Ponte (Migration)

[2022] AATA 1829

Ponte (Migration) [2022] AATA 1829 (5 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Deborah Ponte

REPRESENTATIVE:  Ms Wai Shan Leung (MARN: 1171426)

CASE NUMBER:  2114449

HOME AFFAIRS REFERENCE(S):          BCC2021/549772

MEMBER:Joseph Francis

DATE AND TIME OF

ORAL DECISION AND REASONS:         5 April 2022 at 12:05 pm (WA time)

DATE OF WRITTEN RECORD:                27 April 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets cl. 500.212(a) of schedule 2 of the Migration Regulations 1994.

Statement made on 27 April 2022 at 1:40pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–genuine temporary entrant for study – personal ties to home country – children provide a strong incentive for applicant to return home – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 500.212

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 September 2021 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 5 April 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. On 16 April 2022, you applied for a Student (Temporary) (Class TU) visa for which the decision-maker from the Department of Immigration, a delegate, refused the visa.  You then applied to the Tribunal for that decision to be reviewed.

4. Your visa application was refused by the delegate because the delegate had decided you did not satisfy the requirements of clause 500.212(a) of schedule 2 of the Migration Regulations 1994. I do not need to go into the detail as to the reasons they refused the visa other than to say I have read the decision and I am aware the delegate did not accept that you were a genuine temporary entrant as a student.

5. In making a decision about your application, I must consider everything that you, and your representative, provided to both the Department, as part of the visa application, and to the Tribunal up until and including during the hearing, the evidence that yourself and your witness, in this case your sister, provided to me, your arguments as to why the visa should be granted.

6. I consider your application as I am now the decision-maker and I must follow the same laws and regulations that the delegate was also required to.  I invited you to participate in a hearing because I was not able to decide the application on the information I had before me.  So, I wanted to hear from you first-hand as to why you believe the visa should be granted.  I have given you the opportunity to give evidence and present your arguments relating to the issues in your case.  I have received submissions from yourself, your agent and also oral evidence from your sister and I have given your representative the opportunity to give submissions at the hearing.

7. The Tribunal also, as I have mentioned, heard evidence from your sister, Mrs Faith Beacon, who outlined her understanding of your intentions to depart Australia on the completion of your studies.  I note, in particular, you are currently enrolled in a course, a diploma in community services.  So, the Tribunal considered the question if you are a genuine applicant for temporary entry and stay as a student.

8. I have put particular weight on the confirmation of enrolment you have in the registered course which is current as of today and at the time therefore of this decision.  Because of you being currently enrolled, the only determinative issue for me to decide has been whether or not you are a genuine applicant for temporary entry and stay as a student.  So, I have considered all of the documents, and the information you have provided to me, to consider that particular question.

9. In looking at this matter, I am required to consider the law and, in particular, Ministerial Direction no.69. So, in assessing if you are a genuine temporary entrant for a student visa, I must consider and apply clause 500.212 of the Migration Regulations and a legislative instrument called, as I mentioned, Ministerial Direction no.69. It has a title and it is called ‘Assessing the genuine temporary entrant criteria for student visa and student guardian visa applications’.

10. Together these documents tell me to assess if you intend to genuinely stay in Australia as a temporary student and also if you intend to comply with the visa conditions, if the visa is granted, and whether you are a genuine applicant for entry and stay as a student therefore because of any other relevant matters.

11. I have to ask a number of questions which I have considered during the hearing and I have thought about prior to making this decision.  In particular, I have to regard to your circumstances both here in Australia and in your home country.  In particular I note you have two young children, back home in the Philippines; you have told me they are aged eight and five and they are being cared for by your parents.  I also note that you have provided evidence that you have no intention to bring your children to Australia as secondary visa applicants should the visa be granted.

12. I find your children provide a strong incentive for you to return home on the completion of your course and I balance this with the fact that you also have two sisters of your own residing here in Perth, one of which you live with.

13. I also have to consider whether the course of study, or a similar course, is available in your home country and whilst there may have been similar courses available in the Philippines, I note that your ability to return home, during the time you have commenced the study, was somewhat hindered during the COVID-19 pandemic contributing to your decision to commence studying while you were here.

14. I also note the evidence that your sister provides financial support; in particular, the ability for you to reside with her during your stay in Australia.  So, I place weight on your evidence that you intend to depart Australia on completion of your diploma of community services and I do not do that lightly.  It is an important statement and important evidence that I accept your intentions are to depart Australia on completion.

15. When I asked you, and you indicated, that you can foresee no circumstances in which you might apply for a visa to further stay in Australia on that completion on 12 months’ time.  I also place weight on the evidence that you are now one year, or 50 per cent, through a two-year course. 

16. I have no evidence of course failure or non-attendance or non-compliance with the course progression requirements.  In fact, I do have evidence in the form of a certificate from the course provider indicating your successful progression to date now, as I said, you are halfway through that course.

17. With regards to complying with your visa conditions, I note that you previously held a tourist visa for Australia and you departed on that visa before returning back to Australia.  In fact, I understand you first arrived here in Australia on 31 August 2019 and departed on the expiration of that visa on 3 January 2020 and you then returned to Australia in April 2020.

18. So, on the evidence I have, which you have demonstrated so far, it is my understanding, and I accept, that you intend to comply with the visa conditions.  In fact, I have no evidence to suggest you do not intend to comply with those visa conditions.

19. In  making my findings, I have considered all of the documents, and the information that was available, and oral evidence that you and your sister have provided independently and cumulatively.  So, in relation to the question about your intention to genuinely stay in Australia temporarily, I find that you intend to depart Australia and you are in fact a genuine temporary entrant for the purpose of completing your study.

20. The Tribunal is satisfied that the applicant is a genuine applicant for entry to stay as a student as required by clause 500.212 and, given the above findings, therefore the appropriate course of action is to remit the application for the visa to the Minister to consider the remaining criteria for a subclass 500 student visa.

    DECISION

21. The Tribunal remits the application for Student (Temporary) (Class TU) visa for reconsideration with the direction that the applicant meets the following criteria for a subclass 500 student visa: clause 500.212(a) of schedule 2 of the Migration Regulations 1994.

    Joseph Francis
    Member