1416753 (Migration)

[2016] AATA 3490

1416753 (Migration) [2016] AATA 3490 (15 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Tanuja Devi TEERUTHROY
Mr Premnath TEERUTHROY
Master Prahlad Sharma TEERUTHROY

CASE NUMBER:  1416753

DIBP REFERENCE(S):  BCC2014/1949341

MEMBER:Miriam Holmes

DATE:15 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 15 March 2016 at 4:58pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration 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 to the Department of Immigration for the visas on 8 August 2014. The delegate decided to refuse to grant the visas on 22 September 2014. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visas because the primary applicant (Mrs Teeruthroy) did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the primary applicant intends genuinely to stay in Australia temporarily.

4. The applicants, Mrs Teeruthroy and Mr Teeruthroy, appeared before the Tribunal on 26 February 2016 to give evidence and present arguments.  

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

8. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)      the Minister is satisfied that 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)     …

9. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

10. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

11. The Tribunal took into consideration the following information in making a decision in relation to this matter:

    Applicant’s circumstances

12. The primary applicant has applied for a further student visa on the basis of undertaking studies in an Advanced Diploma of Management course and an Advanced Diploma of Leadership and Management course.

13. The primary applicant was born in 1971 in Mauritius, and is aged 44 years and is a citizen of Mauritius. The secondary applicant was born in 1959 and is aged 56 years; he is a citizen of Mauritius. They have a son, Prahlad, born in 2000 in Mauritius and he is now aged 15 years. Prahlad is currently studying year 11 in a local school in Melbourne.

14. The primary applicant’s parents are deceased, however her two sisters reside in Mauritius. The primary applicant has aunties and uncles in Mauritius and some relatives in Europe. The primary applicant has a nephew who resides in Australia and he is studying his Masters. He also travelled to Australia in 2008 to study. The secondary applicant has no family in Mauritius or Australia and his parents are deceased.

15. The primary applicant stated that they have no property in Mauritius and they have minimal bank savings in Mauritius. In the visa application process the applicants provided bank statements showing minimal deposits in accounts in MPCB.

16. The primary applicant attended school in Mauritius and completed her secondary schooling in 1986. Between 1986 and 1991 the primary applicant worked in her maternal uncle’s retail shop.

17. Between June and July 1991 the applicant undertook and was then awarded a Certificate of Competence in a Professional Salesmanship course at Champion Marketing.

18. In 1992 the primary applicant travelled to India and completed a Diploma in Beauty Therapy and Hairdressing by successfully undertaking a six-week course. This Diploma was awarded on 26 March 1992. On 26 March 1992 the primary applicant also received a Merit Certificate of Mehndi design and application. The applicant then returned back to Mauritius for a holiday for several months. Later in 1992 the applicant returned to India and undertook a Diploma course over a period of several months in beauty and hairdressing. On 12 May 1992 the primary applicant received a Certificate for practical and theoretical training from Woman’s World.  On 16 September 1992 the primary applicant received a Diploma in Hairdressing from the Emeralde. On 21 September 1992 the applicant was awarded a Diploma in Mehndi Design and Application by the Emeralde. On 8 August 1992 the applicant was awarded a Diploma in Cosmetic Science from the Emeralde.

19. The primary applicant returned to Mauritius and established her own salon. She managed and operated her own salon business for two years between 1993 and 1995. In 1995 she decided to close the salon as she was unable to continue to meet the rental costs associated with the business as they had been increased every year by the landlord.

20. Between 1996 and 1998 the primary applicant undertook home duties and did not work. In this period she intermittently gave demonstrations for another business owner who operated a hairdressing school. This business owner encouraged the primary applicant to undertake further study for the purposes of teaching at the hairdressing school. In late 1998 and early 1999 the primary applicant undertook a teacher’s training course by distance learning. In February 1999 the primary applicant was issued a Diploma in Teaching the ITEC Syllabus. Subsequently, the applicant undertook work for another business owner, including teaching at a hairdressing school and also worked at another salon from November 1998 to December 1999. In correspondence dated 12 August 2008 the business owner noted that the primary applicant was in charge of the Beauty Clinic of Rose-Hill and also a part time tutor at her Beauty school during the period November 1998 to December 1999.  On 21 July 1999 the primary applicant was registered by the Industrial and Vocational Training Board as a trainer for a period until 14 July 2002.

