1419837 (Migration)

[2016] AATA 3334

1419837 (Migration) [2016] AATA 3334 (22 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mikel NANOS

CASE NUMBER:  1419837

DIBP REFERENCE(S):  BCC2014/1459120

MEMBER:Miriam Holmes

DATE:22 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 22 February 2016 at 10:27am

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).

2. The applicant applied to the Department of Immigration for the visa on 13 June 2014. The delegate decided to refuse to grant the visa on 19 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 because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 15 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.

5. The applicant was represented in relation to the review by his 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 had regard to the following matters in assessing whether the applicant intends genuinely to stay in Australia.

12. The applicant was born in 1979 in Greece, he is 36 years old and is a citizen of Greece. The applicant married in 2004 and has one child. The applicant’s wife and child reside in Greece. The applicant also has one sister and his parents reside in Greece.

13. The applicant completed high school in 1995 in Greece. The applicant undertook no further formal training or tertiary studies in Greece but commenced working.

14. The applicant stated that as he lived on the Greek island of Corfu his patterns of work depended on the season. He would work full-time six or seven months in the summer season and worked part-time in the winter season. He stated this was his pattern of work for his entire working career in Greece.

15. Between 1996 and 2000 the applicant worked part-time as a carpet cleaner. In that period he also worked part time as an assistant cook (charcoal grill) at the Bouzis Charcoal Grill premises on Corfu. The applicant stated that he did not work in the charcoal grill during the winter season.

16. Between 2000 and 2002 the applicant worked as a as a truck driver on Corfu delivering soft drink beer and wine for Cover Paipetis Pty Ltd.

17. Between 2002 and 2006 the applicant worked as a cook at a charcoal grill on the island of Corfu. In the original resume lodged with the Department the applicant stated that he worked as a cook at the Charcoal Grill Zahos in that period although in the resume lodged with the Tribunal he described himself as the head chef at Charcoal Grill Zaxos. The applicant told the Tribunal that in that period he worked full-time at the charcoal grill, as he was also working assisting at the front of house and promoting the shop.

18. Between 2007 and 2012 the applicant stated that in the summer season he worked as a driver and that in the winter season he also worked as a charcoal cook. The Tribunal notes that in the resume lodged with the Department and the Tribunal the applicant listed the applicant’s position as a truck driver with Mythos Beer Vlahapoulos Pty Ltd.  There was no mention of any employment as a cook. The Tribunal queried why in the resume he had only listed one position in that five-year period when his evidence was that he had worked in two different occupations. The applicant stated that because his insurance cover and his superannuation were based on him being classified as a truck driver and therefore he listed that occupation. The applicant also noted that the resume that was provided to the Department was prepared by a friend who had brought him to Australia.  His other employer in that period was Bouzis Charcoal Grill.

19. Between 2012 and 2014 the applicant was employed as head chef at Bouzis Charcoal Grill. In Greece the applicant stated he was earning approximately €900 per month as a cook. He noted this was because he had a lot of responsibility and he had more responsibility than others. He said he was paid this money by Mr Voulgareos. The Tribunal queried why the applicant had listed in his resume the charcoal grill employment from 2012 until 2014 rather than the truck employment. The applicant stated that in 2012 he quit his driving job because he was excelling in the other field in cooking and he wanted to try and get into the cooking sector and that’s why he came to Australia to delve deeper into that career.

20. On 1 May 2014 the applicant arrived in Australia on a visitor visa. The Tribunal queried why the applicant listed that he was a truck driver on his arrival card to Australia.  He stated that in Greece he was classified for superannuation purposes and government benefits as a truck driver. When he read the question he did not know he was supposed to list his current employment, rather he listed the employment for which he was classified as in Greece.

