MONTEJO (Migration)

[2018] AATA 2558

MONTEJO (Migration) [2018] AATA 2558 (6 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jogette Mae De Lara MONTEJO

CASE NUMBER:  1621301

DIBP REFERENCE(S):  BCC2016/3779270

MEMBER:David Barker

DATE:6 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 06 June 2018 at 7:59am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine Temporary Entrant – Relationship with de-facto partner – Financial support from partner – Economic incentive – Course changes – Relevance of studies – Career plan – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 502.212

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 on 24 November 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 11 November 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.50212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the evidence demonstrated the applicant genuinely intended to remain in Australia temporarily.

4. The applicant appeared before the Tribunal on 2 March 2018 to give evidence and present arguments.

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

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

7. The applicant is a national of the Philippine and is 26 years old.

8. The Department delegate’s decision record, a copy of which was provided with the review application, states the applicant has travelled in and out of Australia on visitor visas since October 2014 and most recently arrived in Australia in August 2016 on a tourist visa, at which time she stated the purpose of her visit was to spend time with friends and family and that she would not be in Australia for more than a three month period.

9. The delegate noted that in her application for the subclass 500 student visa, the applicant indicated she intended to study a Diploma of Human Resources Management and an Advanced Diploma of Management. These courses are offered by an education provider in Sydney, New South Wales.  In documents provided with the student visa application, the applicant stated her de facto partner holds a subclass 457 visa and works in Onslow, Western Australia. The applicant also stated she has a child, who is five years of age and who is living in the Philippines.

10. With her visa application the applicant provided a written statement, dated 11 November 2016, addressing the genuine temporary entrant (GTE) criterion, which stated:

    I, [the applicant] was born on the [date of birth supplied] and is currently 24 years of age. I am in a de facto relationship with [name supplied] who is a Senior Insulation Superintendent currently working for Bechtel Corporation in Onslow, Western Australia.

    I only did a first year of Hotel and Restaurant Management course following High School. I did not complete the course as I fell pregnant and had a child but I endeavoured to find employment. I have worked a Secretary in 2012-2013 in the Province of Leyte and then from February to June 2014 as a Teacher for Rarejob Online and after that was working as an insurance sales person in Batangas City and that's where I met my partner [name supplied].

    When my partner got assigned for work in Gladstone Queensland, I applied for a Tourist Visa to visit him in Gladstone and on occasion travelled back to the Philippines. My partner then got assigned to work in Onslow, Western Australia. My partner works on a FIFO roster so on his rostered days off, he would see me.

    I am really looking to go back to the workforce and my passion lies mainly in human resources management. My first introduction to human resource management came as a result when I met the Director of Academic Studies, Rima in ACBI to discuss further about the course and I was able to get detailed understanding of the roles played by human resources in tackling human issues and consequently in organisational success. In light of this, I have decided to enrol in Diploma of Human Resources Management and Advanced Diploma of Management (Human Resources) because I am interested in the role it plays in achieving organisation goals and objectives, key among them being hiring and training the best employees and dealing with performance issues.

    I chose Australian College of Business Intelligence (ACBI) because of its reputation, good academic links and in addition it is the only institution that offers SAP learning hub integrated into my course. I firmly believe that the right education in the right institute will open doors of advancement in chosen field of study.

    My career goal is to work in leading firm that places priority on professionalism and lead such organisation towards attainment of set goals by making use of knowledge garnered as well as experience. A few years from now I can see myself as a human resource consultant providing professional advice and my SAP skill in workplace anywhere in the world.

    My partner is in full financial support of my decision. We know that we are not going to be here permanently as my partner is from England and he is only here on a temporary work visa until he gets reassigned by Bechtel Corporation in another project in the Philippines or in another country. I believe that I am equipping myself for the future in order to gain the skills and advantage and the upper hand than most qualified HR Consultant / Manager. I also have a dependent child staying at my home-country therefore I would like to go back to the Philippines at the conclusion of my studies.

    I declare that the particulars above are true and correct in every detail. I understand that incorrect or misleading statements may result in refusal of my admission and/or student visa application.

    The hearing

11. The Tribunal raised with the applicant that the matter before it is whether she meets the requirements of cl.500.212(a).  It outlined the section, the relevance of Direction 69 and that the Tribunal needs to be satisfied on the evidence before it that she is a genuine applicant for entry and stay as student.

12. The applicant told the Tribunal she was currently studying a leadership and management course.  The applicant had difficulty explaining the content of her current studies in any specific detail. In response to a question as to why she had undertaken this course, she said she is planning to build up a restaurant business in the Philippines. She indicated she loves cooking and that one of her dreams is to have a business someday.  She said she intends to study a cookery course after she has completed her current leadership and management course in 2019. In response to a question as to whether she has taken any steps to look into opening a restaurant in the Philippines, the applicant said she had not as yet made any specific plans. She indicated she would start the business after studying cookery, but did not provide a specific time frame for when she would complete her proposed studies in Australia and therefore when she intended to return to the Philippines.

