REYMER DURAND (Migration)

[2019] AATA 1155

REYMER DURAND (Migration) [2019] AATA 1155 (7 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MARCO ANTONIO PERCY REYMER DURAND

CASE NUMBER:  1708096

HOME AFFAIRS REFERENCE(S):           BCC2016/4259984

MEMBER:Mark Bishop

DATE:7 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 07 January 2019 at 3:19pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – does not genuinely intend to stay temporarily in Australia – not enrolled in course for lengthy period – completed multiple VET courses – lack of academic progress – not genuine student – little incentive to return to home country – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.215, 500.218

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 24 March 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 16 December 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 the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a history of the applicant’s immigration, visa and study history in Australia. The decision record contained extracts from the applicant’s PRISMS record.

5. The Tribunal wrote to the applicant on 31 May 2018 requesting information under s.359(2) of the Act in the following terms:

   ·As you applied for this visa on the basis of undertaking a course of study in Australia, it is a requirement for the visa that you are enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.

   ·Accordingly, you are now invited to give, in writing, information about your proposed course(s) of study and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information questionnaire attached with this letter. The information requested should be given by completing the attached questionnaire and returning it to us.

6. The Tribunal advised the information should be provided by 14 June 2018 or the applicant had the right to seek an extension of time. The applicant responded within time.

7. The applicant advised the Tribunal in writing he consented to the Tribunal deciding the review without a hearing.

8. At this point is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

9. In these circumstances, the Tribunal has decided to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department.

10. The applicant did not seek to challenge any of the findings of the delegate.

11. The Tribunal resolved the review application on the papers.

12. For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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)

14. 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?

15. 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.

16. 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.

17. The applicant’s submission and supporting documentation to the Tribunal heavily concentrated on attempting to persuade the Tribunal he was currently enrolled in a course of study. The Tribunal considers this submission at length hereunder.

18. The applicant provided a statement to the Tribunal. It provided as follows:

    ·He came to Australia to study electronic engineering. He found the cost of education in Australia expensive and prohibitive;

    ·He enrolled in Diploma within the VET sector;

    ·He was not enrolled in any course of study from October 2016 until July 2018;

    ·He sought work in Australia and found this difficult because of lack of skills and English language knowledge;

    ·His brother found work and offered to fund his costs in a Bachelor degree;

19. The applicant provided a written response to a Request for Student Visa Information under s.359(2) of the Migration Act. It outlined the following:

    ·He completed various courses in Industrial Electro-Technics, Industrial Wiring and Electronic Engineering at the Catholic University Santa Maria in Peru 1997, 2005 and 2007;

    ·He has been continuously resident in Australia since May 2009 as the holder of five student visas;

    ·He completed courses in Network Security IT in March 2012. He completed courses in Business in October 2012, Interactive Media in August 2014 and Management in 2015 and 2016;

    The Tribunal notes the applicant provided Graduation Certificates for the above courses for study concluded in the period August 2014 until October 2016.

    ·He has been continuously employed as a cleaner, maintenance person, in hospitality and construction from 2009 until 2018;

    ·He enrolled in a Bachelor of Information Technology and Systems in July 2018. This course is scheduled to conclude in May 2020;

    The Tribunal notes this enrolment occurred after the applicant received the request from the Tribunal as outlined in paragraph 18 above. The Tribunal further notes the applicant has not provided any evidence of enrolment in an approved course in the period October 2016 until July 2018. The Tribunal notes the applicant advised in his Statement (Tf: 14 and 29/30) and written response to a Request for Student Visa Information that he was not enrolled in a course of study from October 2016 until July 2018.

    ·He is a citizen of Peru, first arrived in Australia in 1998, returned home in 2016 and has applied for visas (refused) to Spain in the past;

    ·He has been a transit passenger through Chile and Argentina;

    ·His annual living expenses are approximately $19,000 AUD.