21. The Tribunal asked the applicant why he came to Australia. The applicant stated that he came to Australia to learn English. He stated that he wanted have better English and he could not learn English in Greece as it was extremely expensive to study English in Greece. The other reason he came to Australia was to improve himself and to try and obtain a certificate or qualification from Australia to be able to have better opportunities in the field of hospitality, in both hotels and in the types of shops like the charcoal grill. The applicant stated that he had been told that in Australia, it is English-speaking and the opportunities are better for developing his career in the hospitality sector in Australia.  The Tribunal queried whether his purpose was to work in Australia and to better his career in Australia. The applicant responded no, that he was seeking to obtain a better education in Australia in the hospitality field so he could obtain a diploma. The Tribunal queried why the applicant did not study in Greece. The applicant stated that he did not have the financial ability to be able to continue studying in Greece and when he was young he wished to increase his finances and did not look at education. At that time, he worked so he could save a lot more money. The applicant also indicated that his family was not financially able to continue supporting him to study. The Tribunal confirmed with applicant that he came to Australia to learn to study and to study in hospitality.

22. The Tribunal noted that his evidence regarding his purpose and travel to Australia was more in line with the purpose of a student visa not for the purposes of a visitor visa and queried why he travelled to Australia on a visitor visa instead. The applicant responded that a person (a friend) brought him over. He had met this person on Corfu who said to the applicant to come to Australia and see how Australia works, and to see how his friend’s shop works in Australia. The applicant said the person asked him because the applicant was good at what he did in Greece and that’s where they met. The applicant stated that the person in Australia was interested to see if they could open up a shop similar to what they had in Australia in Greece. So the initial point in coming to Australia was to see how the friend’s shop worked in Australia. The Tribunal noted that when the applicant was initially asked why he came to Australia he made no reference to the other person who was operating a shop in Australia. The applicant stated that he was sorry, and that he misunderstood, that he did not mention it earlier, it was through the gentleman who asked him to come to Australia and to look at the shop, that’s why he originally came to Australia.

23. The applicant stated that the friend who was a shop owner paid for the applicant to come to Australia and also paid for his accommodation and daily expenses for the first six months. The applicant stated that he worked for his friend for a very short time. He said in the first three months he did not work, though he familiarised himself with his friend’s business. The applicant stated that due to his visitor visa conditions, he was unable to work in the first three months. However, later when he put in his application on 13 June 2014 to get the student visa he had the opportunity to start working so he commenced working.

24. The applicant stated that after working for his friend, he then went and worked at Stalactites restaurant as a sous chef for 5 to 6 months. He stated that he worked part-time and earned between $850 and $870 per week.

25. He stated that his Australian friend saw the applicant’s capabilities and that he was good at what he did in Corfu, and that is why the applicant tried to apply for a student visa so that he could obtain a certificate or diploma in Australia. The applicant stated that he was not able to obtain such a visa, so he commenced working a few hours until June 2015 whilst in Australia. The applicant stated that his representative advised him that he could not work on his current bridging visas that he was on and so he ceased working in Australia in June 2015.

26. The applicant stated that his wife is working as a chef in Greece and was working at the time he left to travel to Australia. He stated that her income is approximately €800 per month. The applicant stated that she has worked throughout the summer season and that this current season work is finishing. The Tribunal queried whether she only worked in summer and he said in her very first year she only worked in the summer season, however because she is a good cook she has been kept on for this winter season.

27. The Tribunal noted that it did not have any documents verifying his wife’s employment history or the applicant’s employment history and queried if there was any reason why no such documents had been provided. The applicant stated there was no reason they had not been provided.

28. The Tribunal notes that when the applicant lodged his student visa application that he planned to complete a Certificate IV in English Language, a Certificate III in Business and a Certificate IV in Business and a Diploma of Management between June 2014 and February 2016. The Tribunal noted that the first course was due to commence in June 2014. The representative advised that the applicant has not undertaken any study in Australia. The applicant stated that he was stopped and was unable to study, and was told that he would have to wait for the outcome of his student visa application. He stated that the woman at the reception of the school where he enrolled had advised him this. The representative stated that he does not have instructions that the applicant has started school. The applicant has only obtained confirmation of enrolment and has recently obtained fresh confirmation of enrolment documents because the original enrolments were for courses that were due to start in June 2014, and he did not commence the proposed course. The applicant stated that he has obtained course outlines but not undertaken any course of study.

