1500684 (Migration)

[2016] AATA 3706

1500684 (Migration) [2016] AATA 3706 (11 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pawel Rafal Kurgan
Mrs Thi Thanh Thao Vo
Miss Olivia Maya Vo Kurgan

CASE NUMBER:  1500684

DIBP REFERENCE(S):  BCC2014/237227 BCC201412372273

MEMBER:Antonio Dronjic

DATE:11 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 11 April 2016 at 3:00pm

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:

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

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

   c.VET refers to Vocational Education and Training;

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

   e.The Department refers to the Department of Immigration and Border Protection;

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

   g.GTE refers to Genuine Temporary Entrant.

3. The applicants applied to the Department of Immigration for the visas on 19 September 2014. The delegate decided to refuse to grant the visas on 2 January 2015. 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 first named applicant did not satisfy the requirements of cl.572.223 (1)(a) of Schedule 2 to the Regulations because the delegate found that the first named applicant was not a genuine applicant for entry and stay as a student.

5. The Tribunal received review application on 18 January 2015. It was accompanied by a copy of the delegate’s decision. The delegate noted that the first named applicant was granted his initial Student visa on shore on 6 October 2008 and was valid until 5 January 2009. He applied for his current student visa on the basis of enrolment in Certificate III in Accounts Administration; Certificate IV in Accounting; Diploma in Accounting and an Advanced Diploma in Accounting. 

6. The delegate further noted that PRISM indicate that the first named applicant was enrolled into four English language courses (from Certificate I to Certificate IV); Diploma in Marketing; Certificate III and IV in Information Technology; Diploma of Information Technology; an Advanced Diploma in Information Technology and an Advanced Diploma of Network Security.

7. With its hearing invitation letter of 15 January 2016, the tribunal invited the applicants to provide:

   ·A copy of the first named applicant’s current Certificate of Enrolment (COE) as required for the grant of a student visa;

   ·Documents that show that the first named applicant is currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa;

   ·Documents that show the first named applicant’s past studies in Australia, including copies of all attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to the first named applicant’s past or intended studies in Australia; and

   ·An explanation of any gaps in the first named applicant’s enrolment/s and any documentary evidence relevant to the applicant’s explanation.

8. On 7 February 2016, the first named applicant submitted the following documents to the Tribunal:

   ·COE for Certificate III in Accounts Administration set to commence on 20 October 2014 and finish on 17 April 2015;

   ·COE for Certificate IV in Accounting set to commence on 20 April 2015 and finish on 15 April 2016;

   ·COE for Diploma in Accounting set to commence on 18 April 2016 and finish on 14 April 2017;

   ·COE for an Advanced Diploma in Accounting set to commence on 17 April 2017 and finish on 13 April 2018;

   ·Letter from VICAT dated 30 January 2016 as evidence that the first named applicant completed Certificate III in Accounts Administration and is currently enrolled into Certificate IV in Accounting for which he had completed 75% of the course;

   ·Copy Certificate III in Accounts Administration with statement of results;

   ·Copy Diploma in Marketing awarded to the first named applicant on 12 July 2011;

   ·Copy Certificate IV in Information Technology, Diploma in Information Technology and an Advanced Diploma in in Information Technology awarded to the first named applicant on 22 September 2014;

   ·Completion letter issued by the VICAT dated 30 January 2016 as evidence that the applicant completed:

   Certificate IV in Information Technology from 22 August 2011 to 21 January 2012;

   Diploma in Information Technology from 22 January 2013 to 21 January 2014; and

   Advanced Diploma in in Information Technology from 22 January 2014 to 12 September 2014.

9. The applicants appeared before the Tribunal on 11 February 2016 to give evidence and present arguments.

10. The first named applicant is 38 years of age national of Poland. He is married and has one daughter who was born in November 2011. His parents live in Poland and are retired. The first named applicant does not own any significant property under his name in Poland. Before arriving in Australia in July 2006 as a holder of a subclass 457 visa, he worked at a furniture company in Poland. The highest level of education he completed in Poland was the equivalent of year 12. He stated that he was living in a small village in Poland where there are limited job and educational opportunities.

