San Miguel (Migration)

[2018] AATA 179

San Miguel (Migration) [2018] AATA 179 (8 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Rebekah Louise Saulog San Miguel

CASE NUMBER:  1606299

DIBP REFERENCE(S):  BCC2016/438663

MEMBER:Lilly Mojsin

DATE:8 February 2018

PLACE OF DECISION:  Sydney

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 572 Vocational Education and Training Sector visa:

·cl.573.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 08 February 2018 at 4:27pm

CATCHWORDS

Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector visa – Completed Christian mission and leadership courses in Australia – Volunteered in Australia – Financially supported by the church – Further studies consistent with work plans

LEGISLATION
Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 1 Item 1222 Schedule 2 cl.573.223

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 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 to the Department of Immigration for the visa on 29 January 2016.

3. The delegate decided to refuse to grant the visa on 26 April 2016.

4. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

5. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.223(1)(a) of Schedule 2 to the Regulations because the applicant was not a genuine temporary student. .

6. The applicant appeared before the Tribunal on 29 November 2017 to give evidence and present arguments.

7. The applicant was represented in relation to the review by her registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. At the Tribunal hearing the applicant stated that she has finished a university course in Manila. She worked in Bahrain after she finished university. She came to Australia in 2012 to train.

9. The applicant has advised the Tribunal that she finished a course in Bahrain in computer science in 2005. She worked as a data controller, logistics officer and inventory controller in Bahrain. She came to Australia in 2012, in order to train as a missionary with Institute of the Nations. She studied Certificate 3 in Discipleship and then Music and a Bible course. As part of the course they were required to go on a field assignment in 2012 to India and then London.  She studied these courses because she wanted to train how to reach out to other people and develop in her faith.

10. She has a sister in Australia. She is not married and no children. She is not in a relationship. After finishing bible studies she studied a Certificate IV in Christian Mission in Leadership Skills. She then studied a Diploma of Leadership and Management. The advanced course is Advanced Diploma in Business. 

11. She is studying the courses to establish a café business/ ministry in the Philippines. When asked why she has enrolled in Bachelor of Counselling she said it is a vision. There is a difficulty with government and people do not have a place to get counselling. So many people are affected. Her mother, in Bahrain, had a hip replacement and everybody in family is in Bahrain. 

12. She has not been working in Australia, but volunteering. Her family members have been supporting her. She has her church. The church in Bahrain who financially support. It is the National Evangelical Church English Congregation. They are not supporting her for a Bachelor Counselling. There is not the same church in Perth but she is with the Subiaco Church of Christ.

13. She proposes to return to Philippines in the next couple of years. Her parents are in Bahrain and she hopes to go to the Philippines when they come. Her parents will be in Bahrain for the next one or 2 years.  She intends to return to northern Philippines Manila.

14. It was put that she has been studying a number of courses for 5 years and proposes to study for another 2 years and will have been studying for 7 years. She responded that it is very unfortunate. She cannot study in Bahrain as they do not have courses in the Philippines or Bahrain.

15. In regard to the bank statements provided she stated they are her sister’s account as she is supporting her for her fees and living costs. She has paid $14000 towards her course fees. The course fees are $86550.

    REASONS AND FINDINGS

16. Having regard to the applicant’s current proposed course of study, a Bachelor of Counselling commencing on 26 February 2018 and ending on 31 December 2020, the relevant subclass in this application is Subclass 573.

17. The issue in the present application is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that 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)     …

18. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

19. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

20. The applicant has been studying a number of courses in Australia since her arrival. The applicant has a sister in Australia and the Tribunal finds that this is an incentive for her not to return to Philippines or Bahrain.

21. Weighing up the applicant’s circumstances, the Tribunal places more weight on the following:

    • The applicant is commencing her study, a Bachelor of Counselling at Edith Cowan University.

    ·The applicant has expended considerable monies to study her course. Her tuition fees are $86 550 and she has paid $14 425 toward course fees.

    • The Tribunal is satisfied that the applicant’s studies in Australia are relevant to her future career in counselling and running her own café
    • The applicant’s parents are in Bahrain, she is single and she is supported by her sister in Australia.  
    • There is no evidence before the Tribunal to suggest that the applicant has breached immigration laws.

22. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal finds on balance it is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.572.223(1)(a).

    DECISION

23. 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 573 Higher Education Sector visa:

    ·cl.573.223(1)(a) of Schedule 2 to the Regulations.

    Lilly Mojsin
    Member