1500918 (Migration)

[2015] AATA 3942

1500918 (Migration) [2015] AATA 3942 (18 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Satvir Kaur

CASE NUMBER:  1500918

DIBP REFERENCE(S):  BCC2014/3289727

MEMBER:Miriam Holmes

DATE:18 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 18 December 2015 at 5:30pm

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 2 December 2014. The delegate decided to refuse to grant the visa on 9 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).

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 by teleconference on 16 December 2015 to give evidence and present arguments. 

5. The applicant was represented in relation to the review by her registered migration agent, although her agent did not participate in the hearing. The applicant indicated that the hearing should proceed in the absence of her 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 considering whether it is satisfied that the applicant intends genuinely to stay in Australia temporarily.

12. The applicant was born in 1974 in India, and is aged 41 years and is a citizen of India. The applicant completed her secondary school education in India and completed her Bachelor of Arts in 1998 at the Punjab University. The applicant’s parents both reside in India. Her father currently works in the government sector in a food corporation and her mother is a housewife. The applicant has one brother who resides in India. Her brother is married and resides with the applicant’s parents. The applicant has one sister who studied in England and now operates a business and resides in England. The applicant has no family in Australia.

13. Between 1998 and 2007 the applicant undertook further studies and was also employed. After the applicant completed her Bachelor of Arts she undertook further studies, and completed three Diplomas related to computers. The applicant also undertook a Masters in Arts (History). Between 1998 and 2007 the applicant was employed by a computer company and worked as a computer teacher in a school and as a computer instructor in a tertiary college.

14. Between 2007 and October 2008 the applicant worked for a generator company as an office and store co-ordinator. In this role she co-ordinated other staff to do their work. The company was involved in salvaging and repairing generators in the Punjab.

15. After October 2008 the applicant undertook studies and completed her IELTs test before coming to Australia.

16. The applicant’s plan in coming to Australia was that in India she had undertaken lots of jobs at different levels, and she wanted to study and to learn new things. She told the Tribunal that she heard about Australia and how good it was to study in Australia and she decided to travel to Australia to obtain more knowledge and learn different things from higher education, and also to get experience work and study in a different culture. She stated that she thought this would improve her personally and improve her English skills.

17. On 19 February 2009 the applicant was granted a student (subclass 572) visa until 25 July 2011. The applicant arrived in Australia on 28 February 2009.

18. After arriving in Australia, the applicant initially undertook studies in an Advanced Diploma of Tourism. She undertook this course for approximately a year until 21 March 2010. After approximately a year the applicant realised that she may not be able to obtain a tourism job, and further realised that the course was not at the correct level and she felt that she needed more skills. She had been told that there was big scope for tourism in Australia, but after being in Australia for one year she formed a different view. The certificate the applicant provided to the Department confirms that she undertook Advanced Diploma of Tourism studies until April 2010.

19. The applicant was mindful that she still had another year on her student visa and changed her mind as to what studies she would undertake. The applicant realised she could undertake further study and decided to undertake management studies. The applicant told the Tribunal that she thought that if she undertook management studies then she would be able to return to India in a position at a manager level. Consequently she chose a Certificate IV in Small Business course and a Diploma of Management course. The applicant undertook a Certificate IV in Small Business Management course and was issued a certificate on 17 December 2010. The applicant then undertook the Diploma of Management course and was issued with a Diploma on 26 July 2011. The applicant stated that she completed the course on 11 March 2011.

20. On 22 July 2011 the applicant applied for her second student (subclass 572) visa. On 10 August 2011 the applicant was granted a student (subclass 572) visa until 15 September 2012. The applicant stated that she applied for the second visa because she decided that she had an interest in business and so and decided to undertake a Diploma of Business and an Advanced Diploma of Business course. The applicant stated that she undertook the Diploma of Business course which was a 52 week course. The Tribunal finds that the applicant was issued with a Diploma of Business on 31 July 2012.

21. On 13 September 2012 the applicant applied for a third student (subclass 572) visa. On 26 September 2012 the applicant was granted a student (subclass 572) visa until 4 October 2013.

22. On 23 November 2012 the applicant travelled back to India to attend her brother’s wedding. She stayed in India until the end of December 2012 and then returned to Australia. This is the only trip the applicant has taken to return to India between 2009 and 2015.

