Pelden (Migration)

[2019] AATA 2228

Pelden (Migration) [2019] AATA 2228 (8 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sonam Pelden

CASE NUMBER:  1703549

HOME AFFAIRS REFERENCE(S):           BCC2016/2875677

MEMBERs:Shahyar Roushan (Presiding)

David Thompson

DATE:8 March 2019

PLACE OF DECISION:  Perth

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 08 March 2019 at 4:17pm

Statement made on 08 March 2019 at 2:15pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – unexplained change of study path – gap in enrolment – non-compliance with visa conditions – initial course progress – circumstances of decision to alter direction of study – evidence of progress – value of new studies – value of qualifications in home country – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.611

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 10 February 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 30 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she was not satisfied that the applicant intended genuinely to stay in Australia temporarily.

4.    The applicant appeared before the Tribunal on 27 February 2019 to give evidence and present arguments.

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

BACKGROUND AND CLAIMS

6.    The applicant is a citizen of Bhutan.  She applied for, and was granted, a student visa shortly after finishing her secondary school studies.  The applicant arrived in Australia on 23 September 2013 and commenced Diploma of Business studies shortly afterwards, with the intent of transferring to Bachelor of Commerce studies in due course.  Approximately 3 months after commencing her Diploma of Business coursework, the applicant changed her enrolment to a Murdoch University Preparation Course.  After finishing that course, and after a gap of over 4 months, the applicant enrolled in a Diploma of Science (Health Studies) course as an entry pathway to Bachelor of Nursing studies.  She later changed her enrolment to various vocational courses in Individual Support and Ageing Support with a view to enrolling in a Bachelor of Community Services course.

7.    The applicant applied for a second student visa on 30 August 2016.  On 10 February 2017 the delegate refused her application.  The delegate’s decision, a copy of which the applicant has submitted to the Tribunal, states that the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia, and to leave Australia at the conclusion of her studies.  The delegates reasons for reaching that conclusion were, in summary, that:

a.The applicant was granted a student visa to undertake Diploma of Business/Bachelor of Commerce studies, yet only pursued her Diploma of Business studies for 3 months and never commenced her Bachelor of Commerce studies.

b.After completing a University Preparation course on 23 January 2015, the applicant did not commence studying again until 10 June 2016, representing a gap in enrolment of over 4 months in breach of visa condition 8202 (Continues Studying).

c.The applicant had behaved unreasonably and without justification in changing study paths after only 3 months.

d.The applicant’s Confirmation of Enrolment (COE) for her Diploma of Science (Health Sciences) course was cancelled on 11 November 2016 due to unsatisfactory course progress.

e.At the date of the delegate’s decision, the applicant had no other COE, and would seem not to have been studying since 23 September 2016.

8.    At various times prior to the Tribunal hearing the applicant provided a number of additional documents.  Those documents were received again as one bundle from the applicant’s representative, in the form of attachments to written submissions. As relevant to the Tribunal’s decision, those documents were:

a.a personal statement made by the applicant.

b.Academic records and completion certificates for courses undertaking after the date of the delegate’s decision, and COEs for the applicant’s current studies.

c.Evidence of available funds and current overseas student health care cover.

d.An extract of communications by electronic means with family in Bhutan.

9.    On the morning of the hearing, the Tribunal received two further documents from the applicant through her representative: copies of 2 email messages from the Institute of Health and Nursing Australia (IHNA) to the applicant, dated 6 February 2017 and 14 February 2017 respectively.

The Tribunal has considered those documents, the applicant’s written submissions, and the applicant’s evidence given orally at hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 [insert brief description].

2. 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?

1. 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.

2. 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.

3. In this case, the delegate took the view that the applicant’s early change from business to health sciences studies indicated that she lacked the requisite genuine intention to stay in Australia temporarily. 

4. In oral evidence the applicant stated that she had wanted to study science courses in her upper secondary schooling in Bhutan, but that she had only been able to obtain entrance to a commerce stream, and that if she had undertaken tertiary level studies in Bhutan she would (given that background) only have been eligible to study commerce.  Not appreciating that her choices might be wider in Australia, when she and her family decided that she should seek to study in Australia she applied to enrol in business studies. 

5. The applicant further stated that she transferred from her Diploma of Commerce course to the University Preparation Course on the advice of staff at her institution (Murdoch Institute of Technology), because it was thought that the university foundation course would help her overcome difficulties she was having with her diploma level work.  After the applicant learned that she could potentially pursue other areas of study in Australia, she chose to cease her enrolment in business studies and apply to enrol in a Diploma of Science (Health Sciences) course, as an entry pathway to Bachelor of Nursing studies with a view to working in community health after her return to Bhutan.  The Tribunal accepts the applicant’s evidence as a reasonable explanation of her decision to change from business to health sciences studies and does not share the delegate’s concerns.

