Warui (Migration)

[2021] AATA 1127

Warui (Migration) [2021] AATA 1127 (9 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr. Paul Kariuki Warui
Mrs. Jackline Wanja Muriuki

CASE NUMBER:  1933202

HOME AFFAIRS REFERENCE(S):          BCC2019/4576286

MEMBER:P. Adami

DATE:09 April 2021

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named and second named applicants, respectively, 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 09 April 2021 at 4:02pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – consent to decision without hearing – incentives to remain or return – family and assets in home country – four children in care of grandmother – continuing successful study – stated intention to return home – value of course to applicant’s future – secondary applicant returned to home country and unable to travel because of COVID-19 restrictions – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2)

Migration Regulations 1994 (Cth), Schedule 2, cls 500.212(a), 500.311

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 November 2019 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 12 September 2019. 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 visa on the basis that the primary applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was not satisfied that the primary applicant genuinely intends to stay in Australia temporarily as a full time student.

4. On 15 January 2021, the Tribunal formally wrote to the review applicants pursuant to section 359(2) of the Act, inviting the applicants to provide further information to the Tribunal, including information as to the primary applicant’s enrolment and being a genuine applicant for entry and stay as a student. The invitation was sent to the primary review applicant’s registered migration agent, Mr. Sampanna Ghimire of Visa Hub Australia, being the nominated contact details provided by the applicants in their 21 November 2019 ‘Application for review’. The applicants were given until 29 January 2021 to file the material sought in the invitation.

5. On 28 January 2021, the applicants filed their supporting evidence with the Tribunal. In the completed Request for Student Visa Information filed, the applicants consented to the Tribunal deciding the review without a hearing.

6. The Tribunal is satisfied that the necessary consent has been given under s360(2)(b) of the Act, and that pursuant to s360(3), the applicants are no longer entitled to appear before it. The matter has therefore been determined on the evidence available to the Tribunal.

7. It is appropriate to note that a decision maker is not required to make the applicants' case. It is for the applicants 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 applicants, in as much detail as is necessary to enable the examiner to establish the relevant facts.

8. In these circumstances, the Tribunal has proceeded to make a decision having regard to the information before it, including the information previously provided by the applicants to the Department.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 genuinely intends to stay temporarily in Australia.

11. 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?

12. 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.

13. 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 primary applicant’s circumstances as a whole, in reaching a finding about whether the primary applicant satisfies the genuine temporary entrant criterion.

14. The primary applicant is a 44 year old Kenyan male who travelled to Australia on 01 July 2018, holding a Student Visa granted on 16 May 2018. The secondary applicant is the wife of the primary applicant. On 12 September 2019, having completed a Bachelor of Science (Nursing) at Edith Cowan University, the primary applicant applied for a further Student visa to study a Certificate IV and Diploma of Work Health and Safety. On 04 November 2019, a delegate of the Minister refused the primary applicant’s application for a Student visa. It is the delegate’s 04 November 2019 refusal which gives rise to the review application now before the Tribunal. A copy of the delegate’s decision was provided by the applicants to the Tribunal at the time of their application for review.

15. The Tribunal has read and had regard to the documentation provided by the applicants to the Department. The Tribunal has also read and had regard to the documentation provided by the applicants to the Tribunal. This in part includes; the delegate’s Decision Record dated 04 November 2019; the applicants’ completed Request for Student Visa Information; primary applicant’s 05 September 2019 Statement of Purpose filed with the Department; secondary applicant’s 12 September 2019 Statement of Purpose filed with the Department; Republic of Kenya Certificate of Marriage issued to the applicants; Certificate of Completion and Record of Results dated 04 September 2020 issued to the primary applicant for the Certificate IV in Work Health and Safety; Confirmation of Enrolment (COE) for the Diploma of Work Health and Safety at DNA Kingston Training with a course start date of 10 September 2020 and a course end date of 10 September 2021.

16. On 06 April 2021, the Tribunal obtained a Provider Registration and International Student Management System (PRISMS) search to confirm the applicant was still enrolled as proposed. The PRISMS search indicates that the primary applicant completed the studies possible as proposed at the time of his recent Student visa application, and as set out in the completed Request for Student Visa Information. The PRISMS extract confirms the primary applicant is expected to complete the Diploma on 10 September 2021.

17. The primary applicant arrived in Australia having completed a Diploma in Community Health Nursing, a Diploma of Accident and Emergency Nursing and a Bachelor of Science. The primary applicant was an enrolled nurse in Kenya, and between November 1998 to June 2018, the primary applicant worked as a registered nurse/midwife prior to arriving in Australia in July 2018.

18. The primary applicant states in his 05 September 2019 Statement of Purpose, “In my future education plans, I will seek to consolidate my academic training in workplace health and safety and return to my home country to be part of the training resources. I believe that training is the best strategy in introducing positive changes and bringing about the desired outcomes. In this case, I would like to see a new culture of healthy workers and safe workplaces which will translate to efficiency in the workplace. Therefore, my plan is to develop a training program to deliver the knowledge, skills and techniques that I have learned in my training and create a culture that workers and workplaces deserve. I believe that having acquired international qualifications will give me an advantage in Kenya as the country values international credentials and employers in this field seek highly qualified staff.” [Original]

19. At the time the secondary applicant wrote her Statement of Purpose (12 September 2019), she states she was visiting the primary applicant in Australia. The secondary applicant states that she intended to return home to Kenya, and then return to Australia to support her husband as he completes his studies. The applicants have 4 children in Kenya, and it was proposed that the children would be looked after by their grandmother before the applicants returned to Kenya following the primary applicant’s study coming to an end. The Tribunal notes that the primary applicant lists in his completed Request for Student Visa Information that he last saw his wife in September 2019. Given the completed form was filed with the Tribunal in January 2021, the Tribunal considers it is likely that the secondary applicant did not return to Australia and is not currently in Australia, noting that international travel was largely impossible from March 2020 due to the COVID-19 situation and is still restricted.