13. The applicant said she arrived in Australia in 2014 on a Tourist visa.  She said she held further Tourist visas and then applied for the subclass 500 Student visa.  She indicated she was initially interested in studying cookery at TAFE, but that a friend advised her that a human resource course would be a less expensive study option. She said the human resource course was also related to her previous studies in in the Philippines.  She said she completed high school in the Philippines and one year of a hotel and restaurant management course.  She said also she worked in secretarial roles for around a year.  She said her approximate earnings were around 20,000 pisos (AUD$500) a month.

14. The applicant said she had not looked into studying leadership and management in her home country, as Australian qualifications are international.  She indicated she is not working in Australia.  She said her partner was until a month ago financially supporting her, but that their relationship had ended a few weeks prior to the hearing.  She said he went to England to visit his family and that she has not been able to contact him in recent weeks.

15. She said her aunt in the Philippines will henceforth provide her with financial support.  She said her Aunt has recently remitted her around $980 through Western Union.  The applicant said she is currently staying with friends in Centennial Park.  She said the person offering her accommodation is a friend from her Church.

16. The applicant said her mother’s cousin resides in Hornsby, NSW.  She said her main relative in the Philippines is her mother’s sister.  The applicant indicated her mother and eldest child died in a natural disaster (typhoon) in her home country in 2013. She said she most recently visited the Philippines two years ago at the time of her father’s death in 2015.  She said she has been unable to travel to the Philippines more recently because of conditions attached to her Bridging visa.  She said her daughter resides with her father’s sister in the Philippines.

17. As to her ties to her home country, the applicant said the studies she is currently undertaking are for her daughter, as well as for herself.  She said she has many regrets in life and that she used to be a responsible parent.  She said her parent’s relatives in the Philippines are supporting her and her daughter so that she can complete her education and work towards a better future for herself and her daughter in her home country.

18. The Tribunal noted the applicant had not been declared as a dependent on her ex-partner’s visa and invited her to comment on the concern her relationship circumstances gave rise to a concern they have provided her with an incentive to maintain her residency in Australia.  The applicant said her partner has not been returning her calls and that they have been having relationship difficulties.  She explained she and her partner used to meet up periodically, as he works in Western Australia and she has lived on the East Coast of Australia for some time.

19. The Tribunal invited the applicant to comment on its concerns: that her description of her future plans was vague and not very specific, that she has not returned to her home country for some time and has an intention to stay in Australia for an indeterminate time undertaking further study, that whilst she has significant familial ties to the Philippines, she also has family relatives and a strong social support system in Australia. The applicant had difficulty responding to these concerns and the Tribunal briefly adjourned the hearing to provide her with an opportunity to consult with her representative.

20. Following the adjournment, the applicant said she would like the chance to finish her leadership and management course, so that she could get a qualification for her cookery course.  But if she was not given that chance, she would be nothing and just wasting her time.  She said the current course is providing her with a big opportunity and that she could possibly apply for a cookery course in the Philippines if she was able to complete her current leadership and management course.

    The representative’s oral submissions

21. The representative submitted the GTE requirement in the Act is an absurdity and that it either requires an applicant to make things up or else meet requirements that are very difficult to meet.  He contended that changing courses and vocational direction is not unusual for students and that he does not think the applicant really knows what she wants to do at the present time.  He submitted the applicant appears to have been encouraged by her friends to study and gain some qualifications, as Australian qualifications, especially in commercial cookery, are highly regarded overseas.  He contended it is less clear if her current leadership and management course will enhance her future prospects.  He contended it is difficult for an applicant to develop a plan for their future and that the genuine temporary entrant requirements provide too much discretion to the Departmental decision maker. The representative submitted it appears the applicant’s relationship with her de facto partner has broken down, but this is not clear, as there has been no communication between them since February 2018.  Given this circumstance there is not a clear indication the applicant’s relationship with her de facto partner has irrevocably broken down.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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 is a genuine applicant for entry and stay in Australia as a student.

23. 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?

24. 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.

