Nakandaul (Migration)

[2021] AATA 2681

Nakandaul (Migration) [2021] AATA 2681 (12 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Angeline Nakandaul

CASE NUMBER:  1911262

HOME AFFAIRS REFERENCE(S):          BCC2019/679256

MEMBER:Jens Streit

DATE:12 June 2021

PLACE OF DECISION:  Brisbane

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(a) of Schedule 2 to the Regulations.

Statement made on 12 June 2021 at 4:50pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –  genuine applicant for entry and stay as a student– course will benefit the applicant’s plans for future – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 2, cl 500.212

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 Home Affairs on 18 April 2019 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 28 February 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 (the Regulations) because the delegate was not satisfied that the applicant genuinely intended a temporary stay in Australia as a student.

4. The applicant appeared before the Tribunal on 17 February 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 temporary entrant.

7. 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?

8. 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.

9. 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.

10. At the time of lodging the application for review, the applicant provided the Tribunal with a copy of the delegate’s decision and record of reasons refusing to grant the visa.

11. In terms of the evidence, the Tribunal has had regard to the applicant’s oral testimony, the oral testimony of Mr Sydney Ryan a witness called by the applicant, the Departmental file, the Tribunal file and the documentation provided by the applicant to the Tribunal, including documents provided after the hearing.

12. The applicant is a 31-year-old (born: 27 July 1989) Papua New Guinean national. In the period 2013 to 2018, the applicant has visited Australia on several occasions before returning to her home country.

13. The applicant then arrived in Australia on 18 January 2019 on a Tourist (FA-600), which had been granted on 09 February 2018 and was to expire on 09 February 2021. Shortly after arriving in Australia the applicant applied for a Student (Temporary) (Class TU) visa to study a Certificate III in Individual Support and a Certificate IV in Aging Support.

14. At the time of the hearing, the applicant had completed or was studying the following courses:

    ·Certificate III in Individual Support (completed); and

    ·Certificate IV in Aging Support (studying).

15. During the hearing the Tribunal expressed concern that the applicant had lodged her application to study in Australia shortly after having arrived in Australia on a Tourist visa. In response the applicant gave evidence to the effect she had completed her application for a student visa in Papua New Guinea and had submitted it to her Papua New Guinean migration agent for lodgement, however the applicant later learned that her agent did not submit her student visa application.

16. The applicant gave evidence that at the time she was studying an aged and community care course online with Upskill.  The applicant later learned that Upskill was not on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). The applicant engaged an Australian agent, Mr Paul Markum of Sea Education – International Students based on the Gold Coast Australia, and applied to Image Education Australia Pty Ltd to study in aged care on the basis that Education Australia Pty Ltd and its aged care courses were on CRICOS.

17. When asked why she came to Australia on a Tourist visa on 18 January 2019, the applicant responded that Mr Markum had advised that her student visa application had been lodged and was pending approval. The applicant stated her education provider had approved for her to start study in a Certificate III in Individual Support, which was to commence later in January 2019.

18. Post the hearing, the applicant filed additional documents, including email communications between the applicant and Mr Markum over the period 24 December 2018 to 13 March 2019.

19. The Tribunal notes the email of 24 December 2018 at 5:51pm to the effect that the applicant was advised by Mr Markum that she had received a letter of offer to study a Certificate IV in Ageing Support commencing 21 January 2019. Mr Markum further advises that once the applicant pays an initial payment fee for the course, the Education Provider will issue a Confirmation of Enrolment (COE), which will be used for the student visa application.

20. Further, the Tribunal notes the email of Monday 14 January 2019 at 12:49 pm from Mr Markum to the applicant as follows:

    Hi Angeline,
    I hope you are very well.
    I have received a COE for you from Imagine Education, which I have attached.
    Please make sure that you have a copy of this when you travel back to Australia. Either a printed copy, or a copy that you can show on your’ phone or computer to the Border Protection staff at the airport if you are asked.
    Please let me know any questions that you may have about study, your’ student visa or anything else.

21. Having regard to the evidence, the Tribunal considers that the applicant intended to study in the field of aged care in Australia in 2019 and had taken steps to apply for a student visa by engaging an agent in Papua New Guinea. Upon learning that the agent had not lodged her application, the applicant took steps to engage Mr Markum. The applicant made the required initial payment for commencement of her study to her education provider, had obtained a COE and had engaged Mr Markum to lodge the student visa application on her behalf on the basis of having been issued a COE to study.

22. The Tribunal finds that the applicant entered Australia on a Tourist visa on 18 January 2019 for the purpose of commencing study in Australia. The Tribunal also finds that although the applicant arrived in Australia on a Tourist visa, the applicant had taken steps to ensure that at the point of entry into Australia the applicant was in a position to inform Australian authorities that she intended to study in Australia as evidenced by the COE. In those circumstances the applicant must have contemplated that she may be questioned about the purposes of her travel to Australia and was prepared to show that it was for study. It appears to the Tribunal that the driving force for the applicant was to commence study in Australia noting her Education Provider had approved her course of study, the course was about to start and the assumption that her application for a student visa would be approved.

23. In terms of the applicant’s circumstances in their home country, in their response to the Tribunal’s ‘Request for Student Visa Information’ form, the applicant records that her three brothers and one sister all live in Papua New Guinea. The applicant keeps in contact with her family through telephone calls once per week.

