1418118 (Migration)

[2016] AATA 4188

1418118 (Migration) [2016] AATA 4188 (21 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Anastasiia Salbieva
Mr Aleksandr Salbiev

CASE NUMBER:  1418118

DIBP REFERENCE(S):  BCC2014/28724

MEMBER:Tim Connellan

DATE:21 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 21 July 2016 at 4:26pm

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 Mrs Anastasiia Salbieva as primary applicant and her husband Mr Aleksandr Salbiev as secondary applicant 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 5 January 2014. The delegate decided to refuse to grant the visas on 21 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 visas because Mrs Salbieva did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations. The delegate  considered Mrs Salbieva’s lack of academic progress, her study history, potential circumstances in Australia, immigration history and the lack of value of the courses to her the future indicated she was using the student visa programme to circumvent permanent migration programmes and the delegate was not satisfied she was a genuine applicant entry and stay as a student who intended to stay in Australia temporarily.

4. The applicants appeared before the Tribunal on two occasions, the first on 30 July 2015. A decision was not made following the first hearing and they subsequently attended a further hearing on 12 July 2016.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. The issue in the present case is whether Mrs Salbieva 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)     …

8. In considering whether Mrs Salbieva 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.

9. 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.

10. The primary decision, a copy of which Mrs Salbieva provided with her review application, put her on notice about these issues in dispute. In the primary decision the delegate found Mrs Salbieva had unsatisfactory academic progress, had been running a business with her spouse since her arrival, indicating that her primary intention was to run a business not to be a student. The delegate found Mrs Salbieva appeared to be using the student visa programme as a means of maintaining ongoing residence in Australia.

11. She was again put on notice with both hearing invitations which invited her to provide a range of evidence. Firstly she was asked to provide “A Certificate of Enrolment (CoE) as required for the grant of a student visa”. The hearing invitations also both stated “the Tribunal will assess whether you intend genuinely to stay in Australia temporarily as required by clause 572.223(1)(a) of the Migration Regulations. Relevant to this requirement is the direction from the Minister known as Direction No.53 a copy of which is attached. Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to Direction No. 53.”

    First Hearing

12. At the first hearing Mrs Salbieva told the Tribunal she had read and understood the primary decision.

13. She said that while the economic and political circumstances in Russia were not good, they had enjoyed a good life in Russia and their children were still at school in Russia meaning she was keen to return home.

14. She said that prior to leaving Russia, she had completed both a Bachelor and a Masters degree in law.

15. She said that before leaving Moscow she had applied for a visa to study hospitality at university in Australia. She came here and following an initial English course in early 2012 commenced a Bachelor of Tourism and Hospitality at William Angliss.

16. She told the Tribunal that after first year, she was required to do 800 hours work experience. She had difficulty finding work so she and her husband decided to buy a business in which she could do the work experience.

17. She said they bought a business and took transfer of the lease of a coffee shop in a suburban shopping centre. The Tribunal told Mrs Salbieva it would like to see evidence of the purchase of the business. She responded she had nothing with her at the moment but she could provide.

18. She said the business failed because the rent was very high and there was a lack of people due to substantial renovations. The shopping centre management had asked them to do renovations at a cost of $200,000 which they could not afford so they closed the business.

19. She said she did not wish to go back to William Angliss with the same level of students around her and so had transferred from the Bachelor degree to a Diploma course at the Institute of Training and Further Education trading as Hospitality Training Australia.

20. She spoke to the department and applied for a new 572 visa to replace the 573 visa on which she had arrived.

21. She said of course she did not pay William Angliss as they don’t give money back.

22. When asked the purpose of studies, she said she was a cook and wanted to get a degree. The Tribunal observed that she did not require a degree to be a cook, but a Certificate III. Mrs Salbieva responded it was different Russia.

23. The Tribunal asked why she did not do her studies in Russia. She responded that studying overseas was much more highly regarded and the same courses were not available in Russia.

24. She said that getting qualified as a cook in Australia would enable her to earn a higher income. The Tribunal said it questioned why someone with both an undergraduate and a Masters degree in law would be seeking to train as a cook for the money.

25. She responded that in Russia it was different and she had decided that she wanted to change her life to hospitality in which she had always been involved as it had been the trade in which her father had been involved.

26. Mrs Salbieva’s husband said there was no hospitality training in Russia. He had owned and run a restaurant in Moscow and knew the circumstances there.

27. Mrs Salbieva told the Tribunal she did not know why she was at the hearing and asked why people do not believe her because she had never done anything wrong. She said she would not even ride on a tram without buying a ticket.

28. The Tribunal then provided Mrs Salbieva with information under section 359AA which it explained was important because, subject to her response may lead the Tribunal to the view that there was adverse information which would be a reason to affirm the decision under review. The Tribunal explained that once it had given her the potentially adverse information she would have the opportunity to adjourn the hearing to discuss the matter with her agent before responding.

