1419026 (Migration)

[2015] AATA 3390

1419026 (Migration) [2015] AATA 3390 (19 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrej Todorov

CASE NUMBER:  1419026

DIBP REFERENCE(S):  BCC2014/2938594

MEMBER:Mara Moustafine

DATE:19 August 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 19 August 2015 at 11:10am

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 5 November 2014. The delegate decided to refuse to grant the visa on 7 November 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.573.223 of Schedule 2 to the Regulations because she was not satisfied that the applicant genuinely intends a temporary stay in Australia having regard to his circumstances, immigration history, and other relevant matters. The applicant provided a copy of the decision record to the Tribunal.

4. The applicant appeared before the Tribunal on 17 August 2015 to give evidence and present arguments. 

5. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573.

7. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(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 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.

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 delegate's decision record, a copy of which the applicant provided to the Tribunal, indicates that he previously applied for a Vocational Education Sector Student TU subclass 572 visa offshore on 28 August 2013. This visa was refused on 22 November 2013 as the applicant failed to meet the genuine temporary entry (GTE) criterion.  Since then the applicant was granted a Visitor visa subclass TV 651 and had spent 534 days in Australia over 15 months.

11. On 5 November 2014 the applicant applied for a TU subclass 573 Student visa to undertake the following courses over a period of four years: General English, English for Academic Purposes 1 and 2 and Bachelor of Business.

12. In a letter in support of his application, the applicant stated that:

    a.He wanted to study project management as this was related to his overseas degree in Mechanical Engineering and would enable him to learn advanced project management skills to be able to manage big, complex projects at an operational level; and had been advised by the Academic Director to undertake further English studies to improve English skills.

    b.He came to Australia in 2012 on a subclass 651 visa and booked a cruise ship from Australia to New Caledonia and Vanuatu. When leaving for New Zealand in May 2013 he found out at the airport that he had overstayed and was unlawful; and was advised to leave Australia and reapply for a new visa from his home country.

    c.He then reapplied for a visitor visa to come to Australia to continue his travels. He also managed to study English and after some encouragement he decided to continue studies in Australia.

    In her decision of 7 November 2014 the delegate expressed concern that, due to his previous study and immigration history, the applicant might be using the Student Visa Program to maintain ongoing residence in Australia circumventing the intentions of the migration program. Factors she highlighted included that:

    a.The applicant's statement of purpose was generic and he had not addressed how the proposed courses were relevant to his academic and/or employment background; indicated his plans upon completion of the intended courses or how an overseas qualification would assist him in attaining this goal.

    b.His intended course of study in Australia was inconsistent with his educational and employment background and showed no clear pathway. He was previously enrolled to study Information Technology (IT) courses, which he did not commence.

    c.He had not demonstrated a consistent, ongoing or stable employment history in his home country. According to Departmental records, while he undertook some work for his cousin while living in Bulgaria, he was not officially employed. He returned to Slovakia in 2010 and had been unemployed since that time. On this basis, he had little or no employment incentive to return to his country upon completion of studies.

    d.He did not provide a detailed or convincing testimony as to how an Australian Bachelor degree would assist him in achieving his goal in comparison to a qualification that could be acquired domestically. She did not find compelling cause for the applicant to have travelled to Australia at significant expense to pursue the proposed study when the career goals could be adequately served in Slovakia.

    e.The applicant had spent over 500 days in Australia as a visitor. Departmental records indicated that he had an exclusion period as he overstayed while on his Visitor visa, although he claimed that there was an administrative mistake as he departed Australia on a cruise ship within the visa validity.

13. Having considered his personal circumstances, immigration history, the lack of value of the course to his future goals and the comparatively greater economic and employment opportunities in Australia, the delegate concluded that the applicant was not a genuine applicant for entry and stay as a student and that he intended to stay in Australia temporarily but was using the Student visa program to circumvent permanent migration programs.

14. On 12 August 2015 the applicant’s representative provided to the Tribunal a submission in support of his application for review and supporting documents, including current Certificate of Enrolment in his proposed course of study for Bachelor of Business.

15. In his submission the representative stated that:

    a.The applicant completed his qualification as a Mechanical Engineer in Europe in 1997, then worked as a sales representative for Transcom Technic from 1998 and as Sales Manager for Messer TatraGas. In early 2007 he moved to Bulgaria to care for his ailing grandmother until her death in June 2008, upon which he inherited Euros 30,000 (AUD45,000). He then worked for his cousin’s construction company in Bulgaria as a project manager until 2011. 

    b.In 2012 the applicant decided to travel the world and visited Australia several times for a few months, also taking Pacific cruise trips. He also undertook a few weeks of English language studies. 

    c.He decided to study in Australia since he had become ‘familiar with the country, culture and safety of life in Sydney’.  He chose to study Project Management, a field in which he had worked for several years in Bulgaria.  On the advice of a local Slovakian education agent he enrolled in Certificates III and IV in Business. However, his student visa application was refused on GTE grounds. He believes this was because of poor advice by the education agent regarding the course in which he enrolled.

