1419717 (Migration)

[2015] AATA 3713

1419717 (Migration) [2015] AATA 3713 (18 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Thushara Bandaragamage
Mrs Romain Evanjalin Jansz
Master Thenuka Imeth Bandaragamage

CASE NUMBER:  1419717

DIBP REFERENCE(S):  BCC2014/2083686

MEMBER:Alison Mercer

DATE:18 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 18 November 2015 at 5:33pm

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. Where used in this decision:

   ·COE refers to Certificate of Enrolment in a course of study;

   ·PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   ·VET refers to Vocational Education and Training;

   ·A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

   ·The Department refers to the Department of Immigration and Border Protection;

   ·Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   ·IELTS refers to the International English Language Testing System.

3. The applicants applied to the Department of Immigration for the visas on 24 August 2014. The delegate decided to refuse to grant the visas on 17 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).

4. The delegate refused to grant the visas because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations. The delegate found that the applicant was not genuine temporary entrant for stay in Australia as a student, having regard to his immigration and study history and other relevant factors set out in Direction 53.  In particular, the delegate gave weight to the fact that the applicant was 36 years old, had originally come to Australia in August 2012 to undertake a Master’s degree in Engineering but had not completed this course due to unsatisfactory attendance and progress and had enrolled in a Diploma of Management in August 2014. Although the applicant claimed to have enrolled in this course because he intended to return to Sri Lanka and open his own business, the delegate did not accept this given that the applicant had high level qualifications from the UK and Sri Lanka in Mechanical and Aviation Engineering, Engineering Design and Computer Programming.  He had also already done a foundation course in Business Administration.  The delegate found that the state of the Sri Lankan economy was not an incentive for the applicant to return there, and concluded that he was using the student visa program to maintain ongoing residence in Australia.

5. The delegate rejected the applications of the second and third applicants on the basis that they did not satisfy the secondary visa criteria to be members of the family unit of a person who held a subclass 572 visa, and there was no evidence that they met the primary visa criteria in their own right.

6. The Tribunal received a review application from the applicants on 2 December 2014, which was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Mr Atul Kapoor, to be their representative and authorised recipient for correspondence for the purposes of the review.

7. The Tribunal wrote to the applicants via their agent on 22 September 2015 to invite them to attend a hearing by telephone conference on 22 October 2015.  They were provided with a copy of Direction 53 and the applicant was asked to provide evidence of current enrolment, previous courses and an explanation for any gaps in his studies at least 1 week before the hearing.

8. On 30 September 2015, the Tribunal advised the applicants via their agent that the hearing had been rescheduled to 23 October 2015 due to the Member being unable to conduct the hearing on the original date.

9. On 16 October 2015, the applicant emailed the Tribunal to request a postponement of the hearing for 2 weeks as his agent was overseas and he was waiting on financial information from his father in Sri Lanka. 

10. On 21 October 2015, the Tribunal wrote to the applicants via their agent rescheduling the hearing to 13 November 2015.  They were again provided with a copy of Direction 53 and the request to the applicant to provide evidence of current enrolment, previous courses and an explanation for any gaps in his studies prior to the hearing was reiterated.

11. Neither the applicants nor their agent appeared before the Tribunal on 13 November 2015 to give evidence and present arguments.

12. The applicants failed to attend the Tribunal hearing. They did not contact the Tribunal to explain their absence or to ask for the hearing to be rescheduled. The Tribunal sent the invitation letter to the applicants’ agent’s nominated email address, and has not received any notification to suggest that it was undeliverable. 

13. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

16. 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)     …

17. 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.

18. 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.

19. As noted, the delegate had regard to the applicant’s immigration history, study history and other factors set out in Direction 53 and concluded that the applicant did not genuinely intend to stay in Australia temporarily.  The reasons set out in the delegate’s decision (a copy of which was provided to the Tribunal by the applicants) place weight on the fact that the applicant was seeking to study a vocational level course in Management, a subject seemingly unrelated to the applicant’s previous higher education qualifications undertaken in Engineering and related technical subjects overseas, and that he had started but not completed a Masters of Engineering degree in Australia before enrolling in the Diploma of Management course.  The delegate also placed weight on the fact that the applicant’s economic situation in Australia appeared to be preferable to his one in Sri Lanka, and concluded that the applicant was using the student visa program to maintain ongoing residence in Australia. 

20. The Tribunal is satisfied, on the basis of the documentary evidence on the Department’s file, that the applicant came to Australia in August 2012 as the holder of a subclass 573 (Higher Education Sector) visa to undertake a Master’s degree in Engineering, that he stopped attending this course in February 2014 without informing the Department and then enrolled in a lower level Diploma of Management course in August 2014.  The Tribunal is further satisfied that the applicant had previously completed a Bachelor of Engineering degree in the UK in 2004, a Foundation course in Business Administration in the UK in 2006, and a  Certificate in Computer Programming in the UK in 2005.  The CV he provided to the Department indicates that he worked as a trainee Engineer in Sri Lanka in 2002, and as a Mechanical Engineer from January 2007 to July 2009, March 2011 to June 2011 and July 2011 to July 2012 in Sri Lanka.

