Raymundo (Migration) [2022] AATA 3443 (26 September 2022)

Last Updated: 21 October 2022

Raymundo (Migration) [2022] AATA 3443 (26 September 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Nomer Tan Raymundo

REPRESENTATIVE: Mr Jaypee Vergara Casapao (MARN: 1800082)

CASE NUMBER: 2118108

HOME AFFAIRS REFERENCE(S): BCC2020/1331439

MEMBER: Vanessa Plain

DATE: 26 September 2022

PLACE OF DECISION: Melbourne

DECISION: The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

• cl 500.212 of Schedule 2 to the Regulations

Statement made on 26 September 2022 at 11:32am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – applicant arrived in Australia on a visitor visa – academic progress – impact of the COVID19 pandemic – border closure – family ties in home country – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
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 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 8 April 2020. The delegate refused to grant the visa on 16 November 2021.
2. The delegate made the decision, in whole or substantial part, on the basis that evidence of:
   • An investigation of study options in the applicant’s home country
   • Current employment status in home country
   • The value of the courses to the applicant’s future
   • An explanation as to how the Australian qualification will assist the applicant in achieving their career goal in comparison to a qualification which could be acquired domestically
   • An explanation as to how an overseas qualification will assist the applicant establish a business in the applicant’s home country

was not provided as required to satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a subclass 500 student visa.

3. The applicant appeared before the Tribunal on 26 September 2022 to give evidence and present arguments.
4. The applicant was assisted in relation to the review by his registered migration agent.
5. The delegate’s decision record reveals that the applicant is a Filipino national who first arrived in Australia on 20 March 2020 utilizing a Visitor Visa. The delegate held concerns and attributed weight to the fact that the applicant arrived in Australia on a visitor visa and is now proposing to undertake courses, extending his stay in Australia for more than three years as being evidence of the applicant not being a genuine student. The delegate considered that while it is not uncommon for an applicant to further educate himself or herself or alter their migration intentions, it is not consistent with the behaviour of a genuine student to seek a change in pathway shortly after arriving in Australia for a short visit. The delegate was further concerned that the applicant’s primary motivation in applying for a Student visa was to secure ongoing residence in Australia, rather than due to a genuine desire to undertake the course of study. For these reasons, coupled with the lack of information referred to above, the delegate determined that the applicant was not a genuine entrant.
6. In advance of the hearing the Tribunal received the following documents directed to addressing the deficiencies set out by the delegate in the decision record, as follows:
   • Confirmation of Enrolment for a Diploma of Leadership and Management and an Advanced Diploma of Business which is scheduled to conclude in July 2023
   • GTE statement of the applicant
   • A Response to Request for Student Visa Information
   • A suite of academic documents evidencing course attendance, course completion and grade attainment in Australia and overseas
   • Bank statements
   • Business plan
   • Research into education providers
   • Return air tickets
   • Legal submissions
   • The delegate’s decision record
7. The Tribunal has considered the documents produced by the applicant.
8. The applicant stated at the hearing that the reason he changed in migration intentions after arriving as a tourist was due to the pandemic. He couldn’t leave after he arrived in March 2020 as the borders were shut. He did not want to waste time in Australia and looked into studying while he was ‘stuck’ here. He has completed his leadership and management studies and is on track to complete his Diploma by next year as anticipated. He does not want to stay permanently as his family are in his home country.
9. The Tribunal finds that the applicant is not utilising the student migration program to obtain long term residency. Although the Tribunal notes that the applicant has changed his migration intention since arriving utilising a Visitor Visa, at the time of this decision the documentation before the Tribunal clearly establishes that the applicant has attended class and progressed academically. This is the applicant’s first student visa application and the documents produced demonstrate that he has a thorough understanding of his course contents, has researched education providers in Australia and has obtained good academic results in his studies to date. Further documentation establishes that he has modest financial ties to his home country, strong familial ties to his home country and is aware of his living expenses and visa conditions in Australia. The Tribunal places weight on these factors as being indicative of the applicant being a genuine student who intends genuinely to stay in Australia temporarily for the purposes of study.
10. The Tribunal further finds that the applicant has in his Response reasonably demonstrated the value of the course to his future to an extent that outweighs the current cost of completing the course, by articulating how the Diploma of business will assist him develop skills to run his own business in his home country.
11. The Tribunal is further satisfied that there is no information before the Tribunal to suggest that the applicant has an adverse immigration history in Australia.
12. In light of the new evidence received and the findings set out above, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

DECISION

13. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:
    • cl 500.212 of Schedule 2 to the Regulations

Vanessa Plain
Member