Perez (Migration)

[2022] AATA 389

Perez (Migration) [2022] AATA 389 (15 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peewee James Chapelette Alonzo Perez

REPRESENTATIVE:  Mr Sanjeev Prasad Pandey (MARN: 1172267)

CASE NUMBER:  2004810

HOME AFFAIRS REFERENCE(S):          BCC2019/6652906

MEMBER:Wendy Banfield

DATE:15 February 2022

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 15 February 2022 at 3:16pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – work history and future business plans in home country – arrived as guardian for student daughter, then dependant on wife’s student visa – applied for visa after wife died – maintained enrolment and completed courses – three children now studying in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

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 5 March 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 December 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 (Cth) (the Regulations) because they were not satisfied the applicant genuinely intends to remain in Australia on a temporary basis.

4. On 17 September 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about enrolment in a registered course of study; and whether the applicant is a genuine applicant for entry and stay as a student, in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 1 October 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. On 30 September 2021 the applicant provided a response to the request for information and submitted the following evidence:

   ·The Department of Home Affairs (the Department) notification and decision record dated 5 March 2020.

   ·Representative’s submission dated 10 December 2021.

   ·Request for student visa information form.

   ·Letter of completion, transcript and copy certificate for Certificate IV in Business dated 20 February 2021.

   ·Letter of enrolment and Confirmation of Enrolment (COE) for a Diploma of Business from 15 February 2021 to 13 February 2022.

   ·COE for an Advanced Diploma of Business from 7 March 2022 to 3 March 2023.

6. The Tribunal also considered the evidence submitted to the Department at the time of application.

7. The applicant appeared before the Tribunal on 13 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

8. The applicant was assisted in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 applicant for entry and stay as a student as required for the grant of a student visa.

11. 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?

12. 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.

13. 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.

14. The Tribunal considered the applicant’s circumstances in his home country. In written evidence and at the Tribunal hearing the applicant explained his background in the Philippines which included employment in the air-conditioning field carrying out repairs and maintenance. He said he had been employed in that capacity until 2015. He submitted he has a brother and sister, as well as extended family members in his home country and owns property. The Tribunal accepts the applicant has ongoing personal ties to his home country, but no independent evidence has been provided regarding the ownership of property or assets in his name. In addition, the applicant has been away from his home country and the full-time workforce there for seven years as of the date of this decision. Although the applicant claims he is planning to establish an air-conditioning business in the Philippines and is studying for that reason, he has made a verbal assertion only, without any evidence to demonstrate he has the means to do so. The Tribunal is not satisfied the applicant’s circumstances in his home country present a strong incentive for him to return.

15. The applicant came to Australia on 2 February 2015 as a student guardian for his daughter and his wife joined him. The applicant advised his wife was diagnosed with cancer and passed away in Australia in 2019. The applicant has two sons who are in Australia to study and improve their career prospects. At the time of application, the applicant was living with his three children. In his written evidence the applicant advised he has the support and assistance of his sister-in-law, his late wife’s sister in Australia. It was submitted that after the applicant and his children complete their studies, they all intend to return to the Philippines. The representative’s submission of 10 December 2021 states the applicant does not have significant community ties to Australia that would lead to an extension of his stay. The Tribunal considered the evidence regarding the applicant circumstances in Australia. It is understandable he wishes to remain with his children, particularly following the loss of their mother, however, the presence of all of his children in Australia provides an incentive for him to remain. In addition, while it was claimed the applicant’s children intend to return to their home country, there is no indication when this will occur. The Tribunal accepts the applicant is currently studying and has completed courses but is not satisfied he genuinely intends to remain in Australia temporarily for the purpose of study.

16. Regarding the value of the course to the applicant’s future; the applicant has submitted he is studying business courses because he plans to start his own business in his home country, repairing and maintaining air conditioners. He stated that studying in Australia also allows him to stay with his children. In his statement to the Department at the time of application, the applicant advised he worked for an employer as an “aircon mechanic” in his home country and has a good idea about repair and maintenance. He submitted that studying a Certificate IV and Diploma of Business will assist him in his future endeavours. The applicant’s representative submitted the business courses the applicant is undertaking are relevant to his plans in the Philippines. The Tribunal accepts the applicant has an employment background as an air-conditioning mechanic and that business courses may be of some value in future. The Tribunal places some weight in the applicant’s favour in assessing the genuine temporary entrant criteria.

17. The applicant’s immigration history is relevant to the Tribunal’s assessment of whether he intends genuinely to stay in Australia temporarily. The applicant first arrived in Australia on 2 February 2015 to accompany his daughter as her guardian. He then applied for, and was granted, a Student (Subsequent Entrant) visa while his wife was studying. On 13 December 2019 the applicant applied for a Student visa as a primary applicant with the intention of studying business courses. The Tribunal notes the applicant did not apply for a student visa as a primary applicant until he had been in Australia for almost five years. He is now intending to remain in Australia until he completes an Advanced Diploma of Business that is due to be completed on 3 March 2023. This will take the applicant’s time in Australia as a temporary visa holder to eight years. In explaining the applicant’s personal circumstances, the representative submitted on his behalf that the although the applicant’s children are in Australia, it does not mean the applicant is not a genuine student. The Tribunal was advised that the applicant did not intend to apply for a further visa when he first arrived, and he applied for a Student visa as a primary applicant nine months before his dependent Student visa expired. As started above, the Tribunal has given some weight to the applicant having maintained enrolment and completed courses but the applicant’s overall circumstances, including the length of time he has spent in Australia to date weigh against him in assessing whether he meets the criteria of a genuine temporary entrant.

18. The applicant’s representative addressed the Department’s reasons for decision and claimed that contrary to their findings, the applicant had researched study options in his home country but found “very limited choices”. It was also submitted the applicant completed the Certificate IV in Business and was due to complete a Diploma to be followed by an Advanced Diploma. Regarding the applicant’s temporary residency in Australia, as of the date of the representative’s written submission on 10 December 2021, it was submitted the applicant requires a further 15 month stay. The Tribunal does not accept the applicant considered study options in his home country and found the choices limited. No evidence of this was provided, or any further detail about there being limited options. By his own admission, the applicant wanted to stay with his children while they are in Australia and decided to study as well. The Tribunal considers the applicant had ample opportunity to pursue any study goals in Australia, including in the five years before he applied for a student visa as a primary applicant. The Tribunal is not satisfied the applicant intends to depart when he completes an Advanced Diploma of Business in 2023.

19. The Tribunal has assessed the evidence individually and cumulatively. While there are some aspects of the applicant’s case that weigh somewhat in his favour such as his enrolment to study business courses, on balance the weight of evidence is against the applicant in assessing whether he is a genuine temporary entrant for study. 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).

20. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.

21. 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

22. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Wendy Banfield
    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;

    d.whether 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.