11. He was sponsored by an Australian company to work as a painter. The job was too difficult and some 18 months into his employment he resigned. In October 2008 he applied for a Student visa and by June 2010 he completed four English language courses (from Certificate I to Certificate IV). From June 2010 to June 2011 he completed a Diploma in Marketing (which included a Certificate IV in Marketing). He enrolled into marketing course as he wanted to open his own business.

12. In June 2012 he registered his own online clothes trading business in Australia. He conceded that he had no prior experience related to the sale of clothing garments. In 2009 he met his current wife in Australia while she was studding a Graphic Design course. During the past financial year, the applicants made some $2,000 from this business. His wife is working as a cleaner at various hospitals since 2012 or 2013.

13. He decided to study Information Technology courses as he needed to develop software and web page for his online business. He enrolled in Certificate III on 22 August 2011. By September 2014 he has successfully completed Certificate IV in Information Technology, Diploma in Information Technology and an Advanced Diploma in in Information Technology.

14. In 2014, the first named applicant registered a painting business. He started operating in 2015 and during the last financial year he earned approximately $40,000 from the painting business. He opened this business because he needed to earn money and it was very difficult to find employment in Australia.

15. He decided to change career path from Information Technology to accounting as he believes that accounting courses will be beneficial to both of his businesses. He stated that he intends to go back to Poland upon completing his studies in Australia and set up his own business in Poland. I noted that accounting in Australia may not be the same as in Poland, considering that different accounting regulations exist in different countries. 

16. I expressed my concerns that he is applying for a student visa to circumvent the migration program and to maintain ongoing residence and employment in Australia. I asked the applicant why he did not study accounting in Poland. He provided no explanation.

17. He stated that, since arriving in Australia in 2006, he travelled out of Australia in 2010 to Vietnam for five days only. He did not travel back to Poland and his parents are currently in Australia as visitors.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

20. 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)     …

21. 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.

22. 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.

23. The first named applicant’s stay of more than  seven years in Australia as a holder of a student visas, the number of courses he commenced and completed, educational achievements and diverse fields of education is pointing clearly to the factors in the Minister’s Direction No.53.

24. I have considered the first named applicant’s academic qualifications and how they relate to his stated career path. He changed courses and career paths from Marketing to Information Technology and to the Accounting field. Some courses were relatively short and relatively inexpensive. I find that the applicant’s decision to study an Advanced Diploma in Accounting after completing the Diploma in Marketing and an Advanced Diploma in Information Technology is irrelevant to his previous qualifications or stated career path. On the basis of the information before me I find that the first named applicant has not provided clear or adequate reasons for why he wishes to study the proposed courses or how will these courses fit within his career plan or lead to further remuneration in his home country or a third country.

25. I have considered the first named applicant’s immigration and study history in Australia. I had regard to the period of time the first named applicant has spent in Australia. He has been in Australia for almost 10 years. He did not travel back to Poland since initial arrival in July 2006. He does not own property in Poland. According to his oral evidence, job prospects are limited in the small village where he lived before arriving in Australia. His parents are retired and he has no siblings in Poland. Both he and his wife are working in Australia. The applicant registered and has been operating two businesses in Australia.

26. I am not satisfied on the evidence before me that he has a strong incentive to return to Poland. My concern about his study history and courses he continues to propose to study and the significant period he has spent in Australia inclines me to the view that he has established a stronger incentive to remain in Australia. To his credit, he has completed courses he was enrolled into.

27. My concern is that he is applying for a student visa to circumvent the migration program and to maintain ongoing residence and employment in Australia. Remaining in Australia is a legitimate aspiration for many international students after completing their studies in Australia. The appropriate way in which to explore such an option is through seeking a different visa to remain in Australia temporarily or permanently. The continued use of the student visa when it rises reasonable questions regarding the genuine student criterion is not.

28. I have formed the view that the first named applicant has undertaken and is now proposing to undertake relatively short and inexpensive courses for the purpose of maintaining ongoing residence in Australia.

29. On the basis of the above, and having considered the first named applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the first named applicant intends genuinely to stay in Australia temporarily. Accordingly, the first named applicant does not meet cl.572.223(1)(a).

30. The Tribunal has found the first named 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 first named 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 first named applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the first named applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

31. The Tribunal also affirms the decision not to grant the second and the third named applicants a Class TU visa as there no evidence that they meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 572 visa and there is no evidence that they meet the primary visa criteria in their own right.

    DECISION

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

    Antonio Dronjic
    Member