    d.Shortly after this refusal, he was granted another Visitor visa and arrived in Australia in 2014 in order to select a better school and study program.

    e.He successfully completed his ELICOS studies on 10 July 2015 and started his degree program on 6 July 2015.

    f.He has never overstayed his visa, never engaged in work and always complied with his visa conditions.

    g.He is a qualified mechanical engineer with several years of experience in a construction company as a project manager and a managerial role in TatraGas. Project Management is directly related to his past employment.

    h.As a project manager has a wide spectrum of work across many industries, it would be unreasonable to expect a student with a three year study plan to exactly pinpoint the job in which he wants to be employed after completion of his studies. As the European Union, where the applicant wants to live because his family is there, is a very dynamic business environment, he does not even know where he wants to work in Slovakia, Belgium or Austria, only that he wants a managerial role.

    i.English is the universal language for cross country projects in all these countries, which is why he has invested in studying in an English speaking country.

    j.He has incentive to return to the EU as he is heir to a vast list of family assets. His father works as a chemical engineer and his mother as a psychiatrist.

    k.He has no relatives in Australia or any other social/economic ties.       

16. At the beginning of the hearing on 17 August 2015 the Tribunal discussed with the applicant the reasons his Student visa had been refused in the context of the GTE 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 him his circumstances in Slovakia and Australia, his immigration and study history and other relevant matters, including the delegate’s concerns at paragraphs 13 and 14 above.

17. The applicant confirmed that he was currently enrolled in a Bachelor of Business in project Management.  He first came to Australia in August 2012 on a tourist visa. Most recently he arrived in February 2014.  

18. He had previously applied for a Student visa in November 2013 to study Certificates III and IV in IT but his visa was refused. Asked why he decided to come to Australia to study IT, the applicant said it was ‘the mistake’ of his education agents in Slovakia. He told them he liked Australia and wanted to study something more than he had and that building websites was his hobby. They suggested he apply to study IT.

19. The applicant said he graduated as a mechanical engineer in Slovakia in 1997, then worked as a sales representative selling measuring instruments for five years (1998-2004) and then as a sales manager for Messer TatraGas also with measuring instruments (2005-2008). He was also employed as a project manager in his cousin’s firm in Bulgaria for two years.

20. The applicant said he initially came to Australia because he wanted to learn English in an English speaking country and wanted to travel in Australia and the region. As he liked the country, he later decided to stay and get a qualification in project management, which he could use in his country. He did not want to study the course in Slovakia as it was only taught in the Slovak language.

21. Asked when he decided that he wanted to study project management, the applicant initially said it was when he was working in the project manager role in Bulgaria. However, when asked why, if this was the case, he enrolled to study IT, the applicant changed his evidence to say that it was not when he was in Bulgaria but after a few years that he decide he wanted to combine his engineering with project management to later use in Slovakia.

22. Asked what he intended to do after finishing his degree, the applicant said he wanted to work in the automobile industry in Slovakia. Although he had not yet explored job opportunities, he said he had read news articles about many new firms wishing to invest in Slovakia and it would be easier to find a job with good English. In light of his representative’s submission prepared less than two weeks ago, which stated that the applicant was not certain of what job or even what country he wished to work (paragraph 15.h), the Tribunal is not satisfied that the applicant is genuinely committed to such a career.

23. Given the applicant’s readiness to apply for an IT course at his agent’s suggestion for the purpose of obtaining a student visa to Australia (paragraph 18), rather than any genuine commitment to the course of study; and his inconsistent evidence as to when he decided to study project management (paragraph 21); the Tribunal is not satisfied that he is genuine in his intention to study and return to his country.

24. The applicant did not respond directly when asked why he would not choose to study in one of the English speaking countries in Europe, given his intended work was in the auto industry in Europe, but spoke of the love he had developed for Australia and its people after spending nine months here on his first visit. He told the Tribunal he had spent a total of 28 months in Australia since his first visit. As discussed with the applicant, the length of time he has spent in Australia further strengthens the Tribunal’s view that he might be seeking student visa to maintain residence.

25. The applicant’s inconsistent evidence as to whether he has family in Australia seriously compounds the Tribunal’s concerns about the applicant’s veracity and general credibility. When asked about this at hearing, the applicant said that he had no family in Australia and that his whole family was in Slovakia, although his parents visited him in Australia and he went on a cruise with his mother and sister. However, later in the hearing he said his younger sister, Denisa, has been in Australia for three years, variously as a student, and currently as a dependent on her boyfriend’s student visa, as they had swapped roles. The Tribunal finds disingenuous the applicant’s claim that he misunderstood the Tribunal’s question, especially given the statement in his representative’s submission that he has no relatives in Australia or any other social/economic ties (paragraph 15.k).       

26. 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.573.223(1)(a).

27. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. 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

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

    Mara Moustafine
    Member