1502830 (Migration)

[2016] AATA 3491

1502830 (Migration) [2016] AATA 3491 (11 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr KIRANKUMAR NAGINBHAI TANDEL

CASE NUMBER:  1502830

DIBP REFERENCE(S):  BCC2014/3322914

MEMBER:Antonio Dronjic

DATE:11 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 11 March 2016 at 10:00am

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

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

3. The applicant applied to the Department of Immigration for the visa on 3 December 2014. The delegate decided to refuse to grant the visa on 16 February 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 visa because the applicant did not satisfy the requirements of cl.572.223 (1)(a) of Schedule 2 to the Regulations as the delegate found that the applicant was not a genuine applicant for entry and stay as a student.

5. The Tribunal received a review application from the applicant on 26 February 2015. It was accompanied by copy of the delegate’s decision. In the primary decision, the delegate has identified that the applicant was enrolled into the following courses of study since arriving in in Australia on 20 December 2008:

   ·Certificate IV in Spoken and Written English;

   ·Certificate IV in Automotive Mechanical Technology;

   ·Certificate III in Frontline Management;

   ·Diploma of Business (Frontline Management);

   ·Diploma of management;

   ·Certificate IV in Automotive Technology;

   ·Diploma of Automotive Technology;

   ·Diploma of Business;

   ·Diploma of Marketing;

   ·Advanced Diploma of Marketing.

6. He applied for the current student visa on 3 December 2014 based on his enrolment into Certificate III and Certificate IV in Commercial Cookery commencing on 1 January 2015 and finishing on 14 August 2016.

7. The delegate further identified in the decision record that the applicant was unlawful non-citizen between 16 April 2012 and 30 April 2012 and that he obtained enrolment into Certificate II and IV in commercial cookery on 28 November 2014, just a few days before he applied for the current visa.

8. By letter dated 10 February 2016, the applicant was invited to attend the hearing scheduled on 3 March 2016 to give evidence and present arguments relating to the issues arising in the review. In addition, the tribunal invited the applicant to provide:

   ·A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa;

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

9. On 3 March 2016, the applicant’s representative submitted the following documents:

   ·Applicant’s statement outlining his immigration and study history in Australia; stating that he had completed a Diploma in Mechanical Engineering in India (three years course) and that, upon arriving in Australia, he intended to study in automotive mechanical technology field as it was relevant to his previous education. Since arriving in Australia he completed the following courses:

   ·     From 19 January 2009 to 27 March 2009 - Certificate IV in Spoken and Written English;

   ·     From 20 April 2009 to 5 February 2010 - Certificate III in Automotive Mechanical Technology;

   ·     From 15 February 2010 to 16 April 2010 - Certificate III in Frontline Management;

   ·     From 26 April 2010 to 12 November 2010 - Diploma of Management;

   ·     From 20 July 2011 to 13 November 2011 - Certificate IV in Automotive Technology;

   ·     Diploma of Automotive Technology - commenced the course on 29 August 2011 and withdrew in late April 2012;

   ·     From 2 July 2012 to 4 August 2013 - Diploma of Business;

   ·     From 7 October 2013 to 4 April 2014 - Diploma of Marketing;

   ·     From 7 April 2014 to 3 October 2014 – an Advanced Diploma of Marketing; and

   ·     From 5 January 2015 to 3 January 2016 - Certificate III in Commercial Cookery.

   He is currently enrolled into Certificate IV in Commercial Cookery, to be complete by 14 August 2016. He further stated that in November 2010, he started working as a kitchen hand at Sandringham Yacht Club; that from 2013 worked as a larder cook making salads and desserts and that in 2014 he was promoted to a position of a Chef. The applicant wants to obtain formal qualifications in the industry he is and has been working since 2010.

   ·Copy of the applicant’s educational certificates obtained in India and Australia;

   ·COE’s for Certificate III and IV in Commercial Cookery;

   ·Statement of employment from Mr Gemmell of Sandringham Yacht Club, confirming the applicant’s employment history and stating that it was a condition of the applicant’s promotion to the position of a chef that he undertakes formal trade qualifications in commercial cookery; and

   ·Copy payslips as evidence of applicant’s employment at the Sandringham Yacht Club.

10. The applicant appeared before the Tribunal on 3 March 2016 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the tribunal hearing.

11. At the commencement of the hearing, the applicant’s representative submitted a copy of the Certificate III in Commercial Cookery awarded to the applicant on 14 January 2016 with the statement of results and a copy of an unrelated decision from this tribunal.

12. The applicant is 28 years of age, single, male national of India. His parents and four siblings live in India. He does own significant property, land or real estate in India under his name. In India, he has completed Diploma in Mechanical Engineering (three years course) and did not work. Since arriving in Australia in December 2008, he travelled to India on one occasion only, in 2012, and stayed there for 15 days. His intention, on arriving to Australia was to complete studies in automotive mechanical technology field.

