022

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 of Schedule 2 to the Regulations.

Statement made on 07 February 2022 at 2:38pm      

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentives to remain or return – all family members in home country – frequent returns – finances in home country and Australia – future business plans – circumstances of cancellations of various English courses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A
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 23 January 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 25 November 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 (Cth) (the Regulations).

4. On the 12 August 2021 the Tribunal invited the applicant to provide further information prior to the hearing pursuant to Section 359(2).

5. The respondent responded on the 28 September 2021. The applicant sought an extension of time to provide the documents, and this was granted by the Tribunal. The applicant provided the following documents being MR17 and Confirmation of Enrolment.

6. The applicant appeared before the Tribunal on the 2 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

7. On the 3 December 2021 the Tribunal provided a copy of the PRISMS records to the applicant in strict accordance with the provisions of Section 359A and provided 14 days for the applicant to respond.

8. The applicant responded and provided submissions to explain the matters raised in the PRISMS records on the 16 December 2021.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

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

11. 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?

12. 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.

13. 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.

14. In the decision of the delegate, he found that he was not satisfied that the family ties in her home country of Turkey was sufficient to represent a significant incentive for her to return to her home country.

15. He stated as follows in his Decision:” I have considered the applicant’s circumstances in her home country. The applicant a 59-year-old female national from Tukey, declared she is married with no dependent children. The applicant also declared that she is a retired accountant. The applicant’s husband has been included in this application as an unaccompanied family member. I note that if the applicant were granted the student Visa, her spouse would be eligible to join her in Australia in the future. The applicant also declared her father and five (5) siblings are residing in Turkey. While I accept that the applicant may have family ties to her home country, given the intended period of future stay I am not satisfied that these ties represent a significant incentive for the applicant to return upon completion of the nominated course of study when weighed against the fact that the applicant has provided no evidence of financial ties or employment ties to her home country.”

16. At the time of the hearing the applicant declared that she had not seen her husband nor her sons since September 2019. Her entire family resides in Turkey.

17. At the hearing the evidence was that her 2 sons had lived in Australia and had been educated in Australia. Both sons are now in committed relationships in Turkey. The oldest child is 32 years of age and is married. He has a young child. He was granted a graduate visa to remain in Australia for 18 months after he finished his studies, but he did not take it up as he returned to live in his home country. His brother did the same. Both children are now happily living in Turkey with their partners. The youngest child is 25 years of age and he still resides with his father. They have no intention of residing in Australia.

18. The applicant told the Tribunal that she had sold a block of land prior to arriving in Australia on a guardian visa for her sons to study in Australia. She said that it cost the family $750,000 to study in Australia. She gave evidence that she owns 4 apartments in Turkey.

19. When the family left Australia, they were still holding a lease over a rental property that they lived in, in Australia. The applicant had to return to visit on a Visitor’s Visa to clean the house and to sell the possessions that they accumulated in Australia. After selling the items and including the cash that she had brought she now has $50,000, which is held in a safety box.

20. The applicant has no family ties living in Australia and all her close family members reside in Turkey. All her assets are in Turkey, save for funds, that she has brought to Australia is stored in what she describes as a safety box.

21. The applicant had remained in Australia during the time that her children were educated, and the Tribunal has considered the fact that she would have made some social ties and connections. She said that she was part of a folk music group in Australia. However, her social and family connections are mainly all living in Turkey.

22. The Tribunal has considered the family and economic ties of the applicant and finds that she does not have any substantial assets in Australia. She does not have any close family ties in Australia. The Tribunal finds that all her family ties are in Turkey and that this will serve as a significant incentive for her to return to Turkey at the end of her studies. The Tribunal places significant weight on those factors in favour of the applicant’s case.

23. She told the Tribunal in her oral evidence that she wanted to study English so that she could qualify to open a business in languages with her husband in Turkey.

24. She said that her husband is fluent in Arabic as he went to Libya to learn to speak the language and that he now works as an interpreter in Turkey for Arabic/ Turkish languages. She said that she was hopeful to become an English/ Turkish interpreter when she returns to her home country.

25. She said that the family will own a café and a restaurant in a seasonal tourist district and that it will be beneficial to learn the language.

26. The Tribunal accepts her explanation that she will benefit from the fact that she is able to speak English in the future in her home country. The Tribunal places some weight in favour of the applicant’s case on the facts contained in the preceding 3 paragraphs.

27. The applicant’s PRISMS records show that she cancelled various English Courses during the period that she has been waiting for her review to be dealt with.

28. The applicant explained the situation in her response to the Section 359A correspondence as follows:

    1/04/2019 to 28/06/2019 I attempted to apply for a Student Visa directly from my Guardian Visa and was refused since you cannot go onto a Student Visa from a Guardian Visa. I had applied for Navitas as a requirement of the Student Visa Application, however, was refunded my money because my student Visa was denied due to a technicality surrounding visa requirements.

    5/08/2019 to 29/11/2019 These dates correspond with the application for admission made in the abovementioned dates 1/4/2019 to 28/06/2019. This was the second term I would have been studying if my student visa application had proceeded. It has appeared in the student variations even though the course was cancelled.

    16/12/2019 to 8/05/2020. I had returned from Turkey on a Tourist Visa to pack up the rental I had been staying in prior to leaving for Turkey in this period. I was told I could apply for a student visa directly from a Tourist Visa, which is what I did. I signed up to Navitas on a plan which was broken up into three periods throughout the duration of approximately ten weeks. I completed 4 months of the Course before the impacts surrounding Covid pandemic had struck, and the Course had gone online. She said that she is not tech savvy so could not continue. She said that she had completed 4 months and that she had paid for that.

    6/01/2020 to 8/05/2020. This course has appeared in the student Variation even though the course was cancelled.

    11/05/2020 to 25/09/2020 This was the second term that I would have been studying.

    28/09/2020 to 30/10/2020 This was the third term. I would have been studying if the Course did not go online due to the Covid pandemic. She states that there were only 2 variations because the school break their terms into 3 periods.

29. The Tribunal accepts her explanations as set out above. The applicant wishes to remain in Australia for 40 weeks to finish her course. Whilst the applicant lived in Australia on a Guardian Visa, she returned on a frequent basis to her home country to see her husband and family for up to 2 to 3 months at times. She said that she could not study whilst her children were young and studying in Australia.

30. The applicant has previously travelled to Syria. She gave evidence that she has complied with the migration laws of other countries and that she has never been refused a visa previously. The Tribunal weighs those facts in favour of the applicant’s case.

31. The applicant does not have to undertake military service and there is no political and civil unrest in her home country.

32. 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).

33. 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.

34. 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

35. 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 of the Regulations

    Noelle Hossen
    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;

    d.whether 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.