Soriano Cortes (Migration)

[2024] AATA 1538

Soriano Cortes (Migration) [2024] AATA 1538 (28 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Julian Camilo Soriano Cortes

CASE NUMBER:  2211127

HOME AFFAIRS REFERENCE(S):          BCC2020/2279534

MEMBER:Warren Stooke AM

DATE:28 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 28 May 2024 at 1:38pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – economic or business ties to the home country – applicant changed to Vocational qualifications – current enrolment – plans to start a business – course cancellations – maintaining ongoing residence in Australia – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 359, 363, 499; Direction No 108
Migration Regulations 1994, Schedule 2 cl 500.212; r 1.03

CASES

Hasran v MIAC [2010] FCAFC 40

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 19 July 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 September 2020. 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 (Cth) (the Regulations) because the applicant was unable to demonstrate to the satisfaction of the delegate any economic or business ties to their home country and that the applicant was proposing to undertake a Certificate III in Business, Certificate IV in Business and a Diploma of Leadership and Management in Australia until 8 September 2023. The delegate also found that the applicant had not demonstrated the level of knowledge regarding the study expected of a genuine student, and that this raised serious concerns regarding their genuine intention to study the proposed courses in Australia. Based on the information in their application form, the applicant’s sister currently resides in Australia and the delegate considered that the presence of strong family ties raised concerns regarding the applicant’s incentive to depart Australia and may provide the applicant with an incentive to remain in Australia upon completion of their studies. Further, the applicant had failed to demonstrate how the addition of a Certificate III in Business, Certificate IV in Business and a Diploma of Leadership and Management in Australia will add value to the Bachelor of Law the applicant has already attained. The delegate was not satisfied that the applicant has provided convincing testimony to demonstrate how obtaining further Vocational qualifications will likely result in an increase in remuneration level, provide a competitive edge and improve their immediate career prospects.

4. On 19 January 2024, the Tribunal corresponded with the applicant and invited the applicant to provide the following information:

   “As you applied for the visa on the basis of undertaking a course of study in Australia, it
   is a requirement of the visa for you to be:

   • enrolled in a registered course of study; and

   ·a genuine applicant for entry and stay as a student.”

5. On 8 March 2024, the Tribunal wrote to the review applicant pursuant to s 359A of the Act, and provided the applicant with a copy of the PRISMS record for comment and invited the review applicant to provide documentary evidence that the applicant is enrolled in a course of study with a registered organisation by 22 March 2024.

6. The review applicant did not provide the information requested within the period allowed in the correspondence of 19 January 2024 and 8 March 2024. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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 is a genuine temporary entrant for the purposes of study.

9. The applicant was granted a Bridging Visa A on 10 September 2020 with condition 8105 work limitation that became active on 10 September 2020.

10. The applicant provided evidence of health insurance with nib from 9 June 2019 to 30 September 2020 and with CBHS from 1 October 2020 to 15 August 2023.

11. On 11 September 2020, the applicant provided the Department with a GTE statement, as follows:

    “My name is Julian Camilo Soriano Cortes, I’m a Lawyer and I have
    worked in the field for many years. Through this letter I would like to
    manifest my desire to continue with my professional training in Australia
    since this is a country that counts with an excellent quality of education.
    As a lawyer having a complete management of the English language is
    required in order to be updated with international regulations, besides be
    able to work with international customers. That’s why I took the
    important decision to came to Australia in June of 2018 in order to start
    my English studies and acquire a complete management of the language
    that could give me the opportunity to perform successfully in a
    professional environment.
    After this time in Australia, I could improve a lot my English skills thanks
    to the excellent quality of education and the excellent environment that
    offers Australia that give me the opportunity of practice the language
    inside and outside the classroom. Now I feel more confident to use this
    language in any academic and professional space.
    My dream once I return to my country is to start my law firm, that’s why
    in this opportunity I would like to extend my student visa in order to
    acquire the abilities necessary to start and manage my own business.
    Therefore, I have decided to take a Certificate III and IV in Business, and
    a Diploma of Leadership and Management at Lloyds International
    College.
    Thanks to the certificate I will acquire abilities necessary to perform the
    administrative duties of a business; I will learn how to deliver and
    monitor customer service, to design and produce business documents
    and spreadsheets, to establish networks, promote team effectiveness and
    to implement and monitor WHS policies. In other hand; with the Diploma
    I will be able to develop a lot of managerial abilities, I will learn to manage
    people performance, risks, budgets and financial plans and effective
    workplace relationships.
    Also, in this opportunity I have chosen Lloyds International College to do
    the courses because this is an institution that counts with an excellent
    quality of education, expert trainers with a lot of industry experience and
    an excellent teaching methodology that have a perfect balance between
    theory and practice. In add, I have received excellent references of this
    institution and I know that it will fulfil my learning needs in order to
    obtain the skills that I need to achieve my professional objectives.
    In other hand, I have decided to continue with my studies in Australia
    because during my time in this incredible country I had experience the
    excellent quality that has the different educational institutions. Different
    from my country, here I have the opportunity to complement my
    professional skills and at the same time put in practice all my English
    skills which help me to strengthen my abilities in the language. Also, in
    my country I can’t find updated courses in the field of Business,
    Leadership and Management and many of them are focus on the teaching
    of theorical knowledge and don’t count with practical spaces.
    Once I finish my studies in Australia, I will return to my country with the
    abilities necessary to start my own Law firm. From my point of view this
    experience in Australia will give me the abilities that I require to start a
    successful business, which will increase the quality of life for me and my
    family.
    Finally, my family is an important part of my life, they have been always
    supporting me during this entire project in Australia and I would like to
    share this incredible experience and my professional success once I finish
    my professional studies in this country.
    I would like to thank you in advance for taking my application into consideration and I look forward to a favourable outcome.”