29. The applicant provided to the Tribunal new confirmations of enrolments in a Certificate IV in English Language, a Certificate III in Business and a Certificate IV in Business and a Diploma of Management from November 2015 until April 2017. The latest confirmation of enrolment was for an English course which was due to commence in November 2015, however he told the Tribunal he had not commenced this course as at the day of hearing in December  2015. The applicant confirmed that he had not started studying a course as yet in Australia. The Tribunal noted that it could not see any reason why the applicant has not studied any course whilst the applicant has been in Australia as there appears to be no restrictions on his bridging visa. The applicant stated that he was not aware that there was no restriction and he was not aware that he was able to study. He stated that he would go tomorrow if he knew that there was no condition stopping him studying. The representative submitted that he undertook a visa status check and there was no restriction on the applicant undertaking study. However, the representative submitted that he had spoken with the Department approximately 2 months ago about the applicant and the Department advised that the applicant could only take up to 3 months study consistent with the visitor visa conditions that had been imposed on the applicant arrived in Australia. The Tribunal queried why it was only two months ago that the representative checked whether the applicant was able to study and the representative noted that the school had advised the applicant he was not allowed to study as he had no student visa and this prompted the representative to ring the Department to seek advice as to whether there was any restriction regarding study and that the advice was given that the applicant was only able to study up to 3 months study and not beyond. The applicant told the Tribunal that he wanted to study, but he was told by the course provider that he was not able to study because he did not have a student visa.

30. The applicant stated that he has been financially reliant on his brother and has little money left from Greece to meet his expenses since he ceased work in Australia.

31. The Tribunal queried whether the applicant had ever been unemployed in Greece and the applicant responded yes that he had been unemployed in the winter season. The Tribunal had regard to the tax returns lodged by the applicant. The applicant confirmed that there were periods of unemployment and this was during the winter season when he received unemployment benefits. The Tribunal notes that in the 2013 tax return the applicant declared unemployment benefits of €3081. The Tribunal noted that in the 2014 tax return the applicant had declared taxable income of approximately €3000. The applicant confirmed this was correct and this was the amount he earned for the year -  he earned €500 a month for six months. The Tribunal notes this is inconsistent with the applicant’s earlier evidence that he earned €900 per month. The Tribunal noted that his 2014 tax return was for the year before he travelled to Australia and demonstrated a low income. The applicant confirmed that the tax return was for a full year’s income. The Tribunal noted that the 2014 tax return indicated that the applicant’s wife had received €4800 in unemployment benefits in 2014.  The applicant responded that his wife earned more than him and she earned their income in that period.

32. The Tribunal noted that the unemployment rate in Greece is 25%, and that for females the unemployment rate is higher than males, and that according to the departmental information 30% of Greek population lives below the poverty line (which is less than €6000 per annum)[1]. The Tribunal queried whether the applicant had come to Australia in order to support his family due to the low income that he was generating whilst in Greece and the low income he earned in 2014. The applicant stated that the wage of €500 per month did not include the tips that he received but he does receive good tips. He stated that his objective in coming to  Australia was to learn as he needs to learn. He stated that if he has a diploma or certificate setting out education in the field, then it would give a lot more opportunity in Europe and Germany to be able to work a lot more and to obtain easier employment. He stated that English was an international language and he needed to be able to communicate in English to work in other European countries. He stated that later on he may open his own shop and that he needs to learn the English language.