23. The applicant undertook the Advanced Diploma of Business course between August 2012 and August 2013. The applicant stated that she commenced the Advanced Diploma of Business course before travelling to India. However as the course was continuing whilst she was away she was given permission to travel to her brother’s wedding and she paid additional fees for the late submissions of her assignments, that’s why she completed the course late. The Tribunal finds that the Advanced Diploma was issued on 16 October 2013.

24. The Tribunal queried why the applicant undertook an Advanced Diploma of Business course. The applicant stated that after completing the business course she did plan to go back to India. However she considered that if she had a Diploma and an Advanced Diploma in Business and then a Diploma and Advanced Diploma in Marketing then she could apply for marketing and manager positions in marketing or business, or could she be an executive in marketing or a business. The Tribunal asked what sort of job she considered she would do and the applicant said that she could do a job at a management level as a manager. The Tribunal queried what she would manage and the applicant stated that she would be like a manager, such as a customer service manager a marketing manager or a business manager.

25. On 3 October 2013 the applicant applied for her fourth student visa. On 24 October 2013 the applicant was granted a fourth student (subclass 572) visa until 8 December 2014. The applicant stated that she studied a Diploma of Marketing between 23 September 2013 and March 2014 and an Advanced Diploma of Marketing between 7 April 2014 and 8 October 2014.

26. On 2 December 2014 the applicant applied for her fifth student (subclass 572) visa. This is the application currently before the Tribunal. The visa application was made on the basis that the applicant would pursue studies for a Certificate IV of Work, Health and Safety, a Diploma of Work, Health and Safety, and a Diploma of Human Resources Management.

27. The Tribunal asked the applicant why she applied for a fifth student visa. The applicant stated that after she completed the Advanced Diploma of Marketing she was still confused about what she should do and what career she should pursue. The applicant stated that she spoke to a counsellor at the Institute and he advised her that there were opportunities and demand for persons in work, health and safety in the mining industry. The applicant stated that yes, she could do that and she was ready to learn new things. She stated that she wanted to have more and more knowledge and that’s why she decided to pursue new courses, being the certificate and diploma of work health and safety and the Diploma of human resources management. The Tribunal queried whether she was undertaking these courses just to learn new things. The applicant stated yes and for more career opportunities. The applicant stated that when she came to Australia she was new and still learning. However she is now confident that she can apply to be a work health and safety representative or a manager level position in the mining sector. The applicant stated that if she goes back to India or she travels to another country the skills that she acquires will be helpful. The applicant also stated that in the future she thinks she might start her own business but she has not decided what sort of business it would be. The Tribunal queried why she pursued a Diploma of Work, Health Safety and a Diploma of Human Resources Management. The applicant stated that there was more demand in the mining sector and they were looking for people in the mining sector. The Tribunal queried why she was looking only in the mining sector and she advised because of what the student counsellor had advised her. The Tribunal noted that there had been a recent downturn in the mining industry so queried whether there were the job opportunities as she states. The applicant stated yes, it is down, but it could be up. The Tribunal expressed its concern that given the changes in the mining sector there would be less work available currently and in the future. The applicant said that she will look for opportunities in other countries as well.

28. Whilst the applicant has been Australia she has worked in a number of different occupations. Between November 2010 and approximately October 2011 the applicant worked with Pinnacle Hospitality in different hotels in Perth. They were mostly five-star hotels in Perth. She undertook different jobs including bar attendant and food and beverage attendant at different hotels. In about October 2011 the applicant changed employers and undertook work as a casual security officer. She undertook this work between October 2011 and February 2015. She stated that it was a standing job and she could not continue due to a back problem that she suffered. Since then the applicant has worked for a US online company which sells various products and markets various products, including beauty products skin health products and weight loss products. The applicant explained that she consults with various people (including family and friends) to promote and encourage sales and she receives commission on any sales. The commission that she receives will depend on the number of sales and the products but ranges between 15 to 25% commission. The Tribunal asked the applicant what would be her average income and she stated that she didn’t worry about that income. The applicant states that she relies on her parents and her sister to support her to meet her study costs and her expenses.