24. In her written statement to the Tribunal dated 18 April 2019, the applicant stated the following concerning her family:

    I was fortunate to have some employment in my home country as the unemployment rate is around 40%. By undertaking the studies in Home and Community Care I am hoping and expecting that I will increase my opportunities for work at home significantly Not only my brothers but my sister and all my family lives in my home country along with all my aunts, uncles, nieces, nephews and all my extended family lives in my home country. I don’t know why it was indicated that “and their other family members are residing in Australia” This statement is untrue. None of my family reside in Australia. When some of my family visited Australia I also visited Australia at the same time. My family does not reside in Australia. The fact is I have strong family and culture ties to my home country and if you understand anything about my home country you would know my cultural ties to my country are as strong if not stronger than my family ties.

25. In her response to the Tribunal’s ‘Request for Student Visa Information’ form, the applicant records her employment history in Papua New Guinea and that she does have concerns about political or civil unrest in Papua New Guinea. That said, the Tribunal notes the applicant’s evidence of her clear intention to return to live and work in Papua New Guinea.

26. During the hearing the applicant stated that she does not own any property in Papua New Guinea. The applicant stated that when she returns to live and work in Papua New Guinea she will stay with her brother, Mr Gibson Nakandaul and his family in Port Moresby.

27. In terms of applicant’s potential circumstances in Australia, in her response to the Tribunal’s ‘Request for Student Visa Information’ form, the applicant records that she does not own any property in Australia and is not employed.

28. The applicant gave evidence that in Australia she lives with Mr Sydney Ryan on the Gold Coast. The applicant explained that she knew Mr Ryan and his wife as family friends in Papua New Guinea. The applicant also explained that she worked with Mr Ryan in Papua New Guinea when Mr Ryan worked a civil engineer for Lorma Construction. At the time the applicant worked in office administration for Lorma Construction.

29. The Tribunal notes Mr Ryan’s written statement dated 10 July 2018 where he explains that he and his wife will provide financial support to the applicant for her living and study expenses in Australia. Mr Ryan records the reason for providing this assistance was to return a favour for the applicant’s family looking after Mr Ryan’s wife in Papua New Guinea and that Mr and Mrs Ryan wanted to help the applicant.

30. In evidence before the Tribunal Mr Ryan stated that he and his wife separated 12 months earlier and that he alone provides financial assistance to the applicant. Mr Ryan explains he has three adult children, all living in Australia and they each have their own families. Mr Ryan explained that he understood the applicant will be returning to Papua New Guinea upon completion of her study.

31. In evidence Mr Ryan explained that the reason why his written statement is dated 10 July 2018 is because it was provided for the applicant’s first student visa application, which was never submitted by the applicant’s Papua New Guinean agent. Mr Ryan explained that the applicant’s Papua New Guinean agent was the same agent that had provided migration services to the applicant’s family in Papua New Guinea and he did not understand why the agent had not submitted the applicant’s first student visa application.

32. Having regard to the evidence, the Tribunal considers on balance that the applicant’s circumstances in Papua New Guinea do provide an incentive for the applicant to return to work and live in Papua New Guinea, that outweighs the incentive for the applicant to remain living in Australia.

33. The Tribunal notes the applicant’s statement submitted with her applicant for a student visa entitled: ‘Statement for Student Visa Application’. In that document the applicant describes the circumstances that led her to ultimately apply to study in Australia in aged care, including the impact of the deaths of her parents. Further, the applicant explained her reasons for returning to live and work in Papua New Guinea:

    Once I have completed this study and any future study, it is my dream to be able to go back to Papua New Guinea work and help in Aged and Community Care. It is desperately needed in Papua New Guinea because there are not many organization or facilities available, at the moment. I hope that I can help to improve aged and community care in all of Papua New Guinea and even help to teach other people the skills and knowledge that I will learn.

34. The applicant told the Tribunal that upon returning to Papua New Guinea she plans to apply to work in a new hospital in Port Moresby looking after the elderly. The Tribunal notes the applicant had not made any enquiries about working in the new hospital at the time of the hearing.

35. During the hearing, the applicant confirmed to the Tribunal that upon completion of her study in Certificate IV in Aging Support, her intention is to return to live and work in Papua New Guinea. The applicant does not intend to undertake any further study in Australia. The Tribunal accepts the applicant’s evidence in this regard.

36. The applicant told the Tribunal there were no similar courses in Papua New Guinea to Certificate IV in Aging Support. The closest course was to study nursing. The applicant is focused on studying to care of the elderly and has shown progress by completing a Certificate III in Individual Support.

37. Having regard to the evidence, the Tribunal is persuaded by the applicant’s reasons for studying a Certificate IV in Aging Support. In all the circumstances the Tribunal is satisfied as to the value of the applicant studying a Certificate IV in Aging Support in relation to the applicant’s plans for her future.

38. The Tribunal has considered the applicant’s immigration history. In her written statement to the Tribunal dated 18 April 2019, the applicant explains her reasons for regular visits to Australia.

    …My brother was on holidays in Australia when I visited him in 2013 and 2014. So, I visited Australia twice for a month at a time in two years. I don’t consider that to be a “significant amount of time” as stated in the refusal correspondence. I obtained a Visitor’s Visa in 2018 and I came to Australia in February 2018, to do some travelling, site seeing and to see if I could find a course I could undertake, relating to Aged and Community Care. I complied with all of the conditions of the visitor’s visa at all time. The Visa was for 3 years, I could not be in Australia for more than 3 months at a time and I was not able to work.

39. Having regard to the evidence, Tribunal considers the applicant has provided a reasonable explanation as to her immigration history travelling to and from Australia.

    Conclusion

40. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Although the applicant did enter Australia on a Tourist visa shortly prior to commencing study, weighing up the above matters the Tribunal considers that the applicant is not using the student visa program primarily to maintain ongoing residence Australia.

41. Having had regard to all matters, including as canvassed above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

42. 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

43. 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(a) of Schedule 2 to the Regulations.

    Jens Streit
    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.