Pedraza Pena (Migration)

[2020] AATA 6185

Pedraza Pena (Migration) [2020] AATA 6185 (7 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Diana Yaneth Pedraza Pena
Mr Edinzon Saldarriaga Pascuas
Miss Sara Lorena Saldarriaga Pedraza

CASE NUMBER:  1915102

HOME AFFAIRS REFERENCE(S):          BCC2019/677658

MEMBER:Noelle Hossen

DATE:7 October 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 07 October 2020 at 2:47pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– applicant’s immediate family are all residing in Australia – applicant has not demonstrated courses are going to add value to future career– not a genuine temporary entrant – no current confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499

Migration Regulations 1994, r 1.03, 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 28 May 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 28 February 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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).

4. The Tribunal invited the applicants to provide further documents that they wished to rely on at the hearing on the 21 November 2019 pursuant to Section 359(2).

5. The applicants replied to the invitation on the 5 December 2019 by providing a Form 17,12 documents including current Certificates of enrolment, passports and enrolment status documents and various other documents were filed prior to the hearing.

6. The applicants appeared before the Tribunal on 9 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Edinzon Pascuas.The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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)

10. 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?

11. 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.

12. 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.

13. The first named applicant arrived in Australia on the 3 December 2018 with the third named applicant.

14. She was born on the 2 September 1982 in Colombia. She is married to the second named applicant and they have been married for 16 years. They have a daughter Sara who is the third named applicant who is presently studying at Aranmore High School in year 10.

15. The first named applicant told the Tribunal that her parents live in Colombia. She has one brother who is living in Perth. He arrived in Australia in November 2019.He came to Australia to study English. He is single and is 39 years of age. She does not have any other family members in Western Australia.

16. The first named applicant arrived in Australia with her daughter Sara who is the third named applicant in December 2018 to visit her husband. She was on a tourist visa. He was here on a Student Visa. He obtained a student visa which was in effect from August 2018 to the 21 April 2019.

17. The Tribunal finds that the fact that the first named applicant’s immediate family namely her husband, daughter and brother are all residing in Australia now, will serve as a significant incentive for her to wish to remain living in Australia. The Tribunal has considered the fact that the first named applicant’s parents remain in Colombia as a factor that might serve as an incentive for her to go back to her home country but the family members who are presently in Australia are the closest to her so the Tribunal places significant weight against the applicant’s case in view of those facts. The Tribunal does have concerns that the applicants may not wish to depart Australia at the end of their stay.

18. She stated in her oral sworn evidence that she lives with her husband and her brother. She said that at the time of the hearing that she was not working, and neither was her brother. She owns a car in Australia worth $2400.

19. She said that her husband was employed and that he worked as an estimator. He said that he earns $800 per week working the 20 hours per week.

20. The first named applicant did say in sworn evidence that she has purchased an apartment in Colombia 7 years ago. The Tribunal has considered that fact that the first named applicant does have some financial ties to her home country and weighs those facts in favour of the applicants’ case.

21. The first named applicant studied at the Universidad De La Salle and obtained a Bachelor in Spanish and English. She is now seeking to study a course at vocational level.

22. She has had experience in the workforce as she stated in her written evidence that she had worked as a receptionist from 2007 to 2009.She worked as an assistant in 2 companies and was an assistant in the last company for 7 years .The first named applicant has had a lot of work experience in a field that is not consistent with her current studies. She has had a lot of work experience and was earning a reasonable income of $19,617. She gave up long standing employment in her home country and decided to study in Australia whilst on a tourist visa in Australia. The Tribunal does find that the first named applicant may not have had the right intention when applying for a tourist visa and that fact causes the Tribunal some concern.

23. The fact that her husband was already here on a student visa does cause the Tribunal some concern about the sincerity of the application of the first named applicant to also study in Australia.