29. The Tribunal discussed the fact that on the Department file there were a number of documents including emails from Mrs Salbieva in which she said “Today we are bankruptcy. It is true, but it is not our fault it is our trouble.”

30. Mrs Salbieva responded it was true because they had been bankrupt as the rent had been increased to $10,000 a month.... “We owe the sum of $125,000 because it was very hard to pay monthly rent of $10,000 in the shopping centre where are plenty of coffee shops and even good established businesses were shut down”.

31. The Tribunal told Mrs Salbieva it was further concerned that department notes on file referred to her having spoken to the Department about applying for a 457 visa sponsored by a business they owned, being the coffee shop. Mrs Salbieva responded saying this was a mistake and she had made enquiries on behalf of her brother. The Tribunal referred to the file and said the notes indicated it was the applicant herself who had phoned and enquired about a 457 application to be sponsored by the business they owned. The department officer advised it was not the intention of the scheme, she would need to provide evidence she had advertised the position widely, had failed to find a more suitable person than herself and the application would be heavily scrutinised. She was emailed a 457 information kit. Mrs Salbieva’s husband said that was not true and they had never applied for work visas.

32. The Tribunal told Mrs Salbieva this information raised a concern about whether she was a genuine student.

33. Offered an adjournment, Mrs Salbieva’s migration agent said there was no benefit in taking an adjournment.

34. The Tribunal ask Mrs Salbieva what she intended to do should she be granted a visa. She said she would complete current studies scheduled to finish in May 2016 following which she would return to Moscow.

35. Mrs Salbieva reiterated that having completed the first year of hospitality training she had done the required work experience in the business they owned.

36. The Tribunal told Mrs Salbieva the evidence raised questions as to whether she was a genuine student or in fact had come here to work.

37. Despite a number of questions, the Tribunal was unable to establish when they had purchased the business. The Tribunal told Mrs Salbieva it believed there would have evidence of negotiations and the purchase of the coffee shop which would show when the business had been purchased.

38. Mrs Salbieva said she had the available evidence and would provide it.

39. The applicants and their agent said they had nothing further to add.

40. The Tribunal told Mrs Salbieva it wanted to see evidence of the negotiations and purchase of the business. She was told a decision would not be made on this matter for at least two weeks and any evidence provided before the decision was made would be considered.

41. Following the hearing, the Tribunal received an email from Mrs Salbieva in which she stated: “For now I am bankrupt and I cannot operate any business in Australia for more than four years .... I want to finish my study and go back to Russia .... Please let me get my Diploma as I studied and worked really hard and spent a lot of money from this diploma .

42. Included in the email was a copy of a Record of Registration of the business name ‘Delicious Delights’ pursuant to the Business Names Registration Act dated 26 February 2013 and a Certificate issued under section 21(5)(a)(ii) of the Retail Leases Act dated 29 May 2013 received.

43. No evidence of negotiations of the purchase of the business showing when the business had been purchased were provided.

    Second Hearing

44. On 22 June 2016 the Tribunal wrote to Mrs Salbieva and invited her to attend a further hearing on 12 July 2016. The hearing invitation again requested that she provide a range of evidence including a copy of her current Certificate of Enrolment which it stated was required for the grant of a student visa.

45. In prehearing submission the Tribunal received the results of an IELTS test taken in January 2016 in which Mrs Salbieva and achieved an overall band score of 6.5.

46. Also provided was a letter from the Institute of Training and Further Education dated 29 June 2016 which said Mrs Salbieva had successfully completed the requirements for the Diploma of Hospitality. It stated she would receive a Certificate and Statement of Results upon payment of outstanding fees.

47. At the start of the hearing the Tribunal referred to the letter from the education provider and asked how much fees were outstanding. She responded she owed them $4000. When asked her intentions, she said that she would wait for the Tribunal’s decision and when granted a visa she would pay her outstanding fees, get her Diploma and apply to do a Bachelor’s degree.

48. Mrs Salbieva told the Tribunal she was not currently enrolled and did not have an offer of enrolment.

49. The Tribunal ask Mrs Salbieva what had changed from the last hearing where she stated that on completion of her Diploma she would go home to Moscow and the children. She said that she had spent so much money having come to get a Bachelor’s degree she was now keen to complete a bachelor’s degree as she wanted to be a manager. Mrs Salbieva’s husband said the world had changed and a diploma was no longer sufficient to get a good job.

50. The Tribunal referred to her previous statement in which she said, in reference to studying a bachelor’s degree, it was clear that the scope of the course was too broad and not the best option for her future employment goals and her written statement that her studies at Angliss had been enough and she did not get any new and desired information in this field. She said she was now going to study a cuisine management course.

