Quarantotto (Migration)

[2021] AATA 2332

Quarantotto (Migration) [2021] AATA 2332 (3 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Alice Quarantotto

CASE NUMBER:  2005207

HOME AFFAIRS REFERENCE(S):          BCC2019/6430283

MEMBER:T. Quinn

DATE:3 May 2021

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:

·Clause 500.312(a) of Schedule 2 to the Regulations.

Statement made on 03 May 2021 at 12:23pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant – applicant is a member of the family unit of her partner – genuine de facto relationship – applicant’s community ties to Italy – significant incentive for her to return– significant incentive to return home –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 338, 347,499
Migration Regulations 1994, Schedule 2, cl 500.312(a)

CASES
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Tshering v Minister for Home Affairs [2019] FCCA 2667

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 (‘the delegate’) on 24 February 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant (‘the applicant’) applied for the visa on 3 December 2019 as a Subsequent Entrant and as a member of the family to join her partner, Callum Cocking (aged 28, hereinafter referred to as ‘Mr Cocking’) who holds a TU-500 Student Visa (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  Mr Cocking was the primary applicant for a Subclass 500 (Student) visa to undertake study in Australia and neither the applicant nor Mr Cocking claims to meet the criteria for a Subclass 590 (Student Guardian) visa. 

3. On 24 February 2020, the delegate refused to grant the applicant the visa on the basis that the applicant did not satisfy the requirements of clause 500.312(a) of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that she was not considered to be a genuine temporary entrant. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 16 March 2020, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

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

6. The applicant was listed to appear before the Tribunal via telephone hearing on 5 May 2021 to give evidence and present arguments.  However, upon considering the material and evidence before it, the Tribunal determined that a decision could be made without the need for a hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review ought to be remitted in this case.  In reaching its decision, the Tribunal has had regard to:

   a.all written material filed by or on behalf of the Applicant; and

   b.other relevant documents on the Tribunal and Department files.

   The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to the information that the Tribunal has found to be fundamentally or materially significant to the determination of the issues in the case.

   STATUTORY FRAMEWORK

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 clause 500.211 to clause 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 satisfies the secondary criteria.

9. Clause 500.312 requires as follows:

   The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa 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 clause 500.312(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction requires the Tribunal to have regard to a number of specified factors. These factors must be considered in relation to both the primary visa holder’s application at the time that a decision maker determines that application but also in relation to individuals such as the applicant, as members of the family unit of the primary visa holder. The exception in the applicant’s case in relation to the Direction factors is that matters relating to studying and the value of the course, namely the factors in paragraphs 9(a) and 12(a)–(c) of the Direction, are not directly relevant considerations unless there is some relevance to this information in the context of any of the other factors (for example, the applicant’s immigration history if the applicant previously held and breached a student visa condition).[1]  Therefore, in the present case, the Direction factors must be considered in relation to:

    ·the applicant’s circumstances in their home country and potential circumstances in Australia;

    ·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.

    [1]         Maharjan (No 2) v MHA [2020] FCCA 731

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.

12. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[2]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.  In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.

    [2]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicant is a 26-year-old female Italian citizen who is in a relationship with Mr Cocking (aged 29 years).[3]  The applicant first arrived in Australia on 5 October 2014 on a Working Holiday visa.  She was granted a further Working Holiday visa on 7 June 2015.  She was then granted a visitor visa offshore and re-entered Australia on 24 September 2019 on that basis.[4]

    [3]See delegate’s decision.

    [4]See submissions filed 3 May 2021.

14. The criteria that must be satisfied by the applicant is that she must be a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa.  The applicant filed with the Department a relationship certificate dated 28 October 2019 and a number of documents evidencing her relationship with Mr Cocking including: joint bank account details; communications from October 2017; a joint tenancy agreement; photos; a statement from Mr Cocking.[5]  The delegate did not decide this application on the basis of whether or not the relationship was genuine.  The Tribunal does not propose to change the question for determination and, in any case, based on the material before it finds that there is a genuine de facto relationship.  The Tribunal considers the applicant is a member of the family unit of her partner.  She has also indicated her partner has completed a Certificate III in Carpentry and is currently studying a Diploma of Building and Construction on a student visa which is valid until 15 March 2022.[6]  The Tribunal is satisfied that Mr Cocking holds a student visa, having satisfied the primary criteria for that visa.

    [5]See Department file.

    [6]See submissions filed 3 May 2021.

15. The applicant submits that upon completion of Mr Cocking’s study they plan to return to Italy briefly to reunite with her family and then look to pursing their ‘next chapter’ in Europe and Costa Rica.[7]

    [7]See submissions filed 3 May 2021.

