Naynes (Migration)

[2020] AATA 5040

Naynes (Migration) [2020] AATA 5040 (16 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr John Raymund Naynes

CASE NUMBER:  1923853

HOME AFFAIRS REFERENCE(S):          BCC2019/3395024

MEMBER:Peter Booth

DATE:16 September 2020

PLACE OF DECISION:  Melbourne

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 16 September 2020 at 1:09pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – family and property in home country – business plan to open a bakery in the Philippines – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
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 13 August 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 6 July 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 applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal by telephone on 31 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

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

8. 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?

9. 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.

10. 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.

11. The applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 13 August 2019 refusing his application for a student visa. The applicant understood and that the issue for determination was whether he was a genuine temporary entrant.

12. The applicant said that he is currently enrolled in a Certificate III in Baking which commenced on 13 January 2020 and is due to be completed on 25 September 2020 and then a Certificate IV in Baking which is due to commence on 1 October 2020 and to be completed on 31 March 2021. The applicant had produced a confirmation of enrolment document to the Tribunal in that regard.

13. The applicant had also provided information to the Tribunal in the form of response to a request to do so pursuant to s.359 (2). The applicant confirmed that he did not want to add to or vary this document. In summary the information provided by the applicant was as follows.

14. The applicant was born on 31 January 1981 and prior to arriving in Australia completed a Bachelor of Science in Chemical Engineering between June 1997 and May 2002.

15. The applicant stated his employment history in the Philippines is as follows. He worked as a fishery inspector for the Bureau of Fisheries between August 2011 and June 2018 deriving an annual salary of $9595.80 Australian, a quality assurance specialist between March 2005 and August 2011 earning a salary of AUD$5653.44 and as a quality controller between July 2003 and December 2006 earning a salary of approximately AU$5500.

16. The applicant arrived in Australia on 7 April 2018 and since that time has returned to the Philippines on one occasion in October 2019 for 16 days.

17. The application for the student visa in question was made on 6 July 2019.

18. The applicant stated his visa history and Australia as follows. He held a Subclass 500 (Student)  visa between March 2018 and June 2018 and a further Subclass 500 (Student) visa between June 2018 and August 2019.

19. The applicant disclosed a study history in Australia as follows. He completed a certificate III in individual support between July 2018 and June 2019, a certificate III in baking between August 2019 and August 2020 and a certificate III in baking between January 2020 and September 2020 (this is presumably an error and one of which perhaps is in respect of a certificate II in baking). He further stated that he has future enrolments in a certificate IV in baking commencing in October 2020 and to be completed in March 2021 and a certificate IV in advance baking to be completed between September 2020 and March 2021.

20. As to the availability of similar courses in the Philippines he stated: “I decided to take my certificate courses in baking here in Australia, because of the advancement in educational curriculum, equipment, high-technology facilities and even food ingredients which are not commonly used or available in my home country.”

21. As to his employment history in Australia he stated that he is employed by Raffles Healthy Foods as “operations team member (picking and packing – bread)” from July 2018 to date earning a salary of approximately AU$16,000.

22. He stated that his immediate family in the Philippines comprises his partner, father, two sons and brother.

23. He stated that he has assets in the Philippines comprising real property.

24. As to his future employment plans he stated “after completion of my courses, I will go back to my country and put up my own bike shop and introduce gluten-free breads, I will apply all the learnings that I gained, it will give me an edge compared to other bakers in my home country.”

25. As to his expected future remuneration he stated “after the completion of the certificate courses, I will put up my own bake shop by 2022, I will use the knowledge and skills I acquired and together with my work experience, the bake shop will become a profitable business. Thus, it will give me a higher income and have a sustainable career compared to being an ordinary employee.”

26. The Tribunal proceeded to ask the applicant some questions arising from the information paraphrased above. The applicant’s responses and the questions were in summary as follows.

27. The applicant confirmed that he arrived in Australia as the holder of a tourist visa on 5 April 2018. His purpose was to “visit my sister-in-law, also a reward for my son.” When asked how long he intended to stay he said until “June 19, 2018”.

28. The applicant confirmed that he was employed prior to arriving in Australia and that he had taken leave from that employment for a period of two months. He also confirmed that he had subsequently resigned from that employment “starting July, May 2018”.

29. The applicant confirmed that he had applied to re-enrol in courses of study in Australia in “May 2018”.

30. When asked why the applicant had changed his mind about the purpose of travelling to Australia he said “I want to open up an aged care facility, a need to study individual support”.

31. The applicant confirmed that his son had left Australia on  9 June  2018 and that his wife had accompanied him to Australia but had returned to the Philippines with his son.

32. The applicant confirmed that his sister-in-law resides in Australia.

33. The applicant declined an opportunity to add anything further to his application for review.

34. The applicant provided an undated statement in support of his application for review, prior to the hearing. At the outset the applicant was asked whether he wanted to vary the statement to which he said “no”. The applicant did not refer to the statement during the course of giving his oral evidence. Nonetheless it has been taken into account by the Tribunal and given appropriate weight. The Tribunal observes that it is broadly consistent with the applicant’s responses to the request for information and his oral evidence at the hearing.

35. The applicant also provided, prior to the hearing, a variety of documents. None of these documents were referred to by the applicant in the course of giving his oral evidence. Nevertheless they have been taken into account by the Tribunal, to the extent relevant and given appropriate weight. The Tribunal observes that the applicant had provided a business plan in respect of a bakery to be opened in the Philippines.

36. The applicant’s representative was invited to make submissions. Broadly his submissions were that the applicant’s wife and child and extended family reside in the Philippines, the applicant owns property in the Philippines and intends to start a bakery. He observed that the applicant would not meet the relevant criteria for permanent residency in Australia and that the applicant’s wife and son did not apply to join him as secondary applicants. He made peripheral reference to a detailed business plan prepared on behalf of the applicant and said that the applicant’s conduct was consistent with an intention to remain in Australia temporarily. In response to a question from the Tribunal, the representative said he otherwise relied on his undated written submissions.

37. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl.500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.

38. The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case. On the one hand the applicant arrived in Australia as the holder of a tourist visa intending to stay for approximately three months. However he applied to be enrolled in courses of study in May 2018. Whilst an applicant is entitled to apply for a student visa despite holding a tourist visa in Australia, the circumstances of the application for a student visa are relevant in assessing whether the applicant is a genuine temporary entrant. He completed a vocational course in individual support in July 2019. This apparently was because he desired to open an aged care facility. He did not explain or did not explain in any detail why he had changed his study direction. He has returned to the Philippines once since arriving in Australia. However, in the applicant’s favour, his wife and son returned to the Philippines and are not part of this application. The applicant has completed vocational courses in baking and has provided a business plan in respect of opening a bakery in the Philippines. Further the applicant considers that he will complete his course of study within a short period of time. However, on balance, and not without some misgivings the Tribunal considers it appropriate to give the benefit of the doubt to the applicant.

39. 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).

40. 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.

41. 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

42. 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.

    Peter Booth
    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.