TOPALLI (Migration)

[2020] AATA 2017

TOPALLI (Migration) [2020] AATA 2017 (9 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs DJANA TOPALLI
Mr GJERGJ TOPALLI
Miss GIORGIA TOPALLI
Miss ANISSA TOPALLI

CASE NUMBER:  1816867

HOME AFFAIRS REFERENCE(S):          BCC2018/1551111

MEMBER:Steven Griffiths

DATE:9 June 2020

PLACE OF DECISION:  Adelaide

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

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 9 June 2020 at 4:54pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – reasons for studying in Australia – value of course – career options – 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 5 June 2018 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 5 April 2018. 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).

4. The applicants were assisted by their registered migration agent.

5. On 4 May 2020 the Tribunal wrote to the applicants pursuant to s.359(2) of the Act, inviting the applicant to provide all relevant information about the course(s) of study she is undertaking and her entry and stay in Australia as a student in writing. The invitation was sent to the applicant by their registered migration agent, Mr. Felipe Serra-Esteva, of Adelaide Migration Services, via email [email protected] and advised that, if the information was not provided in writing by 18 May 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The Tribunal notes the receipt on 6 May 2020 of the Withdrawal of dependent applicant Marina Topalli, born 24 March 2001, with a submission from the registered migration agent dated 14 May 2020 noting she has been granted a Student Visa in her name.

7. The Tribunal notes a response to the s.359(2) of the Act request for information was received on 11 May 2020.

8. On 12 May 2020 the Tribunal wrote to the applicants inviting them to a hearing, pursuant to s.360(1) of the Act, scheduled for 4 June 2020.  

9. The Tribunal notes the receipt of a submission from the registered migration agent on 15 May 2020.

10. The Tribunal notes the receipt of a submission from the applicant on 2 June 2020.

11. The applicants appeared before the Tribunal on 4 June 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the adult dependent applicant and two minor dependent applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.

12. The registered migration agent of the applicants took part in the hearing.

13. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were raised by the parties on holding a telephone hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

14. The Tribunal provided during the hearing several requests of the applicant for the provision of specific additional information, with the applicant confirming they would forward the information by 9 June 2020. The Tribunal notes the information was received on 9 June 2020.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. The Tribunal notes the delegate’s decision was based around compliance with cl.500.212 of the Regulations, being if the applicant was a genuine temporary applicant for entry and stay as a student.

18. Clause 500.212 states the following must be satisfied:-

    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.

19. 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.

20. 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.

21. The Tribunal has read and had regard to information provided by the applicant to the Department. The Tribunal has also read and had regard to the delegate’s decision record, a copy of which was provided to the Tribunal by the primary applicant with his application for review.

22. The Tribunal has read and had regard to information provided by the applicant to the Tribunal on 11 May 2020 as a response to the s.359(2) of the Act request for information, which includes:-

    (a)Completion of Bachelor Degree of Language and World Literature in June 1997.

    (b)Confirmation of studying three English language courses from April 2018 to July 2019.

    (c)Commencing a Certificate lll in Conservation and Land Management in January 2019 and not yet completed.

    (d)Confirmation that she did not start the Certificate lll in Laboratory Skills.

    (e)Intention to study a Diploma of Conservation and Land Management.

23. The Tribunal has read and had regard to the submission provided by the registered migration agent dated 14 May 2020.

24. The Tribunal has read and had regard to the submission provided by the applicant on 2 June 2020, being Australian Government, Department of Education and Training, Overseas Student Confirmation-of-Enrolments for a Certificate lll in Laboratory Skills course from 29/1/19 to 5/7/19 and a Diploma of Laboratory Technology course from 22/7/19 to 3/7/20 and an email from a staff member of TAFE SA on the timeframes for Certificate lll in Conservation and Land Management course currently being studied.

25. The Tribunal has read and had regard to the information provided by the applicant to the Tribunal on 9 June 2020, which includes:-

    (a)TAFE SA details of ELICOS course studied 2018.

    (b)Confirmation from TAFESA dated 12 July 219 that the applicant will not receive a Confirmation-of-Enrolment until the applicant has a successful outcome on the appeal before the Tribunal, while provided a letter of offer to study the course.

    (c)Westpac Bank transactions from 13/11/19 to 26/5/20.

    (d)NIB private health insurance policy for family, 1/4/18 to 3/9/20.

