Ocares Rojas (Migration)

[2019] AATA 191

Ocares Rojas (Migration) [2019] AATA 191 (18 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Guissela Veronica Ocares Rojas

CASE NUMBER:  1712089

HOME AFFAIRS REFERENCE(S):           BCC2017/1511740

MEMBER:Mark Bishop

DATE:18 January 2019

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 18 January 2019 at 3:31pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – sequential and continuing course enrolment – good academic progress – course valuable to career progression – compliance with visa conditions – family and community ties with Chile – decision under review remitted for reconsideration 

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359, 499

Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 18 May 2017 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 26 April 2017. 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 intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a history of the applicant’s immigration visa and study history in Australia.

5. The applicant was assisted in relation to the review by their registered Migration Agent (MA).

6. The Tribunal resolved the review application on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

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

9. 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?

10. 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.

11. 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.

    BACKGROUND

12. The applicant was granted her initial TU-570 visa offshore on 14 May 2014. She arrived in Australia on 27 June 2015 and has not left Australia since arrival.  The applicant was granted a further student visa on 5 March 2015 valid until 26 April 2017. She submitted her current student visa application on 26 April 2017. This application was rejected by the delegate on 18 May 2017. The applicant then sought review before the Tribunal.

13. In supporting documentation attached to her visa application the applicant advised she wished to study a series of English courses and then a set of courses in the Hospitality Management Industry.

14. In the period June 2014 until February 2017 the applicant enrolled in and completed 4 English courses at progressively higher Certificate level. Her enrolments were sequential and continuing. There were not any periods of non-study or non-enrolment. The applicant adhered to all conditions attached to her student visa. The applicant progressed academically.

15. From July 2017 until the present time the applicant has been enrolled in Commercial Cookery courses at Certificate III and IV level. She completed the first course in Commercial Cookery in July 2018 and is currently enrolled in the second Commercial Cookery course. She is scheduled to conclude her Diploma of Hospitality Management in October 2019.

16. The applicant provided a detailed, lengthy and well-constructed GTE Statement to the Tribunal that addressed all relevant principles in Ministerial Direction number 69. It outlined considerations relating English proficiency, the applicant’s intent to complete her current set of courses, the value of the course to her future (higher wages and promotion plus satisfaction), her ties to Chile (daughter lives in Chile) her lack of ties to Australia because of no family or community ties and poor advice and service from prior migration agents.

17. The applicant provided a written response to a Request for Student Visa Information under s.359(2) of the Migration Act. It outlined the following:

    ·She completed a tourism technician course in Chile in December 2014;

    ·She was employed in Chile in various capacities as a sales executive, and logistic executive in the period January 2002 until May 2014;

    ·She provided detail  of all course enrolments and course progress in Australia;

    ·She outlined her employment history as a cleaner and kitchen hand in Australia from July 2014 until the present time;

    ·She advised she is a citizen of Chile, first arrived in Australia in June 2014, has not returned to her home country and has not applied for a visa to any other country;

    ·She advised her annual living expense were approximately $24,000;

    ·She advised her family lived in Chile

18. The applicant has been resident in Australia for almost six years. She has pursued formal study in the ELICOS and VET sector. She has provided sufficient detail to the Tribunal so that it is satisfied there is a logical connection and coherent plan between her career experience to date, current study plans and future career.

19. The applicant has advanced sound reasons for not undertaking the study in her home country. The applicant has outlined ties to her home country. She is a single woman. Her daughter lives in Chile as do other members of her own family. The Tribunal is satisfied the applicant’s personal ties to her home country serve as a significant inventive to return to her home country.

20. The applicant has been resident in Australia for nearly six years. In this case the Tribunal is satisfied the applicant has complied with study obligations to date. She has maintained enrolment in an approved course and provided proof of ongoing payment of substantial tuition fees. She has provided detail of future intent. She has outlined detail of financial support. The Tribunal understands the future benefit to the applicant of completion of her course/s of study. The Tribunal is satisfied the applicant is undertaking a course that is consistent with her current level of education and that the course will assist her to obtain employment in her home country, whether that is self-employment or direct employment.

21. The applicant’s ties to Australia are limited. They appear to be no family members. There is no evidence of community engagement or community involvement. There is limited evidence of part-time employment in Australia. The Tribunal is satisfied the applicant’s ties to Australia do not present as a strong incentive to remain in Australia.

22. The applicant has complied with visas and relevant conditions at all times. There is no adverse evidence before the Tribunal concerning the applicant’s travel or visa history.

23. 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).

    Conclusion on cl.500.212

24. 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.

25. 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

26. 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.

    Mark Bishop
    Member