6. The delegate also noted that at the time of decision the applicant had apparently not been studying since 11 November 2016, when her then-current COE (from Perth Institute of Business and Technology) had been terminated for poor academic progress.  The delegate took this as an indication that the applicant had no genuine intention to remain in Australia temporarily.

7. The documents referred to in paragraph 9 above are relevant to this issue, and the applicant gave oral evidence on it at hearing.  On the applicant’s account, when her COE was cancelled she suffered a crisis of confidence and considered returning to Bhutan, but was prevented from doing so by her fear of disappointing her family.  She considered other options for study in the health sciences/community services field, and applied to enrol in nursing studies at IHNA.  The documents referred to in paragraph 9 above were provided to demonstrate that IHNA had expressed reluctance to enrol the applicant directly into a Diploma of Nursing Course, and required that she complete a Certificate IV in Ageing Support first. The applicant ultimately enrolled in Certificate III Individual Support and Certificate IV Ageing Support courses  with Stanley College, and then in a Diploma in Community Services with Stott’s College.  The applicant transferred between those institutions because Stott’s College offered a pathway to appropriate Bachelor’s degree studies, whereas Stanley College did not.  The applicant provided extracts of her academic results from those institutions, and current COEs.  On the face of those documents the applicant has been enrolled since 6 March 2017 and is progressing in her studies.  The applicant also gave evidence that the qualifications she will gain on the completion of these studies are highly sought after in Bhutan, and will allow her both to gain employment and make a contribution to her community.

8. The Tribunal found the applicant’s evidence persuasive and considers her account to be consistent with a genuine intention to leave Australia once she has finished her studies.  In reaching this view, the Tribunal has also placed weight on the fact that since making her decision to pursue health sciences/community services, the applicant has studied in these areas only, and that although the applicant has experienced some further study difficulties, she appears to have overcome them and has been working consistently towards entry into and completion of a Bachelor’s level programme.

9. There is no evidence that the applicant has any family network in Australia, or has formed any relationships of concern.  Nor is there any evidence that the applicant has become deeply involved with any local community, Bhutanese or otherwise.  The applicant submitted the document identified in paragraph 8(d) above as evidence that she maintains her relationships with her family in Bhutan.  That document was uninformative in itself, but the applicant’s oral evidence as to the depth of her attachments with her family members and her regular and prolonged contact with them by electronic means was convincing.  No evidence has been given of any political or civil unrest or compulsory military service in Bhutan that would provide the applicant with reasons to avoid returning there.  No evidence has been given indicating any economic reason that would tend to motivate the applicant to remain in Australia.  Indeed, the applicant submitted, and the Tribunal accepts, that there is no direct pathway available to the applicant under the current Australian migration programme that would allow her to remain in Australia after she concludes her studies.

10. This is the applicant’s second application for sub-class 500 student visa.  Leaving aside an instance of non-compliance with a visa condition, which will be addressed below, there is no evidence before the Tribunal indicating that the applicant has any other history of attempts to enter Australia, and no evidence of any other factor in her migration history that suggests that she is not a genuine temporary entrant.

11. 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).

Does the applicant intend to comply with visa conditions?

1. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

2. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).  The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

3. The delegate noted one instance of non-compliance with visa condition 8202: the applicant held no COE for the period between 23 January 2015 and 10 June 2016.  It was in this period that the applicant decided to pursue studies in health sciences and community services rather than commerce.  This instance of non-compliance was raised with the applicant at hearing as a matter of concern to the Tribunal.  The applicant gave evidence that after finishing her Murdoch University Preparation Course she had attempted to enrol in a Diploma of Science (Health Sciences) course offered by Perth Institute of Business and Technology as a pathway course to Bachelor of Nursing studies at Edith Cowan University.  She made that application on 30 January 2015 with a view to starting her studies in the February 2015 intake.  She was unable to complete her application because she required a release letter from Murdoch University, which she was not able to obtain until 4 May 2015.  She then completed her application and commenced studying in the June 2015 intake.

4. The Tribunal accepts the applicant’s evidence on this issue.  On that evidence, the applicant’s non-compliance with visa condition 8202 was inadvertent, and does not indicate that the applicant does not intend to comply with visa conditions in future.

5. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

1. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

2. No other relevant matter has been brought to the Tribunal’s attention. Nor is any other relevant matter apparent on the evidence before the Tribunal.

3. 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.

4. 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

1. 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.

Shahyar Roushan
Senior Member

David Thompson
Member