21. Between 1999 and 2002 the primary applicant undertook home duties. In 2000 the primary applicant gave birth to her son, Prahlad. The primary applicant was the primary carer for Prahlad and undertook home duties living in Mauritius between 2000 and 2008. Later in the hearing the primary applicant stated that she worked part time before travelling to Australia. The Tribunal notes that the primary applicant provided a letter dated 26 August 2014 from IPEX Ltd stating that the primary applicant worked between 2006 to 2008 for the company as a part time staff member. 

22. The primary applicant stated that in 2008 she went to a migration agent to see what she could study. At that time her nephew was going to study in Australia and he also arrived in Australia in 2008. The agent recommended that the primary applicant travel to Australia to study hairdressing. The primary applicant considered that it would be important to undertake new training to understand new trends and technology in the hairdressing industry given that she had only completed two very short courses in India. The primary applicant stated that the migration agent recommended the school and a brochure in Australia. The Tribunal queried why the applicant chose hairdressing and the primary applicant stated that she had only completed a six week course and a two-month course in India and she had not undertaken any training in highlighting and was not aware of new trends, and considered that Australia offered a high-quality system of education.

23. On 14 August 2008 the primary applicant was granted a student (subclass 572) visa with effect until 15 March 2011.  On 14 August 2008 the primary applicant travelled to Australia by herself to study. The secondary applicants, her husband and son, remained in Mauritius.

24. In 2009 the primary applicant undertook studies in a Certificate III in Hairdressing course and on 19 December 2009 was awarded a Certificate III in Hairdressing from Academia International.

25. On 29 January 2010 the secondary applicants travelled to Australia.

26. In the first six months of 2010 the primary applicant successfully undertook and completed a Certificate IV in Hairdressing and was awarded the Certificate on 7 July 2010 by Academia International. For the remainder of 2010 the primary applicant successfully undertook and completed a Diploma of Hairdressing Salon Management and was issued the Diploma on 18 December 2010 by Academia International.

27. On 25 May 2011 the applicant was granted a second student (subclass 572) visa until 12 May 2012.

28. The Tribunal asked the primary applicant why she did not return to Mauritius at the end of 2010, at the completion of the Diploma of Hairdressing Salon Management.  The primary applicant stated that she was in Thornbury when she was crossing the road and saw signage for Australian College. The applicant went to see what courses they had on offer and after visiting the college chose to undertake a Diploma in Management. She stated that she undertook this course to assist her in managing a business. The Tribunal noted that the primary applicant had already completed a Diploma of Hairdressing Salon Management and queried why she needed to undertake a further Diploma in Management. The primary applicant stated that she did study in management, but this course had different units and involved different books.

29. The primary applicant undertook the Diploma of Management for one year and completed this course on 12 March 2012 at the Australian College of Trade.

30. On 28 June 2012 the primary applicant was granted a third student (subclass 572) visa until 9 August 2014.

31. Between 2012 and June 2014 the primary applicant successfully undertook and completed a Certificate III in Hospitality (Commercial Cookery) and a Diploma of Hospitality (Culinary Arts Pathway). On 24 May 2013 the primary applicant was awarded the Certificate III in Hospitality (Commercial Cookery) and on 9 June 2014 the primary applicant was awarded the Diploma of Hospitality from the Australian College of Trade.

32. The Tribunal asked the primary applicant why she pursued studies in hospitality and cookery. The primary applicant stated that she completed the Diploma of Management and she saw other students in the same building and they told her about the commercial cookery and kitchen course. The primary applicant stated that she planned to open a salon and coffee shop so she decided that she would undertake the commercial cookery course. The Tribunal queried why it was necessary for her to undertake a commercial cookery course if she was going to open a café. The primary applicant stated that she considered her son’s future and to set him up, so is looking for him to have a coffee shop and for her to run a salon.

33. After completing the commercial cookery and hospitality courses, on 8 August 2014 the primary applicant applied for a fourth student (subclass 572) visa. This is the visa application under consideration by the Tribunal. The visa application was made on the basis that the primary applicant would undertake a Diploma of Business and an Advanced Diploma of Management course at Symbiosis College.

