1417949 (Migration)

[2015] AATA 3027

1417949 (Migration) [2015] AATA 3027 (8 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr VIMALKUMAR AKA VINODKUMAR PATEL

CASE NUMBER:  1417949

DIBP REFERENCE(S):  BCC2014/2599339

MEMBER:Mara Moustafine

DATE:8 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 08 July 2015 at 5:15pm

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 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

2. The applicant applied to the Department of Immigration for the visa on 6 October 2014. The delegate decided to refuse to grant the visa on 28 October 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 visa on the basis that the applicant did not satisfy the requirements of cl.572 of Schedule 2 to the Regulations because he was not satisfied that the applicant genuinely intends a temporary stay in Australia as a student.

4. The applicant appeared before the Tribunal on 10 March 2015 by teleconference to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, who also attended the hearing by teleconference.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

6. 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)     …

7. 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.

8. 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.

9. The delegate's decision record, a copy of which the applicant provided to the Tribunal, indicates that he arrived in Australia on 20 November 2013 as the holder of a Higher Education Sector Class TU subclass 573 Student visa that was granted until 30 March 2016 on the basis of streamlined visa arrangements, as the applicant was enrolled in eligible Higher Education Sector courses of study at an approved education provider – English Language Programs (l8 November 2013 to 07 February 2014); and Master of International Tourism and Hotel Management (10 February 2014 to 30 January 2016) at Southern Cross University (SCU).

10. According to the Provider Registration and International Student Management Systems (PRISMS), the applicant's enrolment in Master of International Tourism and Hotel Management was cancelled on 7 July 2014 as the applicant failed to re-enrol and his last recorded day of study was 31 May 2014.

11. On 6 October 2014 the applicant applied for a Student visa subclass 572 to undertake Vocational Education Sector courses – Certificate IV in Commercial Cookery (18 August 2014 to 8 November 2015); and Diploma of Hospitality (7 December 2015 to 7 November 2016).  However, according to PRISMS both of these enrolments were cancelled on 8 October 2014 and there was no evidence of the applicant holding any current enrolments.

12. The delegate concluded in his decision of 28 October 2014 that the applicant did not meet the genuine temporary entrant criterion, giving strong weight to applicant's circumstances and adverse immigration history as follows:

    a.The applicant was initially granted a Higher Education Sector Class TU subclass 573 Student visa based on his intention to study a Masters degree at an eligible education provider under the student visa streamline arrangements. However, after completing less than 4 months of the Masters degree, the applicant cancelled his enrolment and applied to study significantly cheaper courses at the Certificate IV and Diploma level at an education provider that was not eligible under the streamline arrangements. Such a change in pathway within such a short period of time indicated the applicant's intentions were not that of a genuine student.

    b.The applicant failed to comply with condition 8516 of his previous Student visa, which required the holder to continue to be a person who would satisfy the primary or secondary criteria, as the case required, for the grant of the visa. As the applicant cancelled his enrolment in the Masters degree and had applied to study courses at the Vocational Educational Sector level, he failed to comply with condition 8516 of his Student visa. This resulted in the cancellation of his TU subclass 573 Student visa on 7 October 2014.

13. On 9 March 2015, ahead of his hearing the applicant’s adviser provided to the Tribunal a statutory declaration explaining his personal circumstances and making the following relevant points:

    a.He completed a Bachelor of Business Administration at Gujarat University in April 2012.

    b.His initial plan was to study an Masters of Business Administration (MBA) in Australia but his education agent advised him to do an English program at SCU before starting the Masters in International Tourism and Hotel Management as his IELTS score was below 6. 

    c.After completing his English course he started the Masters course on 10 February 2014. However, after struggling with his first three subjects and failing a number of assignments, on the advice of an agent: he decided to study Commercial Cookery; but did not get a release letter from SCU as he had completed one semester. The agent lodged his TU 572 visa application on 2 July 2014 but told him this was refused because the Department did not believe the applicant was a genuine student; and withdrew a subsequent TU 572 application on 28 August 2014 because he could not provide relevant supporting documents in time.

    d.On 5 September 2014, the applicant was given a Notice of Intention to cancel his visa. The agent helped him prepare a submission to the Department, which he does not dispute, but said he could no longer act for him.

    e.He is seeking a second chance, as he was victim of a bad migration agent.

    f.He is a genuine student but was unable to study since his visa cancellation because had no study or work rights on his Bridging visa.

    g.He has applied to study for an MBA and Masters of International Tourism and Hotel Management and expects to get an offer within two weeks.

14. At the beginning of the hearing the Tribunal explained to the applicant the reasons his Student visa had been refused in the context of the Genuine Temporary Entrant criterion, noting that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant his circumstances in India and Australia, his immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 12.

15. The applicant did not provide the Tribunal with a current Certificate of Enrolment (COE), documents showing he was currently enrolled in a course or had an offer of enrolment in a registered course, as required for the grant of a student visa. He told the Tribunal he was unable to provide any documents, as he had a no study provision imposed on his Bridging Visa when his TU 573 visa was cancelled. However, later in the hearing he said he could provide COEs from Spencer College the following day.

