Lado (Migration)

[2020] AATA 4576

Lado (Migration) [2020] AATA 4576 (4 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Istvan Lado
Mrs Orsolya Varga
Miss Lili Lado

CASE NUMBER:  1907949

HOME AFFAIRS REFERENCE(S):          BCC2019/493673

MEMBER:Adrienne Millbank

DATE:4 November 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 04 November 2020 at 11:44am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant and intention to comply with visa conditions – incentives to remain or return – family, work and financial links to home country – study and work history in Australia – decision under review remitted

MIGRATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212(a), 500.311

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 27 March 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The primary visa applicant (the applicant) is a 39-year-old Romanian-born citizen of Hungary. The second and third-named applicants are his wife and daughter. The applicants first arrived in Australia on visitor visas, in December 2018, and applied for the visas on 15 February 2019.

3. 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.

4. The delegate in this case refused to grant the visa to the applicant on the basis that he did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the applicant was a genuine temporary entrant.

5. The delegate noted that the applicant’s family was accompanying him. The delegate acknowledged that the applicant had provided evidence of his education, qualifications, employment and ownership of property and a vehicle, in his home country. The delegate acknowledged also that the applicant had provided a study plan, and had previously travelled outside his home country. Evidence was not provided, however that the applicant had researched study options in Hungary or other European countries, and the delegate was not satisfied he had demonstrated the value of the proposed courses to his future in his home country.

6. The delegate refused to grant the visas to the second and third-named applicants on the basis that they did not satisfy cl.500.311. Having found the applicant did not meet cl.500.212, the delegate found they were not members of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa.

7. The applicants were assisted in relation to the review by their registered migration agent.

8. The applicants were invited to appear before the Tribunal, by telephone, on 30 October 2020 to give evidence and present arguments. The applicants accepted the invitation. On 26 October the Tribunal received a request from the representative to postpone the hearing, because of a death in the representative’s family. The Tribunal agreed to that request. On 29 October 2020 the Tribunal received further documents in support of the review, including an updated Genuine Temporary Entrant (GTE) statement from the applicant.

9. The Tribunal decided, in these circumstances and this case, that a hearing was not 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. 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?

13. 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.

14. 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.

15. At the time of application, the applicant was enrolled in a General Intensive English course from 11 February 2019 to 28 June 2019. He successfully completed that course, and subsequently successfully completed a Certificate III in Painting and Decorating, from 17 August 2019 to 13 September 2020. At the time of decision, he is studying a Diploma of Building and Construction (Management), from 14 September 2020 to 12 September 2021.

16. In a joint GTE statement provided to the Tribunal, signed on 28 October 2020, the applicant and the second-named applicant stated:

    ·They liked Australia when they visited in December 2018. The applicant wanted to improve his English. He also wanted to improve his trades qualifications, although he did not state that intention at the time of application. The parties chose to visit and study in Australia, rather than a closer European country, because they were attracted by Australia’s climate and lifestyle, and because it offers world-recognised trades teaching.

    ·The applicant completed courses in 2017 and 2018, before coming to Australia, as a Decorator, Joiner, Plasterer, and Wallpaperer and Painter.

    ·The second-named applicant has a childhood friend from Romania who lives in Australia, and the parties have made friends within the Hungarian community in Australia, but their families are in Hungary and Romania in Europe ‘which is where our home will always be’. The second-named applicant communicates daily with her mother and sister, and the applicant communicates weekly with his parents and sister.

    ·The parties have a middle-class, comfortable life in Hungary. They have invested in a small business; bought and sold an apartment; and prior to travelling to Australia, jointly invested in a property, together with the second-named applicant’s mother and brother. They intend to purchase another property in Hungary, to live in, when they return from Australia.

    ·The applicant has been working in Queensland since October 2019, as a subcontractor for a house painting business. He believes the skills he is acquiring, the qualifications he has obtained and is obtaining, his work experience, and his English language ability will set him up for a profitable business of his own in Hungary. He anticipates earning about AUD2400 a month, which is three times more than he earned before the parties left Hungary;

    ·There are no compulsory military obligations in Hungary, and the applicant completed his obligatory military service in Romania when he was 20 years of age;

    ·The parties applied for visitor visas previously, but these were refused. Aside from these refusals, they have not had visa applications refused. Since arriving in Australia, they have complied with all of their visa conditions.

17. Evidence was provided that the applicant completed courses in Decorating and Joinery in 2017 and 2018 before coming to Australia, and that the parties have sold and purchased property, in Hungary. Regarding the applicant’s history and motivation as a student in Australia, and the relevance of his chosen courses to his and his family’s future in Hungary, the following evidence was provided:

    ·A certificate of attendance, certifying the applicant had an attendance rate of 94.22 per cent during his General Intensive English course from 11 February 2019 to 28 June 2019;

    ·a letter of commendation dated 25 June 2019, from the coordinator of English Language School in Sydney (ELSIS), commending the applicant for his willingness to learn, attendance, class participation and ‘overall exceptional performance’. The applicant was further commended in the letter as a ‘well-liked’ contributor to the school community;

    ·an ‘English for Life’ certificate, certifying the applicant was the ELSIS class nominee for Student of the Term in April 2019;

    ·a certificate issued by the Australia National Institute of Business on 21 September 2020, certifying the applicant has fulfilled all the requirements for a Certificate III in Painting and Decorating;

    ·a Statement of Results, dated 21 June 2020, showing the applicant obtained the highest result awarded, Competent, for every unit of his Certificate III in Painting and Decorating course; and

    ·a written statement dated 21 October 2020 from the applicant’s current employer, a painting business in Queensland, certifying the applicant has worked as a painter subcontractor for the business since 4 November 2019.

18. Printouts of messages were provided showing the applicants’ ongoing communications with family members and friends in Europe. The Tribunal accepts from the evidence provided that the applicant has reasonable reasons for studying in Australia rather than in his home country; that the applicant has been a motivated, focussed and successful student; that he has chosen and is progressing in studies that are relevant to his past and proposed future self-employment in Hungary; that he and his family have personal ties in Europe that are an incentive for them to return; that his Australian qualifications and work experience will increase his remuneration prospects in his home country; and that the parties’ prospective economic circumstances in their home country are not a disincentive for the applicant to return.

19. As noted, the applicant advised that he has no military commitments that would present as a significant incentive for him not to return to his home country. There is no information before the Tribunal to suggest that the applicants might be induced to apply for student visas to remain in Australia because of political and civil unrest in the parties’ home country.

20. On the basis of all of the above, having considered the evidence and circumstances of the applicant against the factors specified in Direction No.69, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

    Does the applicant intend to comply with visa conditions?

21. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

22. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

23. As noted, the applicant’s study experience in Australia, as set out in his Provider Registration and International Student Management System records, show him to be a motivated student, who has successfully completed courses while on a bridging visa.

24. There is no information before the Tribunal to indicate that the applicant has applied for other visas where the applications have yet to be finally determined. The applicant advised that he and the second-named applicant travelled to other European countries. There is no information before the Tribunal to indicate that the applicant has not complied with the conditions of previously held visas, that he has had a visa cancelled or considered for cancellation, or to suggest that he will not comply with his stated intention to comply with the conditions that would be attached to the visa.

25. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

26. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

27. No other relevant matter was raised by the applicant, or was otherwise before the Tribunal.

28. 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.

29. 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

30. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Adrienne Millbank
    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;

    dwhether 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.