34. In correspondence dated 7 September 2014, the primary applicant stated that the reasons for choosing to undertake the nominated courses were to increase her knowledge of marketing and she believes that it is important to study management in order to run a business – she noted “My objective is to learn about setting and achieving goals, how to be a successful entrepreneur, how to maintain good relationships with clients.” The primary applicant referred to the better education in Australia. She stated in the correspondence that IPEX Ltd wish to re-employ her when she returns to Mauritius and she intends to work as a trainer in hairdressing for some time. Then, later, she wants to open a hair salon and coffee shop. She intends to set up several businesses to employ her son in Mauritius.  She notes that her husband will look after the coffee shop until Prahlad is 18 years old.

35. At the hearing, the primary applicant stated that she intended to stay temporarily for her studies in Australia.  The primary applicant said that she pursued the Diploma of Business in order to do something else and to enhance her knowledge in business, so that she had a better education. After completing the Diploma of Business the applicant stated that the Symbiosis College closed and so she did not formally receive her Diploma of Business. She had started her Advanced Diploma when the College closed. She subsequently transferred to ALTEC. At ALTEC she is currently undertaking an Advanced Diploma of Management and then proposes to undertake an Advanced Diploma of Leadership and Management between 11 July 2016 and 9 July 2017.  The Tribunal asked the primary applicant why she was pursuing these new courses. The primary applicant stated that when her school closed she wished to pursue study in similar courses. She stated that once she finishes these courses then she will return to Mauritius to work.

36. The Tribunal asked the primary applicant how her current proposed courses would assist her in her plans in Mauritius. The primary applicant stated that they have made her more innovative and creative, and she learnt a lot of experience, for when she wants to be a businesswoman herself. The Tribunal queried how these courses were relevant to her plans. The primary applicant stated that when she had her own business, people did not have their hair coloured and she did not know how to colour hair so since she has come to Australia she has learned how to undertake different tasks in hairdressing and how to put on things, such as a hair show which she has not learnt before. She stated that the business courses would help her in the hairdressing and beauty salon to make sure she is running the business by herself and to be organised. The Tribunal noted that she had undertaken a hairdressing salon management course and had concerns about why it was necessary to undertake further courses. The Tribunal noted that it had concerns, given the applicant’s previous work history and previous studies and time in Australia, that these proposed courses would assist her in her plans to run a business in Mauritius. The primary applicant stated that through these courses she would learn to do her own taxes and she would not need to have an accountant in Mauritius to undertake these tasks and that these courses have helped a lot, such as how to do a newsletter and have other skills in Mauritius.

37. The primary applicant stated that the costs of the courses has been as follows - $12,000 per year for the hairdressing qualifications, $6000 for the Diploma of Management, $6000 for the Hospitality courses, $6000 was paid for the Diploma of Business – although she was not awarded this Certificate. The cost of the current courses that the applicant is enrolled in is $6000.

38. The Tribunal asked how the applicants had been meeting their costs since being in Australia. The primary applicant stated that her sponsor, who was a friend, and ex-neighbours had sent money to her and had been assisting them to meet their expenses. The primary applicant stated that between January 2009 and August 2015 she did not work. She stated that she travelled to Australia with money and her sisters and brother in law sent her money twice in 2009 and 2010. She also stated that prior to her husband arriving in Australia he was also working in Mauritius.

39. During the visa process the applicant provided bank records for Mr Fong (a friend) and a letter from Mr Fong stating that he was a close friend to Mrs Teeruthroy’s father and he is ready to support Mrs Teeruthroy and her family during their stay in Australia. At the hearing, the primary applicant stated that her sponsor, Mr Fong, had been sending cash money via cabin crew flying into Australia to support the applicants. The primary applicant stated that Mr Fong sent approximately $4000 cash per term to Australia via the cabin crew. The primary applicant confirmed these monies were in cash, and there is no record or bank records of these payments. The Tribunal noted in the hearing that it found it difficult to accept that over a period of five years the primary applicant had been supported by a person being a friend overseas who had been sending cash via airline cabin crews travelling to Australia. The applicant confirmed that this was her evidence regarding funds in that period. The Tribunal had serious reservations and does not accept the primary applicant has been receiving financial support for a period of over five years in the form of cash payments from a friend delivered to Australia by airline cabin crew. The Tribunal considered it more likely that the applicant worked in Australia in that period.

