Serrano (Migration)

[2020] AATA 3595

Serrano (Migration) [2020] AATA 3595 (31 July 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Alexander Serrano

CASE NUMBER:  1825833

HOME AFFAIRS REFERENCE(S):          BCC2018/2616884

MEMBER:  Frank Russo

DATE AND TIME OF

ORAL DECISION:  31 July 2020 at 4:25 pm (EDST)

DATE OF WRITTEN RECORD:                31 July 2020

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 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 31 July 2020 at 6:31pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – reasons for delay in completing qualification – course progress – value of course – employment plans – personal ties – immigration history – 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 Home Affairs on 23 August 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 12 July 2018. 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.

1. 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 was a genuine applicant for entry and stay as a student. In other words, the delegate was not satisfied that the applicant is a genuine temporary entrant.

1. The Tribunal gave its decision on the review at the conclusion of the hearing held on 31 July 2020. The following are the reasons for that decision.

1. The applicant is a 26-year-old French national. The Student visa application currently under review was made in respect of the applicant’s enrolment in a Bachelor of Business (Hospitality & Management), which at the time of the hearing the applicant had one unit left to complete and is due to complete by 24 October 2020.

1. The applicant appeared before the Tribunal on 31 July 2020 to give evidence and present arguments.

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

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

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 the applicant is a genuine temporary applicant for entry and stay as a student.

Genuine applicant for entry and stay as a student (cl.500.212)

1. 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.

1. 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.

1. The applicant is a 26-year-old French national, who first arrived in Australia holding a Student visa on 15 April 2015. At the time of the grant of that visa, the applicant was enrolled to undertake a Bachelor of Business (Hospitality & Tourism Management). The applicant gave evidence at the hearing that he subsequently held a Working Holiday visa for approximately six months, followed by a second Student visa.

1. The applicant applied for the Student visa currently under review in order to complete his enrolment in the Bachelor of Business (Hospitality & Tourism Management).

1. The applicant gave evidence that he has a Baccaulaureate in Hotel Service which he completed in his final year of high school in France in 2012, but confirmed at the hearing that the qualification is not recognised outside of France, given it is not a tertiary qualification. He completed two years of a Bachelor of Business Administration in Hotel Management at Stanford University in Thailand from 2012 to 2013. He stated that Stanford University is allied to Blue Mountains International Hotel Management School in Australia, which is one of the reasons why he chose to study at Stanford University.

1. According to information provided with his Student visa application, the applicant originally started the Bachelor of Business at Blue Mountains International Hotel Management School, however struggled being away from his home country, with no emotional family support or

friends. He therefore transferred to William Blue College of Hospitality Management where he obtained recognition for prior learning for 8 units and commenced there in February 2016. At William Blue College he completed 11 units, but the school ceased his enrolment due to poor academic performance.

1. The applicant subsequently appealed the college’s decision to cancel his enrolment, and whilst under appeal he completed 3 more units, therefore leading to meeting 22 of the 24 units required to graduate, or 92% of the course. However, in light of his academic performance, William Blue College was not willing to re-admit him to complete the remaining 2 units.

1. The applicant therefore transferred to Kaplan Business School to complete the qualification. Kaplan Business School only allowed the applicant to transfer 10 credits for the course, and the applicant therefore had to complete 14 units in total at Kaplan Business School in order to obtain the qualification.

1. The applicant gave consistent testimony at the hearing, stating that there were several reasons why he has taken approximately five years to complete his Bachelor degree studies rather than the standard three years. This included his transfers between colleges and gaining recognition of prior learning for only certain completed units. The applicant also gave evidence of a health condition which contributed to the delay.

1. Almost two years have elapsed since the applicant made his application for the review and the applicant’s matter coming before the Tribunal for hearing. The applicant stated that at the time of the hearing he had one unit to complete and he is on schedule to complete the Bachelor of Business (Hospitality & Tourism Management) on 24 October 2020.

1. The applicant has provided a transcript of results from Kaplan Business College, which shows that he has completed all subjects, although it indicates that he has failed three units. The Tribunal questioned the applicant about these units, and he confirmed that he has repeated two of these units and has one left to complete, subject to receiving successful results for the semester he has just completed.