    [1] See see The Economist “Greece economy:-Quick view – unemployment drops, but remains a blight” 7 October 2015

33. The Tribunal queried why the applicant was not undertaking any cooking training whilst in Australia. The applicant stated that he needed papers to progress and he does not have any qualifications currently. The applicant stated that he needs to prove that he does know various matters by having an education. He stated that even though he had worked many years, and he knows about his field, and knows it quite well he still needs to obtain qualifications.  The Tribunal queried how a Certificate IV in Business and a Diploma of Management would assist the applicant. The applicant stated that a management certificate would be very useful to learn of other things about how businesses are run and will also open his eyes to other things as well.

34. The Tribunal queried the applicant as to what his plan would be if he obtained the proposed qualifications. He stated that he would have to have good health. He stated that as soon as he finishes, he hopes to obtain the certificates and then be able to return to his family to start with the knowledge to develop further. When queried if he had any other plan he said no. The applicant stated that if he went back to Greece with qualifications then the documents would prove that he had done the course and he believes he could obtain a job in a four or five star hotel. The Tribunal queried how he knew he would get a job in a four or five star hotel and the applicant stated because the experience he had in the field working for the last 18 years he believes that would count a lot as well. The Tribunal noted it would seem that he was suggesting that his experience in the field would be the telling factor in obtaining employment and he replied no that the paper would also show his studies.

1. The applicant stated that he has his father’s family home in Greece and that is where his wife lives. He does not have his own home. The applicant stated that he has savings in Greece that he has accumulated over the many years of working. The applicant stated that his brother has been supporting him since June 2015, when he finished working. Although he stated that his brother is only supporting him a little and not totally, and his family being his mother, father and wife also support him. The applicant’s younger brother travelled to Australia with the applicant and the applicant’s younger brother was granted a student visa after arriving in Australia on a visitor visa.

2. The Tribunal asked the applicant if the student visa was granted whether the applicant will bring his wife and child to Australia and the applicant replied no, not at this stage, although things could change, he does not know.

3. The Tribunal expressed its concern that it may not be satisfied that the applicant is a genuine temporary entrant given the economic circumstances in Greece and high unemployment rate, the low income that the applicant and his wife earned in Greece prior to his arrival in Australia, that he is earning more in Australia than he did when he was in Greece and that he has not undertaken any study whilst in Australia. The applicant stated that he wished to progress himself and that he needs qualifications and he would like to do that in Australia.

4. The representative made numerous submissions. He submitted that the applicant’s statement of purpose and the statement lodged with the Tribunal are consistent that the applicant came to Australia at the invitation of the person who wished open to business in Corfu and that was the purpose when the applicant came to Australia – it was not to work or to study. He submitted that the applicant has been consistent in this evidence. He stated that the applicant has provided an explanation as to why he listed truck driver on his travel card and that was because that was his registered occupation in Greece. The representative said there was conflicting evidence regarding the ability of the applicant to start the course in Australia - he said the evidence from the bar table was that they made enquiries of the Department and were advised that the most he could undertake was three months study. As a result of this advice the applicant ceased working in June/ July 2015 because the bridging  visa condition was that the applicant could not work. Further the representative indicated it is  the culture and custom and practice of the Department that a bridging visa when granted reflects the previous conditions on the previous substantive visa held by the applicant. The representative submitted that the applicant wished to be better off and that’s why he was seeking to learn English. The applicant said that yes the conditions in Greece were tough, the applicant had been working front of house and this is an opportunity for him to improve his position to secure employment in a 4 or 5 star hotel. He commented simply because the conditions in Greece were poor did not mean that all applicants from Greece were not genuine in coming to Australia to study. He stated that the applicant had no ulterior purpose and the applicant could apply for a student visa offshore from Greece and be granted the visa as Greece is an assessment level one country.

5. After carefully considering 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.

6. The applicant has family ties in Greece – his parents, wife and child. He has not returned to see them since May 2014 when he arrived in Australia. The applicant travelled to Australia with his younger brother. Both brothers travelled to Australia on visitor visas and then applied for student visas when they arrived. The applicant applied for a student visa within 6 weeks of The applicant’s student visa application was refused, although his brother’s student visa application was granted. The applicant does have a family tie in Australia. The Tribunal is also mindful that if a student visa was granted, the applicant could apply to bring his wife and children to Australia to join him in Australia as members of his family unit. 