24. The first named applicant was travelling with her child, on a visitor visa, who was at an age where she would be impacted with the loss of her friendship groups by being uprooted from her High School. It seems odd that a decision was made to stay in Australia on a temporary visa and to not allow her to finish her High School in her home country. It would seem that there must have been a pre conceived plan for the family to move to Australia as it does seem odd that they would give up their jobs ,lifestyle, friends to travel to a foreign country just to allow the first named applicant to study on a temporary visa.

25. When she was asked whether her daughter was pleased with the change requiring her to leave all her friends behind, the first named applicant said that “she was ok with that”. She said that her daughter was looking forward to the opportunity to meet new friends.

26. The Tribunal expects that there must have been a plan before travelling to Australia as they did not return to Colombia to sort out their financial affairs after they arrived in Australia

27. There is also the fact that all the parties were inconvenienced by the change of plan and the cost involved in settling down in Australia. The application for a student visa was made in February 2019 just prior to the time that the visitor visa would have expired as that was to occur on the 4 May 2019.

28. The applicants have not returned to Colombia since their arrival in Australia.

29. The Tribunal does not accept the evidence of the applicants that they travelled to Australia and decided that she would study to improve her work prospects as the first named applicant was in a long-standing occupation with a steady job of 7 years.

30. She is now proposing to study a Diploma in Child Care that will extend her stay from the 3/2 /2020 to the 31/1/2021.

31. Having regard to the applicant’s circumstances and where she is at in her career, the Tribunal is not satisfied that the study proposed will assist her in the future to improve her employment prospects in her home country or a third country. The Tribunal considers that the vocational courses proposed to be of marginal value to someone with her many years of experience.

32. There was a lack of evidence provided to the Tribunal and no adequate explanation about the reality of opening a childcare centre in Colombia. If the first named applicant was seriously contemplating opening a childcare centre in Bogota she would have had a more defined plan. The Tribunal does not accept that the courses are going to add value to the first named applicant’s prospects of getting employment in the future in her home country as the applicant has not provided any convincing evidence to the Tribunal as to how she plans to implement the plan.

33. The first named applicant did travel to other countries namely Indonesia, Ecuador and Mexico previously. She stated that she had not been refused a visa from any other countries. The Tribunal does attach some weight of the fact that the applicant has complied with the migration laws of other countries in favour of the applicant’s case.

34. The applicant claims that she is in Australia to study English and for her to study Childcare as she wishes to open a childcare centre in Colombia that will be bilingual following Australian Guidelines and methodology.

35. She said in spite of the fact that she studied English in Colombia that she did not feel confident with her English Skills in Australia as the previous studies were taught by Colombians and it was quite difficult to improve her skills and her accent and to practice English. The Tribunal cannot make a finding about whether the first named applicant’s career will improve in Colombia by the fact that she has studied English in Australia.

36. The Tribunal does take into consideration that the first named applicant did study English at a University in Colombia and that she did have a prior interest in the subject so that it is plausible that she would wish to update her skills in Australia and immerse herself in speaking English on a daily basis. The Tribunal does place some weight in favour of the applicant’s case based on the facts contained in this paragraph.  

37. She stated that there are no specific courses in childcare in Colombia and she wanted to learn the basic skills in Australia.

38. She did state that she planned to return to Colombia as she has everything in her own country and that she did not plan to stay in Australia as she has her friends, her culture and a job to go back to. The Tribunal does not accept those facts as they have not returned to Colombia since their arrival in Australia.

39. The applicants do not have to complete military service in their home country and there is no civil or political turmoil in their home country.

40. There is no relevant evidence about the applicants economic situation relative to others in  Colombia so the Tribunal does not make any findings about that factor.

41. The second named applicant and the third named applicant have applied for a visa on the basis of being a member of the first named applicant’s family unit and therefore their application is determined by the first named applicant’s Application.

42. 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).

43. 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

44. The Tribunal affirms the decisions not to grant the applicants’ Student (Temporary) (Class TU) visas.

    Noelle Hossen
    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.