Roux (Migration)

[2019] AATA 2649

Roux (Migration) [2019] AATA 2649 (27 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raphael Francois Philippe Michel Roux

CASE NUMBER:  1731280

HOME AFFAIRS REFERENCE(S):           BCC2017/3334108

MEMBER:Damian Creedon

DATE:27 May 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(a) of Schedule 2 to the Regulations.

Statement made on 27 May 2019 at 3:53pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – credible witness – reasons for not studying in France – world-renowned for its culinary schools – specialisation in Asian cuisine – detailed business plan – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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 1 December 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 13 September 2017. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

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 whether the applicant satisfies cl.500.212(a).

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, 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.

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.

Overview of evidence

1. The applicant is a 34-year-old French national who has travelled to Australia a number of times on tourist and working holiday visas.  The present application is his first for a student visa.

2. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

3. The Tribunal also had before it a number of documents provided by the applicant.  Save as required for the purposes of this decision it is unnecessary to list these documents in detail.  Relevant documents will be referred to as required.

4. The applicant’s Provider Registration and International Student Management System (PRISMS) record shows that since the date of his current visa application (13 September 2017) he has successfully completed the following course:

Course Name	Date Commenced	Date Completed
Certificate III in Asian Cookery	29/01/2018	07/12/2018

1. PRISMS also records that the applicant is presently studying for a Certificate IV in Asian Cookery (04/02/2019 – 05/07/2019) and has enrolled to undertake a Diploma of Hospitality Management (22/07/2019 – 13/12/2019).

2. The applicant appeared before the Tribunal on 24 May 2019 to give evidence and present arguments.  Where relevant, the applicant’s evidence to the Tribunal is referred to in its analysis below.

3. The applicant was assisted in relation to the review by his registered migration agent.

4. At the hearing, the Tribunal discussed with the applicant his written submissions in support of his application.  In summary the applicant provided the following information, as clarified at the hearing:

   1. The applicant was born and raised in a small town in southern France called Uzès.  He grew up with his two sisters in a household that was “managed by his musician father”.  His mother owns a business but is semi-retired now. His sisters live and work in Paris.
   2. He has a love for travel and describes it as a “way of life” for him.  He first began travelling with his parents who he describes as “avid travellers”.
   3. Since obtaining his high school “baccalaureate” in France in 2006 he has undertaken a variety of jobs from “a labourer in the vineyards to retail employee to professional snowboarder”. 
   4. Although he “thought that he would never want to settle for something or be tied down” he has in recent times come to want to have a place “he can call home”.
   5. He was first introduced to Asian cuisine during a trip to Indonesia. His experience with Asian cuisine prior to this was, he stated, “surprising limited”.  However during on his trip to Bali he “was extremely impressed with the assortment in Asian cuisine he was introduced to”.
   6. Being French he grew up with an appreciation for the culinary arts and an enjoyment for cooking, and he found in Asian cuisine an interest which he felt might be the catalyst for a career and business opportunity in France.  Once qualified in Asian cuisine he plans to establish an Asian restaurant in his home town of Uzès.
   7. He believes that he parents’ experience and his own “communication and organisation skills” will enable him to succeed, but he considers that be still needs to learn the “back end” as a restaurateur and “front of house” skills for his business to be successful.

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

Analysis and findings

1. The Tribunal found the applicant to be a credible and truthful witness who, where possible, supported his oral statements with documentary evidence.  The Tribunal found the applicant’s oral evidence to be consistent throughout and in giving his evidence he did not convey an impression of concoction or recent invention.