40. The primary applicant stated to the Tribunal that since August 2015 the primary applicant has worked in a beauty parlour undertaking waxing and beauty treatments part-time on Monday, Wednesday and Thursday and is earning approximately $900-$1000 per week. The applicant stated that she commenced work in August 2015 as a friend opened a salon and offered her a job.

41. The secondary applicant told the Tribunal that prior to the travelling to Australia he worked as a Hindu priest in Mauritius and he earned a salary of approximately Rs.2000 per month, which was about $80-$90 Australian per month, and he also received income from prayers and other religious services that he provided. He stated that he received enough money for the family to survive. The secondary applicant stated that he been working as a full-time priest since about 1991 and worked in three or four different temples. In Mauritius they rented a home. If they return to Mauritius they will rent accommodation. The applicants provided a copy of correspondence dated 26 August 2014 from a service co-ordinator in Mauritius setting out that Mr Teeruthroy has been a priest for a long time and they miss him a lot and are waiting for him to preach again in their society.

1. The primary applicant stated that within six months of arriving in Australia the secondary applicant obtained work and has been earning money undertaking pamphlet deliveries, and earns between $400 and $600 per month depending on the season. The secondary applicant gave similar evidence and noted in the peak season he can earn significant income.

   Applicant’s migration History

2. The primary applicant arrived in Australia on 14 August 2008 and has held three student visas to remain in Australia. The primary applicant has not returned to Mauritius at any time. The secondary applicants arrived in Australia on 29 January 2010. The secondary applicants have remained in Australia since arriving in 2010 and have not returned to Mauritius.

   The primary applicant stated that she is living in Australia for temporary reasons to study. Her family now, being her husband and her son, are here in Australia and she does not need to return to Mauritius to see them. The primary applicant stated that her priority is her son. She stated that if her husband and son had remained in Mauritius she would have returned and visited them. However because her son and husband are in Australia, her family is with her and it was not appropriate for her to go as she was reliant on funds from Mr Fong. The primary applicant stated she can talk to her sisters on the telephone and know they are all right.

   Other Relevant Matters

3. During the review process the applicants provided a copy of correspondence from the Saints Badminton Club confirming that the primary applicant and her son were active members of the club for seven years.

4. During the course of the hearing the applicants provided to the Tribunal a copy of correspondence from Prahlad’s high school dated October 2014. The school correspondence indicates the support given by the school to assist the primary applicant and secondary applicant’s son. In a letter from the EAL coordinator she notes the following “Pred’s work is of a high standard as he values his education and hopes to complete his secondary education Australia and continue to university. Pred has taken this goal very seriously and under my suggestion has not returned to his country of birth so as to focus on developing his skills in English language and therefore achieve the desired results in VCE. Pred is also studying French of the Victorian School of languages as he believes his score in this subject will help him with his score at the end of year 12.” The Tribunal noted that the correspondence from the high school indicated that the plan was for the primary applicant’s son to complete his education in Australia which would require him to remain in Australia until November 2017 for the purpose of completing his VCE. The Tribunal observed this correspondence indicated that it was planned for the secondary applicant (son) to remain in Australia after June 2017 when the proposed course is due to completed. The Tribunal invited the primary applicant to comment on these observations. The primary applicant responded by stating that if the Symbiosis College had not closed then she would have already obtained her qualification and returned to Mauritius. The Tribunal again queried whether the intention was for their son to complete his year 12 education in Australia which would mean he would remain in Australia after June 2017. The primary applicant stated this was the views of the teachers and had nothing to do with the primary applicant. The primary applicant stated that if she finished her studies then she would have to return to Mauritius and her son would have to return with her.

5. The primary applicant stated that her son is the joy of her life and he is her number one priority and makes her more energised to study in Australia. Mr Teeruthroy stated that he is happy for his son to study in Australia and he is doing very well. He stated that he wants his son to be well educated. The Tribunal noted that on one view they are in Australia for the son to study and complete his secondary education which would take until the end of November 2017. The applicants responded that they understand that they will have to go once the student visa expires and that their son would attend university in Mauritius and they are only here for the period of the student visa and then return with their son to Mauritius.

6. The Tribunal asked why the applicants would return to Mauritius. The primary applicant stated that she has family and friends, there is a good tourist spot and she wants to set up her business in a coastal area where western people will visit the salon and coffee shop.

