VALDEZ (Migration)

[2019] AATA 1180

VALDEZ (Migration) [2019] AATA 1180 (7 January 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JOSE LITO TAN VALDEZ

CASE NUMBER:  1709439

DIBP REFERENCE(S):  BCC2016/3642674

MEMBER:Mark Bishop

DATE OF DECISION:  7 January 2019

DATE CORRIGENDUM

SIGNED:9 January 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The date on the front page of the Decision Record ‘7 January 2018’ should be replaced with ‘7 January 2019’.

Mark Bishop
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JOSE LITO TAN VALDEZ

CASE NUMBER:  1709439

HOME AFFAIRS REFERENCE(S):           BCC2016/3642674

MEMBER:Mark Bishop

DATE:7 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 07 January 2019 at 11:20am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in courses for lengthy period – no evidence of current enrolment – completed multiple VET courses – mere dissatisfaction with finding of delegate are fraught grounds to seek review without adequate GTE submissions – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 April 2017 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 2 November 2016. 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 the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a history of the applicant’s immigration visa and study history in Australia.

5. The applicant did not seek to challenge the findings of the delegate.

6. The Tribunal wrote to the applicant on 29 May 2019 requesting information under s.359(2) of the Act in the following terms:

   ·As you applied for this visa on the basis of undertaking a course of study in Australia, it is a requirement for the visa that you are enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.

   ·Accordingly, you are now invited to give, in writing, information about your proposed course(s) of study and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information questionnaire attached with this letter. The information requested should be given by completing the attached questionnaire and returning it to us.

7. The Tribunal advised the information should be provided by 12 June 2018. On that date the applicant provided a written response as requested. He also provided a brief GTE Statement.

8. On 12 June 2018 the applicant advised the Tribunal in writing he consented to the Tribunal deciding the review without a hearing (Tf: 25).

9. At this point is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

10. In these circumstances, the Tribunal has decided to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department.

11. The Tribunal resolved the review application on the papers.

12. For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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

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

14. 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?

15. 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.

16. 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.

17. The applicant provided a brief summary statement to the Tribunal (Tf: 27). The statement outlined his education in his home country, his employment in allied fields as a mechanic in Australia and his completion of various VET courses in Australia. He advised the Tribunal he had “…finished all [his] planned courses successfully and [has] no intention of further stay in Australia, I do not want a bad immigration record of visa refusal. So I decided to stay here and fight the unfair decision of my student visa application and appeal for a proper review by MRT”.

18. The applicant provided a written response to a Request for Student Visa Information under s.359(2) of the Migration Act. It outlined the following:

    ·He completed a Diploma of Aircraft Technician in the Philippines in 1992;

    ·He was continuously employed as a maintenance worker, salesman and businessman in the Philippines from 1992 until March 2011;

    ·He has been resident in Australia since 2011 as the holder of various student (three), 485 temporary graduate and bridging visas;

    ·He  completed various VET level courses in Auto Technology, Business, and Leadership and Management at Diploma and Advanced Diploma level from February 2012 until December 2017;

    ·He did not enrol in any courses of study after December 2017;

    ·He worked in Australia as a process technician and motor mechanic;

    ·He is a citizen of the Philippines, first arrived in Australia in June 2011 visited family and friends in his home country in late 205 and 2017 and has not applied for a visa to any other country;

    ·His annual living expenses in Australia are approximately $16,000 AUD;

    ·He last saw family in the Philippines in January 2017.

19. The applicant did not provide any evidence of a current Confirmation of Enrolment (COE). He did not provide any evidence of enrolment in a course of study. He advised the Tribunal he had completed his courses of study in Australia. He advised the Tribunal (in writing) he did not have a COE or letter of offer in a course of study.

20. As outlined in paragraph 17 above the applicant advised the Tribunal he did not want a bad immigration record of visa refusal so he decided to stay in Australia and fight the unfair decision on his student visa application and appeal for a proper review by the MRT.

21. The Tribunal has reviewed all the material in the Departmental and Tribunal files. The decision record provides a detailed, cogent and complete set of findings leading to the conclusion of the delegate that he was not satisfied the applicant intended genuinely to stay temporarily in Australia. The applicant in his brief “Summary Statement for MRT Appeal” provided to the Tribunal did not criticise the findings of the delegate or point out any errors.

22. The review application is a “de novo” application. The Tribunal brings an independent mind to the review application. It is not bound by the decision of the delegate.

23. Whilst the applicant is clearly aggrieved at the decision of the delegate mere dissatisfaction with the finding of the delegate are fraught grounds to seek review without adequate GTE submissions.

24. The Tribunal has reviewed the relevant statements of the applicant. The applicant advised as follows: his employment in Australia as a mechanic; his desire to acquire business skills; his completion of his courses of study in Australia; his lack of current enrolled in a course of study in Australia; his wish to return to his home country to marry his girl-friend; and his desire to open a business funded by his uncle.

25. The applicant has made it clear in his brief “Summary Statement for MRT Appeal” and written response to a Request for Student Visa Information under s.359(2) of the Migration Act that he no longer needs or wants to pursue study options in Australia. Critically he has given effect to that stated intention by advising of lack of enrolment in approved courses at the time of decision.

26. The applicant did not provide a COE or proof of enrolment in a course to the Tribunal.

27. Clause 500.2 of Schedule 2 to the Migration Regulations relevantly provides that cl.500.211 and cl.500.215 are primary criteria and must be satisfied by at least one member of the family unit. These criteria must be satisfied at the time of the decision.

28. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

29. 'Course of study' is relevantly defined in cl.500.111 of the Regulations as a 'full-time registered course'. 'Registered course' is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

30. The applicant advised he completed a Diploma of Leadership and Management in December 2017. He advised he had not enrolled in any further courses of study.

31. The applicant did not provide a copy of a current COE for enrolment in an approved course.

32. Accordingly, there is no evidence before the Tribunal that the applicant is now enrolled in a course of study. Therefore the Tribunal is not satisfied that at the time of this decision the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

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

34. 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

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

    Mark Bishop
    Member