TALPLACIDO (Migration)

[2018] AATA 2427

TALPLACIDO (Migration) [2018] AATA 2427 (20 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ma Cristina TALPLACIDO
Mr Albert TALPLACIDO

CASE NUMBER:  1703097

HOME AFFAIRS REFERENCE(S):           BCC2016/3922895

MEMBER:Wendy Banfield

DATE:20 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations

·cl.500.311 of Schedule 2 to the Regulations

Statement made on 20 June 2018 at 1:50pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 500 (Student) – Genuine temporary entrant criteria – Comply with conditions – Maintained enrolment and attendance – Gained advanced credit for Bachelor’s degree – Incentives to return to home country – Children live with extended family – Business in the Philippines – Credible witness – Member of Family Unit – Secondary visa applicant
Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), r 1.12 Schedule 2 cls 500.212, 500.311, 500.611

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 13 February 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 22 November 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 it was determined the genuine temporary entrant criteria were not met in the applicant’s case.

   Background

4. The applicant is a citizen of the Philippines and is currently 47 years old. The secondary applicant is her husband who is 54. They have two children who continue to live with extended family in the Philippines. The primary applicant came to Australia on 3 April 2011 with the intention of studying Accounting. In the Philippines the applicant had obtained a Bachelor degree in Economics. The parties had operated a hardware business prior to coming to Australia.

5. Since arriving in Australia the primary applicant has completed a Diploma and Advanced Diploma of Accounting, Certificate IV in Business Administration and a Diploma and Advanced Diploma of Marketing. The applicant is now enrolled in a Bachelor of Accounting which is scheduled to be completed on 3 May 2019.

6. The applicants appeared before the Tribunal on 23 April 2018 to give evidence and present arguments.

7. The applicants were assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 applicant for entry and stay as a student in accordance with cl.500.212.

10. 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?

11. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

12. 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.

13. The applicant provided evidence prior to the Tribunal hearing and attended in person to present arguments and make submissions in the case. The applicant explained that she had originally enrolled to study a Graduate Diploma in Professional Accounting commencing on 14 March 2011, however; her student visa was not granted until 1 April 2011 and the applicant only arrived in Australia on 3 April 2011. By then she had missed classes and after failing to catch up, she decided to study a package of courses leading to a Bachelor degree. The applicant claimed that enrolment cancellations on her record were largely due to courses being cancelled or curriculum changes by the college rather than failure on her part.

14. The applicant submitted she has had no gaps in study, has completed her courses and achieved good results in most subjects. Regarding her future plans, the applicant said she still has a business in the Philippines which is being run by other family members. She said she plans to continue with that business as well as pursue work as a tax consultant. The applicant’s ongoing connections to her home country are her children and extended family, property and business links for which documentary evidence was provided and plans to apply her knowledge gained in Australia.

15. The Tribunal accepts the applicant provided credible evidence in support of her application and although she has spent a considerable amount of time in Australia, she has progressed logically and has continued studying despite her visa being refused. The Tribunal considers the applicant should be permitted to complete her current Bachelor course.

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

    Does the applicant intend to comply with visa conditions?

17. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

18. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8535 (limited visa entitlement), 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

19. According to the Department’s decision record the applicant breached a condition of her original student visa by not maintaining eligibility at the higher education level. The applicant has explained her situation and has since progressed in her studies. The Tribunal has no other evidence to suggest the applicant does not intend to comply with visa conditions in future. She has maintained enrolment and attendance and has progressed in her studies. In addition, the applicant has declared in her written statement and in oral evidence that she wishes to finish her current course and will then return to the Philippines.

20. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

21. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

22. In making this decision the Tribunal has taken into account the fact that the applicant has been granted credit for some subjects in her Bachelor of Accounting and has so far achieved high grades in the units she has completed. These results, together with the courses she has completed so far suggest the applicant has the capacity to complete the course successfully.

23. 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.

24. 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.

    Member of Family Unit – Secondary visa applicant

25. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria. Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

26. As the Tribunal accepts that the first named visa applicant satisfies the primary criteria, the secondary applicant meets the criteria because they are a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.500.212.

    DECISION

27. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations

    ·cl.500.311 of Schedule 2 to the Regulations.

    Wendy Banfield
    Member