1. The Tribunal is satisfied as to the value of the course to the applicant’s future. The applicant has been studying Hospitality Management courses in Thailand and Australia since 2013, but has yet to complete a Bachelor level qualification. In his statutory declaration the applicant gave evidence of the value of a Bachelor qualification in working internationally in the hospitality management field. At the hearing the applicant gave evidence that he aspires to working at a senior management level within the hospitality industry, and in order to obtain the level of positions that he desires, he needs to have a Bachelor level degree. The applicant gave evidence of his father’s involvement in the hotel industry in Australia and overseas, including his lengthy management career with Accor Hotels, in addition to other senior roles in the hospitality industry, including his current role which involves assisting in the buying and selling of hotels. The applicant stated that he intends to obtain assistance from his father in applying for management roles within the hospitality industry.

1. The Tribunal finds that the course of study is relevant to the applicant’s proposed employment plans and is consistent with his existing level of education. The Tribunal accepts that the applicant would be able to obtain a broader range of positions on the hospitality management industry, and therefore also a higher remuneration, with a Bachelor level qualification. The Tribunal also accepts that while the applicant has worked in a variety of roles in the hospitality industry since 2012, both in France and Australia, a qualification in Hospitality may assist him in applying for roles with greater levels of responsibility.

1. The applicant provided evidence as to the reasons why he has chosen to study in Australia following his studies in Thailand. The applicant has provided similar reasons on his statutory declaration, and the Tribunal is satisfied that the applicant has reasonable reasons for undertaking the study in Australia rather than in his home country or a third country.

1. As to his personal ties, the applicant gave evidence that his immediate family members live in France, Spain and England. In his statutory declaration the applicant stated that he does not have strong ties to one place, and gave as background his history of being born in Thailand and then growing up in various countries. The applicant stated that his father currently lives and works in Spain, although he has an apartment in Thailand. The applicant has no property of his own, although his parents each have an apartment (his mother’s is in France). The applicant has not demonstrated particularly strong ties to France or to any one country, and the Tribunal has taken this into account in assessing his circumstances as a whole. The Tribunal has however also had regard to the applicant’s evidence that his intentions are to develop an international career in hospitality, similar to that which his father has attained, and that his intention following the completion of his current studies is to return briefly to France and then look at what opportunities are available internationally. As noted above, he gave evidence of his father’s connections within the hospitality sector internationally, which the applicant intends to make use of in finding opportunities in the future.

1. The applicant confirmed at the hearing that he has no relatives in Australia and is not in a relationship. The Tribunal is satisfied that the applicant does not have strong personal ties to Australia.

1. The applicant has worked in Australia as a waiter since 2015. He worked as a waiter and in other positions in hospitality in France from 2013 to 2014, where he earned a similar salary to that which he currently earns in Australia. The applicant has provided evidence of his father’s financial support for his studies in Australia. The Tribunal finds that there is no evidence of any economic incentives for the applicant to remain in Australia following the completion of his studies.

1. The applicant’s immigration history refers to both his travel and visa history. The applicant first arrived in Australia on 15 April 2015 holding a Student visa, which was valid until October 2015. He held a Working Holiday visa from October 2015 to April 2016. He held his second Student visa from April 2016 to August 2018. The current visa application, made on 12 July 2018, was in respect of the applicant’s continued enrolment in the Bachelor of Business (Hospitality & Management), and for the purpose of completing this qualification which the applicant had commenced in 2015. The applicant is currently scheduled to complete this Bachelor degree by 24 October 2020 and has one unit left to complete.

1. There no indication that the applicant has not complied with any conditions of his visas. The applicant has not sought to enrol in additional courses to extend his stay in Australia and has maintained a consistent study pathway. He has not enrolled in additional courses to maintain his stay in Australia, and has given a reasonable explanation for the delay in completing his course of study.

1. While the applicant has now taken over five years to complete the Bachelor degree for which he made his initial Student visa application, the Tribunal notes that the applicant has made significant progress in completing this course, and has only one unit left to complete. While the applicant gave evidence of the difficulties he experienced in his studies, the applicant has made progress in completing his studies, in a manner consistent with that of a genuine student. The Tribunal considers that the applicant is on track to complete the Bachelor of Business degree and then return to his home country, after which he will look for

international opportunities within the hospitality industry. Overall, the Tribunal has no concerns regarding the applicant’s immigration history.

1. There is no evidence of any civil or political unrest or of any military service commitments that would act as an incentive for the applicant to remain in Australia. There is nothing to suggest that the applicant has entered into a relationship of concern. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in France, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

1. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.

1. Having had regard to the applicant's circumstances, his immigration history, the value of his course of study to his future and all other relevant matters, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant meets clause 500.212(a) of Schedule 2 to the Regulations.

1. 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.

Frank Russo 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.

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

1. 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.