51. The Tribunal observed that the primary decision noted her enrolment at William Angliss had been cancelled on 15 March 2014 as she failed to re-enrol and failed to pay tuition fees. Mrs Salbieva stated this was not true and said she had evidence. She referred the Tribunal to a statement of results for the Bachelor of Tourism and Hospitality Management which showed she had passed eight units in 2012 and Industry Experience in 2013. The document listed her status as “Withdrawn”.

52. The Tribunal discussed the previous hearing and the request for evidence of the negotiation and purchase of the coffee shop business. The Tribunal told Mrs Salbieva that the Business Name Registration was not the evidence required.

53. Mrs Salbieva and her husband became emotional and argumentative saying they believed it should satisfy the Tribunal.

54. The Tribunal reviewed discussions at the first hearing.

55. The Tribunal referred to Mrs Salbieva’s evidence that after she had declared bankruptcy she applied for a student visa with evidence that she had funds in her name in bank accounts in Russia. She responded, ”Yes, exactly”.  The Tribunal suggested this may raise the question of whether it was reasonable for someone to be bankrupt in Australia when they had access to substantial funds in another country. Mrs Salbieva responded that under Bankruptcy Laws she was allowed to earn $65,000 a year. Mrs Salbieva’s husband said the money in Russia belonged to his father.

56. The Tribunal on a number of occasions ask questions seeking to identify when they had the coffee shop business. It seems that the lease was entered into around January 2013 and they operated the business until around August 2013.

57. Mrs Salbieva’s husband said his lease had a monthly rental of $5200 but when they included outgoings it came to $10,000 a month.

58. He said he worked like a dog from 9 AM till 9 PM seven days a week trying to make the business work. He was told to do improvements and spent some thousands on a fit out before being told that if he wanted a new lease he would need to do a fit out using the Centre Management’s architects and designers. The cost of the fit out was to be in excess of $170,000 which he could not afford. He said they were crooks

59. Mrs Salbieva’s husband said he was now working less than 20 hours a week.

60. The Tribunal told Mrs Salbieva the fact that she was not currently enrolled or did not have an offer of enrolment was a problem.

61. She responded that she needed a visa to be enrolled. The Tribunal told Mrs Salbieva the fact she had recently been enrolled indicated that statement was implausible. She then said she needed to provide the diploma to enrol in the bachelor degree and get credits.

62. The Tribunal referred to the letter from her education provider stating she would be given the diploma when she paid outstanding fees.

63. Mrs Salbieva responded by stating “OK if I pay, you give me visa.”

64. The Tribunal told Mrs Salbieva that was not what had been said and the Tribunal process did not include doing deals. Mrs Salbieva responded that she was just trying to understand what was going on because she did not understand why she did not get a visa.

65. The Tribunal suggested she read the invitation which had requested her to provide a current certificate of enrolment or an offer of enrolment in a registered course which it stated was a requirement for the grant of a visa.

66. She said she did not have current enrolment as she had just completed a course.

67. The Tribunal repeated that a current certificate of enrolment or a letter of offer was a requirement for the grant of a student visa. Mrs Salbieva responded she would get a letter of offer.

68. The Tribunal discussed the issues of whether she was a genuine temporary entrant and the hearing invitation which had requested her to provide a statement addressing the issues in Direction No. 53. Mrs Salbieva responded she believed she had provided the required evidence in the form of the Statutory Declaration provided to the previous hearing. The Tribunal told Mrs Salbieva did not believe that her Satutory Declaration addressed the issues of Direction No. 53.

69. The Tribunal told Mrs Salbieva it would consider all the evidence received before a decision was made and would not make a decision for one week.

70. Mrs Salbieva said she wished further Tribunal communication to be directed to her rather than her agent. The Tribunal spoke to registry staff who arranged to have documents waiting for her after the hearing to have communications directed to her.

71. At the date of this decision, nine days after the hearing, the Tribunal has received no evidence that Mrs Salbieva is currently enrolled or has an offer of enrolment.

72. The evidence presented raises significant questions as to whether Mrs Salbieva satisfies the issues of Direction No.53 and intends genuinely to stay in Australia temporarily, however, to be eligible for the grant of a student visa an applicant is required to provide evidence of current enrolment or evidence of an offer of enrolment in a registered course.

1. The need for such evidence was advised to Mrs Salbieva on a number of occasions both in writing in the hearing invitations and discussed a number of times at the second hearing where the Tribunal advised the provision of such evidence was a pre-requisite for the grant of a visa.

2. With no evidence that Mrs Salbieva is currently enrolled or holds an offer of enrolment, the Tribunal is not satisfied Mrs Salbieva meets the requirements of clause 572.222 which must be met for the grant of a student visa.

3. Having found that Mrs Salbieva does not meet an essential requirement for the grant of a student visa, it has not provided consideration of other elements.

4. The application of Mr Salbiev was dependent on that of Mrs Salbieva and was made on no other basis. Having found that Mrs Salbieva does not meet the essential criteria referred to above, Mr Salbiev’s application must also be affirmed.

   DECISION

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

   Tim Connellan
   Member