20. The applicant provided two copies of letters of offer in a Bachelor of Information Technology and Systems commencing 23 July 2018 at Victoria Institute of Technology (VIT) dated 11 April 2017 (Tf: 13) and 13 June 2018 (Tf: 32). Both letters of offer contained the following statement:

    ·This offer letter does not guarantee your enrolment at VIT. Your enrolment will be only confirmed when a COE (Confirmation of Enrolment) is issued by VIT…[W]e are unable to issue an “Overseas Student Confirmation of Enrolment (COE)” form until such time as fees have been paid…”

21. The applicant did not provide proof of payment of fees for either of the enrolments outlined in paragraph 19 above. The applicant did not provide further proof of enrolment in either of the above courses or any other course. The applicant did not provide a COE in either of the above courses. The applicant did not provide any proof of attendance at either of the above courses. The applicant did not provide any detail or information as to course progress, if any. in either of the above courses.

22. There is no proof before the Tribunal the applicant has a COE in a course of study or is enrolled in a course of study.

23. Clause 500.2 of Schedule 2 to the Migration Regulations relevantly provides that cl.500.211 and cl.500.215 are primary criteria and must be satisfied by at least one member of the family unit. These criteria must be satisfied at the time of the decision.

24. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

25. 'Course of study' is relevantly defined in cl.500.111 of the Regulations as a 'full-time registered course'. 'Registered course' is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

26. The applicant advised he completed various courses as outlined in paragraph 18 above. He advised he had not enrolled in any courses of study in the period October 2016 until July 2018. He provided letters of offer for enrolment in the same course on two occasions as outlined in paragraph 18 above. The Tribunal notes the disclaimer attached to each letter of offer as outlined in paragraph 19 above. The applicant did not provide proof to the Tribunal that he has a COE in a course of study or is currently enrolled in a course of study.

27. There is no proof before the Tribunal the applicant has a COE in a course of study or is enrolled in a course of study.

28. Accordingly, there is no evidence before the Tribunal that the applicant is now enrolled in a course of study. Therefore the Tribunal is not satisfied that at the time of this decision the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

29. In considering whether the applicant meets the genuine temporary entry criterion the Tribunal had regard to the following factors, consistent with clause 500.212 and Ministerial Direction No 69. The factors were used to weigh up the applicant's circumstances as a whole, in reaching a finding about whether they satisfy the genuine temporary entrant criterion.

30. The Tribunal has considered the applicant’s immigration and study history.

31. The applicant was granted an initial Student visa (TU 570) offshore on 8 July 2008 which was valid until 3 May 2009. He subsequently arrived in Australia on 14 August 2008. Since his initial arrival onshore he has held either a Student visa, or associated bridging visa.

32. He completed various VET courses in the period 2014 until 2016 as outlined in paragraph 19 above. He now advises he wishes to undertake a Bachelor degree scheduled to conclude in July 2020 bringing his onshore stay in Australia to more than 12 years.

33. The primary objective of a Student visa holder/international student in Australia must be to study a registered course and progress academically. As outlined above the applicant has only completed courses at the Vocational Education Sector level and has not provided proof of progress (the Tribunal does not consider a “letter of offer” to be academic progress) academically beyond the vocational education sector. The Tribunal finds this lack of progress to be a matter of concern that this is not consistent with the behaviour of a genuine student.

34. In terms of the value of the courses to the applicant’s future, including remuneration and career prospects in Peru, while the Tribunal takes into consideration issues of financial difficulty and latterly offers of financial support from a brother the Tribunal is again concerned by the lack of detail relating to enrolment in a Bachelor of Information Technology and Systems and previous study in Peru and future business or career opportunities in Peru.  

35. The applicant advised of limited and brief absences from Australia since his arrival in 2008. He advised of limited contact with family and friends in Peru He did not advise of title to any assets in Peru. He advised of family living in both Spain and Peru.

36. Based on this limited material the Tribunal assesses the applicant’s incentive to return to Peru as minimal.

37. In his statement in support of satisfying the Genuine Temporary Entrant Requirement (GTE) to the Tribunal (Tf: 10 and Df: 24)), the applicant provided minimal reasons for choosing the proposed courses at Bachelor level. The Tribunal has considered these statements. However, the applicant’s visa and study history indicates that he appear to have enrolled in this new course at Bachelor level for the purposes of securing a further student visa rather than due to a genuine interest in study and overall academic progress.

38. 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).

39. 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.

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

    Mark Bishop
    Member