12. The applicant provided the Department with evidence of graduating with a Bachelor of Law from the Universidad Santo Tomas, Columbia and employment as an Independent lawyer from 1 May 2012 to 30 November 2015 and external lawyer with Autopartes de Sur J.R, Columbia, from 2 January 2016 to 30 March 2018.

13. The applicant provided evidence that he had held COEs to undertake the following courses of study:

    a.General English at the Australian Pacific College from 23 July 2018 to 3 May 2019 (Completed)

    b.General English at the Australian Pacific College from 1 July 2019 to 31 July 2020 (Cancelled)

    c.General English at Lloyds International College (052687M) from 28 September 2020 to 04 October 2020 (Completed);

    d.Certificate III in Business at Lloyds International College (086814F) from 02 October 2020 to 09 September 2021 (Completed);

    e.Certificate IV in Business at Lloyds International College (086895M) from 01 October 2021 to 16 June 2022 (Cancelled due to unsatisfactory course progress).

14. The applicant provided evidence of enrolment in a Diploma of Leadership and Management course at Lloyds International College to be undertaken from 8 July 2022 to 15 June 2023, which was rescheduled to be taken to 7 October 2022 to 8 September 2023 and cancelled due to non-commencement of studies.

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

15. 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?

16. In considering whether the applicant satisfies cl 500.212(a), the Tribunal, at the time of decision, must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act.

17. 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

18. 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.

19. 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.

20. The Tribunal has considered the evidence, provided by the applicant, in the context of Direction 108 and finds that the applicant is not a genuine temporary entrant for the following reasons:

    a.The applicant has demonstrated engagement in study from 23 July 2018 to 9 September 2021 where courses in English and a Certificate III in Business were completed and since this period the applicant has had enrolments cancelled on the basis of unsatisfactory course progress or non-commencement in studies that included a Certificate IV in Business and a Diploma of Leadership and Management. As such, the Tribunal finds that the applicant has remained onshore for almost 3 years without completing any further course of study and is not satisfied that the applicant is a genuine entrant for the purposes of study and remained onshore to maintain residency and a lifestyle;

    b.The applicant has not provided adequate evidence as to how a VET level Certificate III in Business will enhance the applicant’s future career prospects as a lawyer in the applicant’s home country. As such, the Tribunal finds that the applicant has engaged in low cost VET courses to maintain residency and lifestyle;

    c.The applicant stated in his GTE statement that he intends to set up his own law firm in Columbia using the business learnings acquired in Australia, however, the unsatisfactory progress with the Certificate IV course and the non-commencement of the Diploma of Leadership and Management course, in the absence of a detailed business plan, suggests that the applicant’s intention is to maintain residency and lifestyle beyond that of a temporary resident, after 6 years of residency on temporary visas;

    d.Overall, the lack of academic progress, together with the longevity of residency provides significant concern to the Tribunal that the applicant has maintained residency for undisclosed reasons that do no lead to a convincing reason for maintaining residency, other than maintaining a lifestyle and potentially some other undisclosed reason.

21. In the absence of a response to correspondence from the Tribunal of 19 January 2024 and 8 March 2024, the Tribunal is not aware of any circumstances that would preclude the applicant from returning to his home country of Columbia and the applicant has stated in his GTE statement a desire to share his experience with his family upon return to Columbia.

22. The Tribunal gives weight to the lack of academic participation and the discontinuation of studies when the stated purpose was to remain in Australia for the purposes of academic study. The applicant has exhibited in almost 3 years, without study completion or the participation that the applicant is not a genuine temporary entrant for the purposes of study.

23. Further, there is no evidence before the Tribunal that would suggest that the applicant has any reason not to return to Columbia and that the applicant has developed a desire to remain in Australia for the purposes of potential access to earnings, residency and lifestyle.

24. Based on what is evidenced of the applicant’s circumstances overall, in the absence of any other relevant information, including the applicant’s immigration and study history, the applicant’s circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 108, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay, as a student. As such, the Tribunal is not satisfied that after a period of almost 6 years in Australia on temporary visas, that the applicant intends to genuinely stay in Australia temporarily, as a student, having regard to the evidence advanced and considered cumulatively above. In this regard, the Tribunal is satisfied that the applicant is using the Study visa stream to potentially access earnings, and to maintain residency and lifestyle without participation in study, at the time of decision.

25. 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).

26. Accordingly, the Tribunal is not satisfied that the applicant is a genuine temporary applicant for entry and stay as a student, as required by cl.500.212.

27. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Warren Stooke AM
    Member

    Attachment – Direction No.108

    DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 21 March 2024

    Clare O’Neil
    Minister for Home Affairs and Minister for Cyber Security

    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 - Preliminary

    Name of Direction

    This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 108.

    Commencement

    This Direction commences on 23 March 2024.

    Revocation

    Direction No. 69, given under section 499 of the Act, is revoked.

    Interpretation

    Act means the Migration Act 1958.

    Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.

    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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).

    This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.

    This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.

    Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    Preamble

    The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 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;

    d) whether 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.

    iii. b. Previous travels to Australia or other countries, including:

    iv. 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;

    v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    vi. 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

    vii. 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 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.