21. The Tribunal notes applicant provided a written statement to the Department indicating that the change to the Diploma of Management course in August 2012 was stated to be ‘because [he had] always wanted to upskill [him]self to run and manage a business.’  He further stated that ‘Sri Lanka is undergoing drastic change and the need for Qualification has become very acute.  It heavily depends on foreign exchange to cope with current changes in marketing strategies… With the right experience, also I plan to get into a business in Sri Lanka, which is often rated as one of the best tourism destinations in the world.’  As the applicant did not attend the scheduled Tribunal hearing, the Tribunal  was unable to clarify aspects of this statement with him, or to get him to expand upon it in any respect (noting that he was requested to provide an updated statement prior to the Tribunal hearing date).

22. The Tribunal notes that the above statement lodged with the Department makes no reference to what kind of business the applicant planned to establish, but simply refers to the applicant wishing to set up his own independent business in Sri Lanka. The Tribunal notes at that time the visa application was made, the applicant was enrolled in a Management course course at vocational (Diploma) level.  The Tribunal finds the applicant’s explanation of wishing to undertake the Diploma of Management in order to establish a business in Sri Lanka to be vague and generic in nature.  Similarly, the Tribunal finds his reference to the fact that overseas qualifications are valued in a drastically changing Sri Lankan economy to be generic and vague and extremely broad.  The relevance to the applicant’s own circumstances is hard to grasp, given that the evidence he provided to the Department indicates that he already has overseas qualifications from the UK in Engineering and Business Administration, so there would appear to be no barrier to him returning to Sri Lanka now to establish a business if he wished to do so, and no obvious benefit to be gained from completing a Diploma in Management in Australia before doing so.  The Tribunal notes that the academic transcript from his Foundation course in Business Administration in the UK includes various subjects which appear closely related to Management of a business, such as Administration for Managers, Managerial Operational Plan, Business Modeling and Auditing, Finance Administration, and Legal Environment of Business.  The Tribunal is not satisfied that the applicant has advanced a plausible reason for why it would be necessary or beneficial for his intended plans to undertake a Diploma of Management in Australia.

23. Moreover, the applicant has not provided any explanation for why he ceased attending the Masters in Engineering course, which was the original basis for him being granted a student visa to come to Australia, particularly since he had already completed a Bachelor of Engineering course in the UK. This suggests to the Tribunal that he may have wished to enrol in a short, relatively inexpensive, unrelated course in order to maintain ongoing residence in Australia, rather than complete the more expensive Masters course in his field of previous study and employment.  The Tribunal did not consider that the applicant has provided cogent reasons as to why he changed courses and did not pursue and complete his original course. Further, the PRISMS records referred to in the delegate’s decision indicate that applicant had a reasonably significant gap in his studies from February to August 2014 for which he has not provided any cogent explanation, despite being invited to do so by the Tribunal.

24. The Tribunal notes that the applicant has not provided evidence that he completed the Diploma of Management.  The Tribunal finds no evidence that he has completed any course in Australia since arriving over 3 years ago as the holder of a student visa.

25. Limited information is available to the Tribunal regarding the situation in the applicant’s home country of Sri Lanka.  The Tribunal notes that the applicant was employed there in a professional capacity as an Engineer until mid-2012, when he came to Australia as a student, so the Tribunal considers that the economy there is not a particular disincentive for the applicant to return there.  The biodata information provided to the Department with the applicant’s student visa application does not indicate whether the applicant has parents and/or siblings in Sri Lanka, which might provide an incentive for him to return there.  However, it notes that his wife and child are with him in Australia.

26. The Tribunal has no information regarding any national service obligations for the applicant and gives this consideration little weight in assessing whether or not he is a genuine temporary entrant for stay in Australia.  Similarly, while the political situation in Sri Lanka has been volatile and at times violent for some years, the Tribunal has no evidence to indicate that the applicant has been, or would be, adversely affected, and it thus does not consider this a disincentive for him to return there.

27. After having regard to all the circumstances, the Tribunal forms the view that the applicant has established himself with his wife and child in Australia since August 2012 and that the current student visa application was lodged for the purposes of maintaining residence in Australia. The Tribunal is not satisfied taking into account the applicant's circumstances, the applicant's student history, the applicant's migration history and other relevant matters, that the applicant intends genuine to stay in Australia temporarily.

28. Accordingly, the Tribunal finds that the applicant does not meet cl.572.223(1)(a).  This means that 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 a 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 in relation to him.

29. The Tribunal also affirms the decision to refuse visas to the second and third named applicants (the first named applicant’s wife and child) as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 572 (or any other subclass within Class TU) visa, and there is no evidence before the Tribunal to suggest that they meet the primary visa criteria in their own right for any of the Class TU subclasses of visa.

    DECISION

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

    Alison Mercer
    Member