16. The applicant told the Tribunal that on arrival in Australia, he completed his English course with a good score and full attendance, then withdrew from the Masters in International Tourism and Hotel Management at SCU after the first semester because he could not get good assessment scores and he found the course too hard. He then enrolled in Commercial Cookery and Hospitality at Spencer College. The Tribunal observed that in doing so the applicant had breached condition 8516 of his TU 573 visa as this college was not an eligible provider in the context of the student visa streamline arrangements under which his visa was granted. Noting that many students had successes and failures in the course of their study, the Tribunal questioned why a genuine student would abandon a higher degree course for a lesser course like commercial cookery after only one semester. The applicant responded that he was advised to first do Commercial Cookery then do the Masters course when he was more experienced, which is why he applied to Spencer College.

17. The applicant said he had not completed any courses at Spencer College because he lost his study and work rights in October 2014 when his TU 573 visa was cancelled. Asked if the Department advised him that he could apply to have these conditions changed, the applicant said no; although he claimed he tried to do so, but the Department refused.  He said he had been living with friends and his girlfriend of five months.  He said he did not have any family in Australia.

18. Asked about his study plans, the applicant said he had applied to study for a Masters in Hospitality Management at Griffith University under TU 573 streamlined visa arrangements, which he hoped to undertake in the next intake. The Tribunal noted that the visa application under review related to his application for a TU 572 visa to undertake a Certificate IV and Diploma of Hospitality at Spencer College; and asked if the applicant was still intending to study these courses. He responded that he wanted to do a Masters and get a TU 573 visa. 

19. As discussed with the applicant, the Tribunal has a number of concerns about inconsistencies in his evidence about his study intentions, including which Masters course he had applied for – an MBA and Masters of International Tourism and Hotel Management in his statutory declaration (paragraph 13.g) or a Masters of Hospitality at hearing (paragraph 18); why he thought he was now ready to do a Masters course, which he could not do previously, given he had not studied anything since he withdrew from that course; and why he was now applying for the Masters courses when, according to a statement to the Department dated 9 September 2014 (provided to the Tribunal by the applicant ahead of his hearing), his real interest was to study Commercial Cookery.

20. The applicant responded that he wanted to do the Masters level course (unspecified) because the Department told him Commercial Cookery was not available under streamlined visa arrangements; that he would now try hard and study well as he had learned how to do assignments and use the proper referencing style, which had been problems for him previously. As discussed with the applicant, in light of his evidence above, as well as his comment in the 9 September 2014 statement, that he was prepared to select a bachelor level course relevant to his hospitality subject to maintain his TU 573 status, in the Tribunal’s view, his interest in staying in Australia overrides his interest in any particular course he might pursue.

21. In terms of his future plans, the applicant said that if he got a good job in Australia, he would do this job and would then go to India to work in a hotel or open his own business. He confirmed that, as noted in his 9 September 2014 statement, he is assured of a position as restaurant manager at Indian Whisper Restaurant on the Gold Coast after he finishes his course and plans to work there during the Commonwealth Games in 2018. He said the manager at the hotel where he previously worked in India assured him of a job when he gets his higher degree and gains some experience; and that this job offer stands, even if he does not return for four years. The Tribunal is sceptical about the solidity of such an open-ended offer in the face of changing economic circumstances. While the presence of the applicant’s family in India provides some incentive for him to return there, the Tribunal considers that this may be outweighed by the applicant’s positive job prospects in Australia, where he has indicated that he has supportive friends and a girlfriend.  

22. As discussed at hearing, in order to be considered for a student visa, an applicant must be studying or have an offer of enrolment. While the applicant indicated that he is no longer interested in studying commercial cookery and wants to pursue a Masters at Griffith University, he did not provide any offer of enrolment from them, either at the hearing or in the three months since, although he told the Tribunal that he had applied to Griffith University the previous week and would have a response in two weeks; and subsequently provided an email from the university confirming that he had applied to study an unspecified course. The Tribunal is not satisfied that the applicant has an offer of enrolment to undertake a Higher Education course at Griffith University.

23. The Tribunal has had regard to the COEs from Spencer College for the applicant to study Certificate IV in Commercial Cookery and Diploma of Hospitality, which were submitted to the Tribunal on 11 March 2015, as promised at the hearing. In view of the Tribunal’s concerns about the applicant’s study intentions discussed at paragraphs 19 and 20, the Tribunal does not attach weight to these COEs.

24. In the Tribunal’s view, its concerns as outlined above, including the applicant’s adverse immigration and study history, including the breach of condition 8516 of his previous visa; his change of courses from Higher Education Sector Masters in Tourism and Hotel Management with an approved provider to a Vocational sector course in Cookery after just one semester; and his apparent wish to shift back to a Higher Education Sector course in order to be eligible for streamlined visa arrangements; raise the Tribunal’s concerns as to whether he is a genuine applicant for entry and stay as a student in Australia.

25. On the basis of all the evidence before it, 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).

26. 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.

    DECISION

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

    Mara Moustafine
    Member