7. The Tribunal queried how the applicant would be able to financially establish a coffee shop and salon in Mauritius. The primary applicant responded that she would work for a short period of time to save money and then she would obtain a loan from an entrepreneur’s loan scheme which is available in Mauritius. The primary applicant stated that if she returned to Mauritius, she would return to work for her former employer at the Institute of professional experts (IPEX). The Tribunal notes it received an undated letter from a person that cannot be identified at IPEX Limited. In this letter it notes that it confirms that the primary applicant would be employed full-time as soon she finishes study in Australia and will receive an annual income of 180,000 Mauritian rupees. The Tribunal queried what the exchange rate of that salary would be and the primary applicant advised that there is Rs 30 to every Australian dollar. The Tribunal noted that the salary in Mauritius of Rs.180,000 would convert to approximately AU$6000 for an annual income. The Tribunal noted its concern that in Australia the applicant has been earning a substantial income which would be significantly more than the income that the applicant would receive if she returned to Mauritius and the income in Australia would be an incentive to remain in Australia. The primary applicant stated that the cost of living in Australia is high and that with the cost of living in Mauritius she would have better value for money and have a better standard of living in Mauritius and should also earn more money from her business that she will operate in Mauritius.

8. The Tribunal expressed its concern that the Tribunal may not be satisfied the primary applicant has an intention genuinely to stay in Australia temporarily. The primary applicant responded by stating that if the school had not closed in Thornbury then she would have finished her studies and returned to Mauritius. She stated that her son is a minor and they are only on a temporary visa. She stated that she has not returned to Mauritius due to the substantial funds that have been required to pay the fees and they would not have been able to afford to travel back to Mauritius on holidays and it was not appropriate. The Tribunal queried what ties or incentive the primary applicant has to return to Mauritius. The primary applicant stated it would be to set up a future business for her son being the coffee shop. She stated that she has friends there and family (specifically her sisters) living in Mauritius.

   Assessment

9. After having regard to the various matters above, on balance, the Tribunal is not satisfied that the primary applicant intends genuinely to stay in Australia temporarily.

10. The primary applicant has some family ties to Mauritius – her two sisters and extended family. However, her most important family members (her son and husband) are living in Australia with her.

11. The primary applicant states that will return to work with a former employer (IPEX) and then establish her own hair salon and café.

12. The Tribunal has significant reservations in relation to whether the primary applicant intends genuinely to return to Mauritius.

13. The primary applicant arrived in Australia in January 2009 and she has remained in Australia for the last seven years and has not left Australia at any time since then. The secondary applicant and their son travelled to Australia in January 2010 and have remained in Australia since that time. The applicant’s son commenced at high school after arriving in Australia and has continued in his education. The applicants have been settled in Australia for the last 6 years and have not returned once to Mauritius.

14. The primary applicant states that she maintains contact with the sisters by telephone and this is adequate. There is evidence that they were members of a Badminton club and that the service co-ordinator states there are person who miss the secondary applicant and are waiting for him to return to provide religious services.

15. The applicant has been working in Australia since at least August 2015 and earning a significant income of $900 - $1000 a week. Further the secondary applicant is also generating income each month from his deliveries. The applicants have established bank accounts in Australia and are renting a home. The Tribunal considered that the applicants have settled in Australia.

16. The primary applicant has no assets or income from Mauritius. She states that she would initially return to Mauritius and work for IPEX and then save and take out a loan to establish her hair salon and café.  However the Tribunal notes that the income the applicant would earn from her proposed employment is in the vicinity of $6,000 per annum with IPEX. This is significantly less than the earnings the primary applicant generates in Australia. Further, previously the secondary applicant was earning $80 - $90 per month plus additional income form religious ceremonies. Again the secondary applicant’s earnings in Mauritius are significantly less than he currently earns in Australia. The Tribunal considered the primary applicant has a substantial financial incentive to remain in Australia than return to Mauritius. The primary applicant indicated that she will earn more when she opens a business and that they would have a better standard of living in Mauritius. The Tribunal considered that any business income the applicant may earn in Mauritius is speculative. Further, the Tribunal also notes that previously when the primary applicant established a similar business in Mauritius it closed after 2 years due to not having income to meet the increasing rental costs. The Tribunal has reservations as to whether the applicant will generate such a level of income to sustain the costs of the applicants. In relation to the better standard of living the Tribunal accepts that the costs of living is cheaper in Mauritius, however, the Tribunal considers the substantial income the applicants are earning in Australia remain a strong incentive to remain in Australia.