13. I indicated to the applicant that I read his statement and documentary evidence provided in support of his application. I expressed my concerns that, based on the evidence provided; it appears that in Australia he studied courses in unrelated fields, that some of the courses he had undertaken in Australia have no relevance to his previous qualifications obtained in India and stated career path. I further expressed my concerns that completing Diploma in Management and Diploma of Business possibly resulted in duplication of his skills as the subjects completed in these courses appear to be similar.

14. I noted that, to his credit, he had successfully completed nine courses in Australia and studied continuously. However, my concern is that he studied series of low-level inexpensive courses to maintain eligibility for student visas and maintain ongoing residence and employment in Australia. I acknowledge that Diploma in Management, Diploma of Business and Diploma of Marketing courses may have some relevance to both his current studies in Commercial Cookery as well as his past studies in automotive technology.

15. In his evidence the applicant conceded that some of the subjects required for the completion of Diploma in Management and Diploma of Business are similar but stated that he did not receive any credit transfers for his past studies. He completed these courses because he wanted to open his own business.

16. He conceded that he has changed a career path but reiterated that he developed interest in cooking after he was offered a job as a kitchen hand at Sandringham Yacht Club. He stated that he was promoted to a position of a Cook in 2014 and that he still works at the Club. He explained that completing relevant formal education was a condition of his employment as a Chef at the Club.

17. He stated that, despite department refusing his latest student visa application, he continued to study and has now completed a Certificate III in Commercial Cookery course. He has also passed three exams related to Certificate IV in Commercial Cookery and expects to finish his current course by August 2016. He declared his intention to return to India after completing his current Certificate IV course and open his own restaurant. He stated that he did not want to undertake commercial cookery course in India as he wanted to learn how to cook ‘western style of food’.

18. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    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. I have considered the applicant’s academic qualifications and how they relate to his stated career path. He changed his educational fields from Automotive Technology to Commercial Cookery. Initially, his intention was to open his own business in India in Automotive industry. Now he wants to open his own restaurant serving ‘western style food’ in India. Between completing courses relevant to automotive industry and hospitality, the applicant successfully completed relatively short and relatively inexpensive courses in Diploma in Management, Diploma of Business, Diploma of Marketing and an Advanced Diploma in Marketing.

24. I considered the statement of results listing the subject required for completion of Diploma of Management and Diploma of Business and the applicant’s oral evidence confirming that the subjects required for completion of these two courses were similar.  I find that completing these two courses was in effect duplication of his skills.

25. Based on the evidence before me I am not satisfied that the applicant’s current field of study is relevant to his education obtained in India or career path stated upon arriving in Australia. Similarly, I am not satisfied that the applicant’s current field of study is relevant to Automotive industry courses completed in Australia.

26. I considered the applicant’s immigration history and the extent of his ties to India. According to his oral evidence, since arriving in Australia on 20 December 2008, he travelled back to India on one occasion and stayed there for 15 days. At the same time, he maintained a part time employment in Australia since 2010. I am not satisfied on the evidence, that maintaining employment in Australia is not the reason for applying for student visas and maintaining ongoing residence in Australia.

27. The applicant was promoted to work as a part time Chef in 2014. He worked as a Cook at the same establishment since 2012 (as per statement of employment provided by Mr Gemmell) or since 2013 (as per the applicant’s written statement). Despite claiming that he developed interest in cooking and hospitality industry in 2012/2013, at that time he was not studding Commercial Cookery course. He was enrolled into Diploma of Business and Advanced Diploma of Marketing courses. If he was so interested in pursuing career in Hospitality, he could have, at that time, commenced his Certificate III in Cookery course. He has not done that until January 2015.

28. Based on the evidence, he was promoted to work as a Chef in 2014 and it is stated in the ‘Statement of Employment’ that the condition of his promotion was that the applicant undertakes formal trade qualifications in commercial cookery. I have difficulties accepting this claim as the applicant was already promoted to the position in 2014 and the “Statement of Employment’ does not stipulate that, if the applicant does not complete formal trade qualifications in commercial cookery, he will lose his job or be demoted to a different job within the business. In addition, the “Statement of Employment’ does not specify the level of trade qualifications in commercial cookery the applicant was expected to complete as a condition of his promotion. The applicant is now completed a Certificate III in Commercial Cookery which is a relevant trade qualification.

29. To his credit, the applicant has successfully completed several courses in Australia and studied continuously. I acknowledge that, despite being refused a student visa by the department, the applicant continued his studies and successfully completed a Certificate III in Commercial Cookery course. He is currently undertaking a Certificate IV in Commercial Cookery course which is due to be completed in August 2016. He declared his intention to return to India after completing his current course of study.

30. Having regard to all of the above, in particular to the additional evidence which was not before the delegate the correct and preferable decision is to allow the applicant the opportunity to complete the Certificate IV in commercial cookery course. I accept that the applicant is a genuine applicant for entry and stay as a student. Any proposal to study beyond the current course, in my view ought to be the subject of a further student visa application.

31. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.572.223(1)(a).

32. As the Tribunal has found the applicant meets the requirement of cl.572.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

33. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

    ·cl.572.223(1)(a) of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member