20. In any case, the secondary applicant states in her Statement of Purpose, “After completion of my husband’s study we will return to Kenya to enjoy our life with our children and our family. I declare that I will abide by the requirements of my visa, and that I will be an active and respectful member of the Australian society.” The primary applicant in his completed Request for Student Visa Information states, “On return to Kenya, I will immediately start training with the Kenya Council of emergency medical technicians (KC EMT) and the Avenue Group. In future, I will start my own training company once I have settled back in the country.” [Original]

21. The Tribunal places significant weight in the stated and clear intention that the primary applicant will return home at the end of the Diploma of Work Health and Safety course in September 2021. The Tribunal is mindful of that the primary applicant has worked in 3 jobs in Australia without interruption from August 2018 to January 2021. The lowest annual approximate income listed is $36,000 and the highest approximate income listed in $76,000. The primary applicant stated in a 19 March 2021 email to the Tribunal, “I am a Registered nurse working as a casual in aged care. Over the last one year, due to coronavirus pandemic, the government has allowed international students working in aged care to work more than 20 hrs a fortnight. My employer, Baptistcare, have an acute shortage of nurses and are asking me to work for them. However, I am unable to take the offer due to my ongoing case.” The Tribunal notes that the primary applicant lists in his completed Request for Student Visa Information that he has cash in bank accounts in Australia and Kenya totalling approximately $55,000. Without the clearly stated intention to return home to Kenya, the Tribunal considers it would not have been minded remitting the application back to the Department for its further consideration.

22. The Tribunal considers there is some value to the primary applicant’s career in completing the currently enrolled course and then returning home to carry into effect his career plan. The Tribunal considers the primary applicant’s clear desire to return home demonstrates that he has a genuine intention to study in Australia, and thereafter depart.

23. There is no evidence before the Tribunal in relation to the primary applicant’s circumstances in his home country relative to the circumstances of others there.

24. The primary applicant lists in his completed Request for Student Visa Information that his wife, 3 daughters, 1 son and parents live in Kenya. The primary applicant also lists that he has 3 brothers and 1 sister who also live in Kenya, and 1 brother who lives in the United States of America. The primary applicant states in his completed Request for Student Visa Information that, “I video call My wife and children every 2 or 3 days depending on availability due to time difference. We text each other daily on whatsapp media and share other communication on email. I communicate with my siblings regularly at least weekly on voice and text.” The Tribunal notes that the primary applicant lists that he has returned home to Kenya on 1 occasion in February 2019 for 3 weeks since arriving in July 2018. As noted above, the secondary applicant visited the primary applicant in Australia in September 2019.  The Tribunal considers that the presence of the secondary applicant in Kenya together with his family, acts as an incentive for the primary applicant to return home after finishing his course in September 2021.

25. The primary applicant lists in his completed Request for Student Visa Information that the property and other significant assets owned by him in Kenya include land, shares, a commercial building and cash worth approximately $596,000. The applicant also lists that he has a car and cash in Australia worth approximately $50,000. The Tribunal does not consider this property acts as a significant incentive to return home give land and shares can sold or transferred, and readily turned into cash.

26. There is no evidence that the primary applicant has significant community ties such that they would present as a strong incentive to remain in Australia or return to Kenya. On balance, the Tribunal does not consider this factor weighs either for or against the primary applicant being a genuine temporary entrant. The primary applicant did not disclose any military service commitments that would serve as a significant incentive not to return home. Further, the primary applicant does not disclose any political or civil unrest in his home country that may induce him to apply for a student visa to obtain entry into Australia for the purposes of remaining indefinitely.

27. The primary applicant has not applied for a visa where a decision on that application has not yet been made. There is no evidence that the primary applicant has been refused a visa to another country (including Australia) or held a visa that was cancelled or considered for cancellation.

28. The Tribunal considers that the delegate's concerns about whether the primary applicant met the genuine entrant criterion were fair and justified. However, after careful consideration and it being finely balanced, the Tribunal is satisfied that the primary applicant intends genuinely to stay in Australia temporarily. Accordingly, the primary applicant meets cl.500.212(a).

29. For the avoidance of doubt, this matter is to be remitted to the Department with a Direction that the primary applicant meets the criteria on the basis that he has successfully studied notwithstanding the delegate’s adverse November 2019 decision; he expects to complete his Diploma of Work Health and Safety course in September 2021; and that he intends to return to Kenya upon completing the course and thereafter carry into effect his career plans. There is no evidence before the Tribunal that the applicants intend to apply for any further visa of any nature, or seek to extend their stay in Australia, either separately or as a couple. The applicant has 5 months left before completing the current course, and the Tribunal considers that he is fortunate that he has utilised the time between the delegate’s decision to today’s decision to successfully study.

30. 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.

31. As the Tribunal has found that the primary applicant meets the criterion for the grant of a student visa, it must remit the decision under review that the second named applicant meets cl.500.311 as she is a member of the family unit of a person who satisfies the primary criteria in cl.500.212. The secondary applicant did not make any claims or provide evidence that they satisfy the primary criteria. Given the COVID-19 situation relating to international travel, and with the secondary applicant overseas, there may be little utility in this grant however that is a matter for the Department.

    DECISION

32. The Tribunal remits the application for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named and second named applicants, respectively, 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

    P. Adami
    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.