2. The Tribunal discussed with the applicant his study plans.  The Tribunal put to the applicant the proposition that his home country, France, was world-renowned for its culinary schools; given this, it was of concern to the Tribunal that he would choose to study cookery in Australia.  The applicant agreed with the Tribunal’s proposition and stated that, before commencing his studies, he had conducted “an assessment” of various institutes in France but had not found any courses there specialising in Asian cuisine.  He therefore began searching further abroad.  His evidence was that he had travelled to Australia “a few times” as a tourist and on a working holiday visa and had found it “safe, clean, friendly, multicultural and cosmopolitan”.  He stated that he found the types of courses he was looking for here with the added bonus that it was geographically close to Asia for him to visit to obtain first-hand experience as required.  When pressed by the Tribunal as to why he did not choose to study in an Asian country, he stated that he had considered this but felt that the language barrier would be too great for him which, when combined with Australia’s education reputation, its proximity to Asia and his positive previous experiences here, made Australia an obvious choice for him.  The Tribunal found the applicant’s explanation on this issue reasonable and persuasive.  The Tribunal also put to the applicant the proposition that, although his reasoning clearly applied to the Asian cookery classes, it was less clear why he would choose to study a Diploma of Hospitality Management here, particularly as this was a highly developed profession in France.  In response the applicant stated that, while this was true, the hospitality management courses offered in France were at a level which he did not require; he gave the example of “Michelin starred” restaurants and 5-star hotels.  He stated that this type of restaurant and training was not his goal; he stated that he envisions a more “smart casual” dining establishment rather than “high cuisine”.  Again, the Tribunal found the applicant’s evidence on this issue reasonable and persuasive. 

3. The Tribunal discussed with the applicant his financial position and work experience in Australia.  The applicant agreed with the Tribunal’s proposition, based on documentary evidence supplied by the applicant, that he has independent financial means sufficient to support his education and living expenses in Australia.  The applicant provided the Tribunal with documents evidencing substantial moveable and immovable assets in his name in France, including shares and real property.  He states that he does not presently work in Australia, but that, if successful in the present application, he wishes to work in accordance with his visa conditions to gain experience relevant to his study and business plans.  None of the applicant’s evidence in respect of his financial position and work experience raised concerns for the Tribunal that he is seeking to establish a career here.

4. The Tribunal also found the applicant’s evidence in relation to his future career plans persuasive.  When asked about his proposed restaurant in France, the applicant was able to provide the Tribunal with a reasonably detailed business plan consistent with his evidence.  The applicant confirmed, when pressed by the Tribunal, that his parents and family were prepared to invest in his venture and that he also intended to draw upon their business experience and the experience of his own friends who are themselves successful restaurateurs.  The Tribunal accepts this evidence.

5. There is no evidence before the Tribunal that the applicant has entered into any relationship of concern or that he has significant ties to Australia other than his commitment to his studies. 

6. There is also no evidence of any military service or civil or political incidents that would act as a clear incentive for the applicant to remain in Australia. There is no evidence that the applicant, or a relative of the applicant, has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation.  The applicant’s immigration history does not raise concerns for the Tribunal. 

7. The Tribunal has had the benefit of speaking to the applicant which has enabled it to obtain more information regarding their circumstances and genuineness in the presentation of their evidence.  The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has previously completed the courses claimed in Australia, has said they will return home on completion of his studies, has strong family ties to his home country and all the other matters he has raised.

8. Overall the Tribunal is persuaded that the applicant’s choice to study Asian cookery in Australia is reasonable and that he is motivated to do so by the prospect of opening his own Asian cuisine based restaurant in his home country.  From the documentary evidence supplied by the applicant the Tribunal is satisfied that has sufficient independent means to support his study and living expenses in Australia.  Accordingly the Tribunal is persuaded that the student visa programme is not being used by the applicant to circumvent the intentions of the migration programme.  For the reasons outlined above the Tribunal accepts that the applicant is undertaking his current study and future study for the reasons he claims.

9. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. It follows that the applicant meets cl.500.212(a).

10. 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.

11. 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(a) of Schedule 2 to the Regulations.

Damian Creedon

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.

1. 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

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. 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

1. 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.

2. 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

1. 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

1. 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

1. An applicant’s immigration history refers both to their visa and travel history.

2. 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

1. 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

1. 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.