    (e)TAFE SA enrolment, course details and tuition receipts for ELICOS, Certificate lll in Conservation and Land Management and Diploma of Conservation and Land Management.

    (f)Westpac Bank transactions 5/6/19 to 5/6/20.

    (g)Details of 3 transfers in 2018 and 1 transfer in 2019 totalling $ 139,243.42 from the Italian bank account of the parties to their Australia bank account.

    (h)Submission from Migration Agent dated 9 June 2020.

26. The applicant is a 45-year-old female citizen of Italy who arrived in Australia on 15 February 2018 on an Electronic Travel 601 Visa granted 6/2/18 and to cease 15/5/18 and has been on a WA-010 Bridging Visa from 5/4/18.

27. The adult dependent applicant is a 50-year-old male who arrived in Australia on 15 February 2018 on an Electronic Travel 601 Visa granted 6/2/18 and to cease 15/5/18 and has been on a WA-010 Bridging Visa from 5/4/18.

28. The eldest minor dependent applicant is a 17-year-old female who arrived in Australia on 15 February 2018 on an Electronic Travel 601 Visa granted 6/2/18 and to cease 15/5/18 and has been on a WA-010 Bridging Visa from 5/4/18.

29. The youngest minor dependent applicant is a 15-year-old female who arrived in Australia on 15 February 2018 on an Electronic Travel 601 Visa granted 6/2/18 and to cease 15/5/18 and has been on a WA-010 Bridging Visa from 5/4/18.

30. The Tribunal notes the applicant has not left Australia since arriving 15/2/18.

31. The Tribunal notes the adult dependent applicant left Australia on 17/10/19 and returned 28/10/19.

32. The Tribunal accepts the documented and oral evidence of the applicant that she and her family came to Australia on holiday and it was then decided that the opportunity for her daughters to learn English in an English speaking nation should be pursued and she would undertake study to improve her bee keeping business skills and career options for when they return to Italy.

33. The Tribunal accepts the documented and oral evidence of the applicant that the courses of study she originally chose were withdrawn by TAFE SA and it was necessary for her to transfer to conservation and land management studies as they are the closest fit for her business and career needs.

34. The Tribunal accepts the oral evidence of the applicant and adult dependent applicant that they have not sought to work in Australia, with the applicant devoting to her studies and the adult dependent applicant maintaining the home, supporting the needs of the children and taking personal time.

35. The Tribunal accepts the documented and oral evidence of the applicant and adult dependent applicant of being financially self-sufficient, with 4 transfers totalling $139,243.42 made across 2018 and 2019 from funds in their bank in Italy to their Australian bank account.

36. The Tribunal accepts the documented and oral evidence of the applicant that she has completed all courses that have remained available.

37. The Tribunal notes the oral evidence of the applicant that the land management and conservation courses she has studied in Australia are not available in Italy and will place her well for career options upon the return of the family to Italy.

38. The Tribunal accepts the oral evidence of the oldest child of the applicant that living and studying in Australia has been very beneficial to she and her younger siblings and their knowledge of English will be advantageous to them living in Italy.

39. The Tribunal accepts the oral evidence of the applicants they will return to Italy by the end of 2021 as soon as possible after the completion of the Diploma of Land Management and Conservation.  

40. The Tribunal accepts the oral evidence of the applicant that she has daily contact with family in Italy.   

41. 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).

42. In accordance with the ministerial direction, the Tribunal asked the applicant of any circumstances in Italy that may induce her to apply for a student visa as a means of remaining in Australia indefinitely. The applicant provided oral evidence to the Tribunal that there are not any reasons why she cannot return to Italy and that she does not have any issues concerning military service, political or civil unrest.

43. There is no particular evidence regarding the applicant’s circumstances in her home country relevant to others in that country and the Tribunal makes no findings concerning the applicant in that respect.   

44. 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.

45. 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).

46. The Tribunal accepts the documented and oral evidence of the applicants having a private health insurance policy in place to 3/9/20.

47. The Tribunal accepts the oral evidence of the applicants that they have at no time sought to work in Australia and have complied with bridging visa conditions imposed.

48. 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).

49. 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.

50. 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.

51. Given the above findings, the appropriate course is to reconsider the applications of the dependent visa applicants.

    DECISION

52. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Steven Griffiths
    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.