25. 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 Tribunal does not accept the representative’s contention that the genuine temporary entrant criteria in the Act are absurd or that they establish unobtainable criteria which an applicant for a student visa cannot honestly meet. In the Tribunal’s experience successful applicants for this sort of student visa can clearly explain factors such as their relevance of their studies to their past work experience and manner in which they intend to apply skills and knowledge gained through study in Australia towards future employment or business opportunities in their home country. The Tribunal is also well aware it has no role in critiquing the Commonwealth’s legislation and rather has the role of making findings through reference to probative evidence and then to apply the relevant legislative criteria to these finding in a legally correct and preferable manner.  In light of this, the Tribunal has considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

26. It is not apparent whether the applicant’s relationship with her de facto partner has irretrievably broken down.  Documents the applicant has provided the Department, including the most recent information from the applicant’s partner to the Department, namely a letter dated 4 April 2016, indicate he has an intention to remain in Australia indefinitely in his current employment with Bechtel Corporation. This in itself is not consistent with information contained in the genuine temporary entrant statement the applicant provided the Department, where she emphasised the temporary nature of partner’s employment contract in Australia. Whilst the applicant gave evidence during the hearing she has not heard from her partner recently, it would appear she made no decision to leave their relationship or to actively plan a future without her partner. Given her partner’s stated intention to remain in Australia indefinitely, this raises concern as to the applicant’s own incentive to maintain her residency in Australia.  It would appear the current uncertainty as to her relationship status may not provide a true reflection of her underlying connection to Australia, through her connection to her partner.  It is also of concern to the Tribunal that information provided by the applicant to the Department with her most recent tourist visa application in August 2016 indicated she only intended to remain in Australia for three months, when it is quite apparent that she was at that time in a de facto relationship with a person intending to remain in Australia indefinitely.

27. The Tribunal accepts the applicant has familial ties in her home country which are quite significant, in the form of her daughter and two aunts who have played an important role in her life since the loss of her parent’s and eldest child.  Notwithstanding the applicant’s ties to relatives and friends in Australia and the uncertain status of her relationship with her partner, the Tribunal acknowledges her ties to family members in the Philippines provide her with an incentive to return to her home country at some stage in the future.

28. The Tribunal accepts the applicant has no military service commitments in the Philippines, which may provide her with an incentive to avoid returning there.  The Tribunal also accepts the applicant has no concerns as to civil unrest or the political situation in her home country which would provide her with an incentive to not return there.

29. The Tribunal is concerned the applicant, notwithstanding her claim to not be working in paid employment in Australia at the present time, has an economic incentive to remain in Australia.  This is because her comparative economic circumstances in Australia appears to have at least until very recently, been significantly better than it appears to have been when she last resided in the Philippines, where she was earning the equivalent of $500 per month.  The Tribunal formed a strong impression the applicant is uncertain about her circumstances at the present time, as she has until as recently as four weeks before the hearing, been able to rely on financial support from her partner to meet her regular expenses.  The Tribunal acknowledges the applicant has received some financial support from her aunt in the Philippines and that in relative terms the support received was quite considerable, being only slightly less than what the applicant would have previously earned in her home country over a two month period.  Notwithstanding her current uncertain situation, the Tribunal is not convinced the relative economic circumstances of the applicant in Australia and the Philippines do not provide her with an economic incentive to maintain her residency in Australia.

1. The written statement the applicant provided to the Department regarding the genuine temporary entrant criteria made no reference to her having any interest in studying commercial cookery.  This is not consistent with her evidence during the hearing, where she indicated she has had an underlying interest in studying cookery, as she wants to eventually open a restaurant in her home country.  This inconsistency gives rise to a concern as to the reliability of the applicant’s evidence as to her motivations for enrolling in the courses she has to date undertaken and those she proposes to undertake in Australia.  A further concern is her evidence she chose the human resource course she initially undertook in 2016 due to it been an inexpensive study option.  It is not readily apparent what benefit the study in human resources management and leadership and management will be to the applicant’s stated future business goals.

2. The applicant was not able to provide much specific information as to the content of the course she is currently enrolled in.  Whilst understanding apprehension and anxiety can affect an applicant in the formal nature of a Tribunal hearing, her lack of detail with regard to topics she is currently studying gives rise to whether she is a genuine student.  The Tribunal is also not satisfied the applicant gave a plausible explanation for not looking into her study option in her home country, given the apparent strength of her family ties there.  This was particularly the case given her stated intention to undertake further courses in Australia in cookery, following the completion for her current course in 2019. In conjunction with her lack of detail as to how the applicant would apply skills she may be acquiring, though her studies in Australia, when she returns to her home country, the Tribunal has concern as to whether she has a genuine intention to progress academically in Australia, rather than to maintain her residency in Australia for other reasons.

3. The Tribunal accepts the applicant may have been encouraged to undertake study by friends in Australia, especially given her current uncertain relationship circumstances.   However, for the cumulative reasons discussed in this decision, the Tribunal concerns the applicant is essentially motivated by a desire to maintain her residency in Australia, rather than to progress academically so as to improve her future employment options in her home country.

4. Based on what is evidenced of the applicant’s circumstances overall, including her immigration and study history, her circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that she intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

5. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

6. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

   DECISION

7. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

   David Barker
   Member