29. The applicant has no savings. The applicant has no assets of her own in India.

30. The applicant has no job offers in India at the current time.

31. The Tribunals expressed its concern as to whether it could be satisfied that the applicant is a genuine temporary entrant in light of: arriving in Australia 2009 and only returning once on a brief occasion in 2012 to India; that she has undertaken a series of low-level short courses and not progressed in her studies beyond that level; that she is planning to work in the mining industry where there is a downturn and the Tribunal is concerned that she is using the student visa program to maintain residence in Australia. The applicant responded that she has been once to India because all her courses have been 26 week or 52 week courses with only two week breaks and she had no chance to return back to India. She stated that her only return to India in 2012 was for her brother’s wedding and she had to show proof to the institution who gave her permission to return to India. She stated that she has undertaken courses and obtained short periods of visas as she has always decided to use her resources for her training rather than on travel. She stated that she has been studying and her main purpose was to improve her management skills so that she would be multi-skilled with enough knowledge. She stated that she has learnt a range of things in Australia both in relation to the cultural religious differences. She simply wants to complete her current studies in September 2016 and then have an opportunity to work. She stated that she has been working hard and completing her studies, and wishes to have a final opportunity to complete her most recent course. The applicant requested that the Tribunal give her an opportunity to complete her studies in her Diploma and her other course will be finished in September 2016. The Tribunal also expressed its concerns about the relevance of the current courses to her management ambitions and she stated the management courses were to improve her customer service skills, and she has got the skills and knowledge and she is looking for opportunity.

32. After carefully considering the applicant’s evidence and the matters above, The Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. The applicant does have ties to India - her parents and her brother currently reside in India. The applicant has no family in Australia. The Tribunal finds the applicant has strong family ties to India. However the applicant has resided in Australia for the last six years and only returned to India once, in 2012, for a period of 36 days for her brother’s wedding. The applicant’s history of travel does not indicate that she has a strong incentive to return to India.

33. The applicant has no income or job offer in India and she has no assets in India. Since 2010 the applicant has been employed in various occupations in Australia and generating income from this employment. The evidence indicates she has stronger financial ties to Australia in contrast to India, given her employment history in Australia in recent times.

34. The applicant has now lived in Australia for six years and in that time she has been granted four student visas. The applicant has successfully completed a number of courses and appears to have been continuously engaged in studies since arriving in 2009. However, the courses the applicant has successfully completed are all short, inexpensive courses at a vocational level and the applicant has not progressed to higher education studies in that period. The Tribunal accepts the applicant has worked hard and has completed courses including a Certificate IV in Small Business Management, a Diploma of Management, a Diploma of Business, an Advanced Diploma of Business, a Diploma of Marketing, and an Advanced Diploma of Marketing and a Certificate IV in Work, Health and Safety. However the applicant has not demonstrated these courses are for a specific career path with a view to employment in a specific field or occupation. The applicant commenced a tourism course in Australia and after one year changed courses. The Tribunal accepts that it was reasonable at that point in time, after one year of study to reassess the applicant’s future studies. However the applicant subsequently pursued courses in business and management with a view to obtaining employment in business or management. Then the applicant pursued marketing courses with the view that she would pursue a management position in business or in marketing. However upon completion of these courses the applicant did not seek employment in this field, but rather chose a new career path and to study work, health and safety and human resource management. The applicant states that she changed career path again because she was still confused as to her future and her career path and that the advice of a student counsellor was that she should pursue studies in work health and safety with a view to working in the mining sector. The Tribunal does not consider this most recent change in courses and career path is with a genuine intention to work in the mining sector, in light of the downturn in the mining sector and given the applicant has no experience in this sector. The Tribunal was also troubled when at one point in the hearing the applicant suggested she might open her own business, but then indicated she was not sure what type of business. The Tribunal considered the applicant was pursuing these most recent courses with a view to maintaining ongoing residence in Australia. In reaching this conclusion the Tribunal took into account that the applicant has previously worked in computer teaching, the hospitality industry, the security industry and online sales. At no time in the applicant’s work history, noting that she is now 41 years, has she demonstrated any previous experience or studies pertaining to the mining industry or work, health and safety.

1. 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).

2. 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

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

   Miriam Holmes
   Senior Member