7. The Tribunal considered the applicant has a very strong financial incentive to remain in Australia and this factor indicates the applicant does not intend genuinely to stay in Australia temporarily. The unemployment rate in Greece is approximately 25% (as at July 2015) and Greece has in recent years been suffering a severe economic crisis affecting its economy. In the period before travelling to Australia, the applicant worked and lived on Corfu and had approximately 18 years experience working as a cook – specialising in charcoal grill restaurants. This work however was not full time during the period of his career in Greece and he often worked only in the summer season. Consequently, he undertook other employment as a carpet cleaner and tuck driver. In 2013 the applicant declared that he received €3000 in unemployment benefits and he had a taxable income of €4800 and his wife had a taxable income of €6400. In the 2014 tax year the applicant earned a taxable income of approximately €3000 and his wife received €4800 in unemployment benefit. It is apparent that their family income was low in 2014 – noting the Government information indicates that income below €6000 is indicative that a person in Greece is living below the poverty line. The Tribunal considers the applicant’s economic situation prior to arriving in Australia and the unemployment rate in Greece due to the economic crisis indicate that there was significant economic incentive for the applicant to travel and work in Australia. Since the applicant arrived in Australia he has worked both for his friend and Stalactites restaurant and he states that he was earning $850 - $870 per week when working at Stalactites. The Tribunal considers the ability of the applicant to generate significant income in Australia is a strong incentive to remain in Australia. 

8. The applicant states he has not worked for the entire period he has been in Australia, but relied on his brother and family – although there is no other evidence of the financial support from family members.

9. The applicant states he tried to apply to study in Australia but he was unsuccessful. He then however applied to travel to Australia as a visitor. In the statement of purpose and statement to the Tribunal he says he travelled to visit a friend’s food shop in Australia, with a view to his friend seeking advice about establishing the same type of business on Corfu. There is no information available to the Tribunal from this friend. Yet at the hearing, when initially asked about the purpose of his trip to Australia, the applicant clearly stated that the applicant travelled to Australia to learn English and improve his career prospects by studying and obtaining qualifications. The Tribunal did not accept the evidence that the applicant travelled to Australia to assist his friend in assessing an investment opportunity in Greece and the Tribunal does not accept the intention was to study in Australia and learn English and study business and management.  

10. The applicant has no history of undertaking any further education or training after leaving secondary school. The applicant has not at any stage taken up any education in Australia despite being enrolled in courses since June 2014 and being in Australia for 18 months. Rather, the applicant has taken the opportunity to work in Australia – he worked at his friend’s food shop and then he worked at Stalactites. There has been no restriction on the applicant’s bridging visa prohibiting him from study. The Tribunal did not find the applicant’s reasoning for not studying in Australia persuasive.

11. Further, the Tribunal is not satisfied the proposed courses would enhance the applicant’s prospects of obtaining employment in Greece or Europe. The applicant has enrolled in business and management courses but could not explain in any detail to the Tribunal how these courses would enhance his employment prospects. The Tribunal considered the applicant was vague in response to the questions regarding the relevance of these courses to his future employment prospects.  The applicant lives on Corfu and has done so for many years, and on his own evidence the most significant factor in obtaining possible employment in a 4 or 5 star hotel (as he suggested was a possibility) is his many years of work in the hospitality industry. In the statement of purpose the applicant referred to establishing his own business in Greece, however the applicant made no mention of this during the hearing.

12. The representative referred the Tribunal to other Tribunal decisions. As noted at the hearing, these other Tribunal decisions are not binding, and the assessment of whether a person meets the genuine temporary entrant criteria in cl.572.223 is based on the specific facts of the case before the Tribunal.  

13. 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).

14. 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

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

    Miriam Holmes
    Senior Member