16. The applicant and her partner own AUD60,000 invested in stocks and her family owns properties in Italy.[8]  She has not been working onshore because she does not have work rights although the Tribunal notes she has previously been onshore on Working Holiday visas.[9]  She has monthly expenses in Australia of AUD1,200.[10]  The Tribunal notes that the United Nations Human Development Index, which is a statistical comparison of life expectancy, education and per capita income indicators by country, ranks Italy as 129^th and the United Kingdom (where her partner is from) as 13^th and Costa Rica as 62^nd in the world as compared to Australia’s ranking of 8^th in the world.[11]  The Tribunal considers that the applicant’s economic circumstances in Australia relative to Italy, England and Costa Rica do not appear to be presenting as a significant incentive for them to remain onshore at this time.

    [8]See submissions filed 3 May 2021.

    [9]See submissions filed 3 May 2021.

    [10]See submissions filed 3 May 2021.

    [11]See Table 1 of United Nations’ Human Development Report 2020 commencing at page 343 <>

    The applicant’s entire family live in Italy, this includes her mother, step father, father, sister (and sister’s fiancé), father, half-brother, grandparents and extended relatives such as aunts, uncles and cousins.[12]  Mr Cocking’s family live in England.[13]  The applicant speaks to her family daily and describes a very close relationship with her family.[14]  Her submissions in relation to community ties to her home country are details and describe a deep connection to and longing for her family, friends and culture and set out the difficulties faced by the COVID19 Pandemic by her family and how that has impacted her.[15]  The Tribunal empathises with the applicant in this regard.  The applicant has not been able to return to her home country since her arrival in late 2019 due the COVID19 Pandemic and associated restrictions.  The Tribunal accepts that the applicant’s community ties to Italy appear to be serving as a significant incentive for her to return.

    [12]See submissions filed 3 May 2021.

    [13]See submissions filed 3 May 2021.

    [14]See submissions filed 3 May 2021.

    [15]See submissions filed 3 May 2021.

17. The applicant is living onshore with her immediate family unit: her partner.  She states she has some friends but supporting her partner is ‘the only reason I wish to remain’.[16]  The Tribunal notes that the applicant has been travelling to and from Australia for over six years now and holds concerns about the ties she may have formed in that time to the Australian community.  However, the Tribunal does not make any firm findings against the applicant in this regard and the material before the Tribunal suggests that any community ties to Australia presenting as a strong incentive for the applicant to remain onshore appear to be outweighed by her desires to travel with her partner to Italy and then Europe upon completion of his study early next year.

    [16]See submissions filed 3 May 2021.

18. The applicant has travelled to: Bali, Thailand, Egypt, Jordan, Malaysia, Mexico, Nicaragua, the United States of America, the United Kingdom, France, Spain and Portugal for holidays and to Guatemala and El Salvador to volunteer.[17]  There is no evidence before the Tribunal that the applicant has had any travel, visa or immigration issues in the past.[18] 

    [17]See submissions filed 3 May 2021.

    [18]See submissions filed 27 April 2021.

19. There is no evidence before the Tribunal that the applicant has any potential military service in Italy or that she has any political or civil unrest concerns in Italy.[19]

    [19]See submissions filed 27 April 2021.

20. In considering whether the applicant meets the genuine temporary entry criterion, the Tribunal has considered the requirements of clause 500.312(a) and all of the applicant’s circumstances, with specific regard to the relevant considerations in the Direction.

21. The Tribunal notes that ‘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’ is also covered by the Direction.  The Tribunal considers it relevant that the Department has obviously found that the primary visa holder, Mr Cocking, is a genuine temporary entrant in granting his student visa.  The Tribunal considers in the context of the evidence before it that the applicant and her partner have joint future plans and that if either one of them intends to remain temporarily or permanently, the other is likely to also hold that intention.  The evidence and material before the Tribunal reflects a unified approach to a joint future.  In such circumstances, it seems to the Tribunal inappropriate to conclude that the applicant’s intention is not to remain temporarily while the primary visa applicant, Mr Cocking, has been found by the Department to be a genuine temporary entrant.  The Tribunal considers this must also be considered when deciding cases of this nature.

22. The Tribunal notes that the applicant has indicated that she and Mr Cocking will depart Australia on completion of his current studies.  Should the applicant or Mr Cocking seek a further temporary visa after March 2022, the evidence given to the contrary in connection with this case will clearly be relevant to any assessment of their true intentions.  

23. Having had regard to the applicant’s circumstances, her immigration history and all other relevant matters, the Tribunal is satisfied that the applicant meets the requirements of clause 500.312 of Schedule 2 to the Regulations.

24. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to reconsider.

    DECISION

25. 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: Clause 500.312(a) of Schedule 2 to the Regulations.

    Member

    T. Quinn

    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.