17. The Tribunal also notes that it has some reservations that the applicant only commenced working in August 2015. The primary applicant indicated that she was financially supported in 2009/2010 with monies from her husband and sisters, but for most of the period she had been supported by her “sponsor’ Mr Fong who sent cash out to Australia with aircrew which the primary applicant collected. There is no documentation of these cash payments. The Tribunal had significant reservations that Mr Fong, a family friend, was sending out cash monies to Australia via aircrew. The Tribunal considered it much more likely that the primary applicant has been working in Australia and generating income to support herself, her husband and son, given her previous experience as a hairdresser and beautician in Mauritius. Further, the Tribunal notes that in the correspondence dated 17 October 2014 the EAL Co-Ordinator notes ‘Both parents have been working very hard, saving every cent to afford their son’s school fees and have sacrificed travel and contact with their family to do this.” This correspondence indicates that the primary applicant was working prior to August 2015 for the purposes of supporting her son.

18. The Tribunal considered the courses the applicant has undertaken over the last seven years and considers that the primary applicant’s most recent courses and the proposed courses are indicative of a person using the student visa process to remain resident in Australia. Firstly, the applicant has undertaken a number of courses at low cost and at a low level over seven years.  Secondly, the Tribunal notes that the applicant had qualifications and work experience prior to travelling to Australia in hairdressing. The applicant after arriving in Australia undertook three hairdressing courses. The Tribunal then proceeded to pursue studies in Management, Hospitality a, Business, and Advanced Diploma of Leadership and Management. The Tribunal has significant reservations that the completed courses of hospitality, business were pursued for the purposes of opening a hair salon and café business in Mauritius and the Tribunal has significant reservations that the proposed courses of management and leadership and management will give the applicant any further skills or knowledge to improve the prospects of the applicant’s stated intention of opening a hair salon and café. The Tribunal notes the applicant has work experience in running her own salon and another person’s salon in Mauritius. She has also undertaken a specific hair dressing management course. The Tribunal did not consider the applicant’s explanation as to why she pursued further studies in Management, Hospitality and her current courses as compelling or genuine. Rather, the Tribunal formed the view the applicant was undertaking various courses with a view to prolonging her stay in Australia under a student visa, along with her son and husband. The Tribunal notes the current application is the fourth student visa application by the primary applicant.

19. Further, the Tribunal took into consideration the statements by the school regarding the steps taken with a view to their son completing secondary school in Australia and achieving a high Year 12 score. The Tribunal is mindful this correspondence was dated 2014 and that it was comments by the teacher not the applicant. However, it is clear these statements by the school teacher were made after this fourth student visa application was made to the Department and was written clearly referring to the pending visa application- noting “I support the Teeruthroy family’s desire to remain in Australia as it would be a pity to disrupt the education of a boy who has worked so hard to achieve the current level.” Similarly, there is correspondence from the International Student Co-ordinator expressing disappointment that the visa application was refused and noting that their son is keen to complete his secondary education in Australia and continue on into tertiary studies and that the family highly values the education of their son. Similarly the Principal refer to their son who wishes to remain in Australia to complete his secondary education and continue into university education and that the school supports the family’s “very strong desire to remain in Australia as we have seen the family’s commitment to education and their child”. These statements are consistent with the other evidence, noting the primary applicant stated that she considers her son is her number one priority and the secondary applicant stated that they want their son to be well educated. The Tribunal considered that their son completing his secondary education in Australia and advancing to the tertiary education system in Australia was a strong incentive for the family to remain in Australia – noting the primary applicant’s proposed course only finishes in July 2017, but their son would complete his year 12 exams in November 2017 and any tertiary education would occur thereafter.  

20. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

21. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

22. In relation to the secondary applicants, as the primary applicant does not meet the primary criteria the Tribunal cannot be satisfied that the secondary visa applicant meets the secondary visa requirements. Therefore the decision in respect of the secondary applicants must also be affirmed.

    DECISION

23. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Miriam Holmes
    Senior Member