Tho (Migration)

[2020] AATA 4347

Tho (Migration) [2020] AATA 4347 (19 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Naroeurn Tho

CASE NUMBER:  1919983

HOME AFFAIRS REFERENCE(S):          BCC2019/2374114

MEMBER:Amanda Upton

DATE OF ORAL DECISION:  19 August 2020

DATE OF WRITTEN STATEMENT:         19 August 2020

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations.

Statement made on 19 August 2020 at 2:15pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, 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 4 July 2019 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 3 May 2019. 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 (the Regulations) because they did not consider the applicant to be a genuine temporary entrant for entry and stay in Australia as a student

4.      The Tribunal gave its decision on the review at the conclusion of the hearing held on 19 August 2020. The following are the reasons for that decision.

5.      The applicant appeared before the Tribunal on 19 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. The applicant was assisted in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 entry and stay in Australia as a student.

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

8. 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?

9. 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.

10.       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.

Entry and Visa History

11.       The applicant in this case is a Cambodian woman who first arrived in Australia on 7 April 2019 (just over a year ago) on a visitor visa to visit her father and sister. She applied for her student visa whilst onshore.

12.       The applicant has travelled extensively internationally.

Time Onshore

13.       The applicant has not returned home since her arrival in Australia.

Study History

14.       Prior to arriving in Australia, the applicant had obtained qualifications in Banking and Finance. She had previous work experience as an internal audit officer and as a teacher and library assistant. She told the Tribunal that she no longer wished to pursue this career as after working for a number of years she did not enjoy it and found it to be boring.

15.       Since arriving in Australia the applicant has completed;

·     Two English courses

·     Certificate in Aged Care and Disability Services

16.       The applicant is currently enrolled in a Diploma of Community Services that is scheduled for completion in November 2021.

Evidence in Support of Application

17.       In support of their application, the applicant has provided;

·     Response to s359(2) request made by the Tribunal

·     Current confirmation of Enrolment

·     Previous academic certificates

·     Evidence of property ownership in Cambodia and rental agreement for current tenant

·     GTE statement

·     Cambodian identity documents and confirmation of previous employment

18.       The Tribunal has considered these documents and the evidence given by the applicant in reaching its decision.

Applicant’s circumstances in their home country

19.       The Tribunal has had regard to the applicant’s circumstances in Cambodia as follows;

Reasons for not studying in home country

·The applicant considers that there are no courses available in aged care and community services in Cambodia.

Personal ties to home country

·The applicant has three sisters living in Cambodia, they have their own families, she is in regular contact with them. She has another sister and her father living in Australia.

·The applicant also keeps in contact with her extended family who live in Cambodia.

·The applicant is very active in charity and volunteer work both in Australia and Cambodia.

·The applicant is the owner of a property in Cambodia, it is currently rented to a tenant.

·The applicant has not returned home since her arrival in Australia.

Economic Circumstances in Australia as incentive not to return home

·The applicant has worked as a volunteer in Cambodia with aged people with mental conditions and finance problems. She has worked with organisations such as the Later Day Saint’s Organisation.

·She has been doing volunteer work with a Cambodian Group that is affiliated with the Southern Migration and Refugee Centre.

Military service or civil/political unrest concerns in home country

·The applicant raises no such concerns.

20.       The Tribunal considers that the applicant has family and community ties in Cambodia that may constitute an incentive to return although when balanced against those she has in Australia does not consider them to be significant.

Applicant’s potential circumstances in Australia

21.       The Tribunal has had regard to the applicant’s potential circumstances in Australia, based on the evidence provided at the hearing, as follows;

Applicant’s ties with Australia

·The applicant has her father and sister in Australia. They are permanent residents. The applicant’s father has been unwell and the applicant assists in looking after him as he needs a lot of support for his daily life. This is also a reason for her choosing to study aged care.

·The applicant’s father has lived in Australia since 2016, he is a permanent resident. The applicant’s sister also lives with her father in Australia, she is 27 years old.

Evidence visa program being used to circumvent the migration program

·The applicant’s courses are at vocational level and are consistent with each other

·The current courses are at a lower level than her previously obtained academic qualifications and of a different subject matter.

Applicant’s knowledge of living in Australia, their intended course and level of research into their intended course.

·The applicant’s original intention was to study English and on completion decided to study in Aged Care and Disability as it is an interest that she has.

·She has enrolled in the Diploma of community Services due to her desire to pursue further skills in this area. She considers the course will assist her to provide care and support to others.

·The applicant would like to then teach these skills to others in Cambodia

22.       The Tribunal considers that the applicant has significant family ties in Australia that may present as a disincentive to return to her home country although balances these against her ties to Cambodia and considers them on balance to be relatively equal.

23.       The Tribunal accepts that from time to time people will change a study pathway due to a genuine change in a career course or a desire to re-educate. The Tribunal finds on the basis of the information given to the Tribunal and the evidence given by the applicant, that in the circumstances the applicant’s change is genuine. The Tribunal considers that the applicant has demonstrated how this change in pathway will be beneficial in the future and considers that her desire to study is genuine and consistent with her interests.

Value of the course to the applicant’s future

24.       The Tribunal has had regard to the value of the course/s of study to the applicant’s future as follows;

Is the course consistent with the applicant’s current level of education?

·The applicant has previously completed studies of a different subject matter and at a higher level.

Will the course assist the applicant to obtain employment or improve employment prospects?

·The applicant originally came to Australia to learn English however has developed an interest in the aged care and community sector due to her father’s regressive illness.

·The Cambodian government is working together with the Japanese government on a project to set up nursing homes for senior people in Cambodia. The applicant considers therefore, having an opportunity to study in aged care and disability service will provide her with a lot of potential in getting job as it is a growing field.

·The applicant will look for an active role in the sector that provides services in relation to community services, nursing, home/aged care assistance.

·She originally chose the course as her father has a regressive condition and because she would like to provide care to the aged people.

·After completion of study she will return to Cambodia where there are a number of non-profit organisations that provide services to people.

Relevance of course to past study?

·The applicant has previously completed higher level studies in a different subject area

Expected remuneration using qualifications in home country compared to what is receivable in Australia?

·The applicant considers that she will be able to get a well-paid job in the aged care sector as it is in demand in Cambodia

25.       The Tribunal is satisfied that the applicant has experienced a genuine desire to change her study pathway prompted by the illness of her father. The Tribunal considered her evidence in relation to this to be genuine and credible. The Tribunal accepts that the applicant genuinely wishes to pursue the career as she has stated and that study in Australia in the area will be of value to her.

26.       The Tribunal considers that the applicant’s change in study pathway is consistent with her previous and current strong history of volunteer and community service. The Tribunal considers that this is an indication that the applicant is a genuine student.

Immigration History

27.       The Tribunal has had regard to the applicant’s immigration history. The applicant had a visitor visa refused in March 2018. The applicant told the Tribunal that this was because she had not provided enough documents after applying online herself. The Tribunal makes no adverse findings in relation to this.

28.       The Tribunal is troubled by the fact that the applicant arrived in Australia on a visitor visa and then changed her immigration intentions whilst onshore by applying for a student visa. The applicant told the Tribunal that after staying in Australia and her father getting more ill, she developed an interest in aged care which has prompted her decision to study. The Tribunal accepts the applicant’s explanation for this change in intention and considers her evidence to this fact to be genuine and credible.

Any other relevant matters

29.       There is no evidence before the Tribunal regarding the following factors indicated by Direction 69:

·Any other relevant information provided by the applicant that may be either beneficial or unfavourable to the applicant.

30. 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).

31. 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.

32.       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

33.       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.

Amanda Upton
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

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.

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.