1503352 (Migration)

[2015] AATA 3431

1503352 (Migration) [2015] AATA 3431 (22 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RENZO IGNACIO ANDUNCE SEPULVEDA

CASE NUMBER:  1503352

DIBP REFERENCE(S):  BCC2014/2662284

MEMBER:Shahyar Roushan

DATE:22 September 2015

PLACE OF DECISION:  Sydney

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 22 September 2015 at 4:12pm

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 10 October 2014. The delegate decided to refuse to grant the visa on 23 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).

3. 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 because he was not satisfied that the applicant is a genuine applicant for entry and stay as a student.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

6. 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)     …

7. 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.

8. 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.

   Application for a Student Visa

9. In his application, the applicant applied for a Student (Class TU subclass 572) visa on the basis that he was enrolled in a Certificate II in Business, a Certificate III in Business, a Certificate IV in Marketing, a Diploma of Marketing and an Advanced Diploma of Marketing.

10. According to the Provider Registration and International Student Management System (PRISMS) the applicant has previously been enrolled in the following courses:

    ·     General English — Beginner to Advanced

    ·     Diploma of Information Technology

    ·     Certificate IV in Marketing

    ·     Certificate IV in Business

    ·     Diploma of Business

    ·     Diploma of Marketing

    ·     Advanced Diploma of Marketing

    ·     Advanced Diploma of Business

    ·     Advanced Diploma of Tourism

    ·     Advanced Diploma of Travel and Tourism

11. PRISMS also indicates that the applicant has only completed the General English course, the Certificate IV in Business, the Diploma of Business and the Advanced Diploma of Travel and Tourism since he was first  granted a student visa on 29 September 2010.

12. On 15 October 2014, the department wrote to the applicant inviting him to comment on his circumstances in relation to the genuine temporary entrant criterion, including his previous pattern of study in Australia and why he had chosen to enrol in the courses of study specified in his application, his reasons for choosing his education providers, his reasons for choosing to study in Australia rather than in his home country, his planned living arrangements in Australia, the relevance of his courses of study to his academic and/or employment background and the relevance of his courses of study to his future career and/or educational plans. He was also asked to provide other documentation in relation to Overseas Student Health Cover and Health Examinations required.

13. The applicant responded to the invitation on 22 October 2014, stating that an education in marketing will enhance his job search conversion to employment success rate, as it can be applied to his resume, and will give him a competitive advantage. He has adapted to the school situation and Academies Australasia offers him a pathway to a number of Australian Universities. He stated that he has chosen to study in Australia because of what the education system offers and it gives him the opportunity to practice his English. After completing his studies he will return to his home country and will gain better employment. He is currently working for Australia Post and would like to open a courier service company in his home country, and that a marketing course will develop his understanding of fundamental marketing principles and will give him a strong business base.

14. In refusing the application, the delegate noted that the applicant has sought to undertake a series of short, inexpensive courses having only completed VET courses in the 5 years he has held a Student visa in Australia. She noted that the applicant has changed courses several times from 10 October 2010 to 29 October 2014, and that the courses chosen are typically of a short duration and low cost. She also noted that he had not provided any substantial reasons as to why he has chosen to study these courses and the lack of apparent value of the courses to his future. She concluded that the applicant does not genuinely intend to stay in Australia temporarily and is using the student visa program as a means of maintaining residence in Australia.

    Application for Review

15. The applicant applied for a review of the delegate’s decision. The applicant was represented in relation to the review.

16. In a submission dated 10 August 2015, the applicant provided the following explanations:

17. After completing his General English he decided to pursue a Diploma of Digital Media Technologies at Central College in order to pursue a better career in his home country. However, he realized that he was not interested in the course and decided to withdraw.  He ‘ended up receiving the English Certificate, Certificate II and Certificate III in Information, Digital Media and Technology’.

18. In August 2011, after discussions with student services, he decided to pursue qualifications in marketing. He was issued with 3 CoEs from Macquarie Institute (Certificate IV in Marketing, Diploma of Marketing and Advanced Diploma of Marketing). However before he got the chance to commence his studies, the college decided to cancel the marketing courses. As a result, he decided to change his course and study Business, enrolling in Certificate IV in Business, Diploma of Business and Advanced Diploma of Business.

19. The applicant’s studies towards the Certificate IV in Business were progressing well and he received a Statement of Attainment for that course. However, while he was studying towards the Diploma in Business, the school revised the CoEs for the Diploma of Business and Advanced Diploma of Business and on 18 July 2012, Macquarie Institute decided to cancel the Advanced Diploma of Business. The applicant was offered a change to a marketing course or a move to another education provider. In view of these ongoing problems, the applicant withdrew from the school immediately and on 19 July 2012 he received a ‘release letter’ allowing him to continue his study according to his wishes. As he did not wish to waste any more time, he started looking for another course he was interested in at that time, namely Tourism. He believed that he would have the opportunity to work in a vibrant sector in his home country, including transport, hotels and restaurants, tourism and travel. He also believed that the course would allow him to develop his management and entrepreneurship skills. That is why he chose to study this course at the Clarendon Business College (Academies Australasia).

20. In September 2012, the applicant enrolled in an Advanced Diploma of Travel & Tourism course. He really enjoyed studying this course. The school then changed the course name to Advanced Diploma of Tourism and he received a new CoE. The changes did not impact with his studies and he received ‘the Certificate and Academic Transcript with distinction grade’. He chose to continue studying the Advanced Diploma of Marketing in Academies Australasia because he completed the Advanced Diploma of Tourism at the same institution and was already familiar with the school. Academies Australasia offers a pathway to a number of Australian universities and upon successfully completing his Advanced Diploma of Marketing he will receive credit at selected universities.

21. The applicant stated that he would like to ‘upgrade’ his knowledge in marketing as ‘Business/Marketing is one of the most exciting courses to be learnt’. It involves lateral thinking, creativity, management, sales promotion, publicity, public relations, product development, packaging, price setting, and distribution decisions. An education in marketing would enhance his employment opportunities and would give him a competitive advantage. The marketing course he is currently undertaking is related to his previous studies. Other than looking for employment opportunities in the Tourism industry in the future, he would like to be an ‘employer’. That is why he must have knowledge of marketing in order to promote his business.

22. After spending 5 years studying in Sydney he did not feel that he had enough knowledge to support his career and future due to the many unlucky situations that he had encountered. He realised that he is not young at 39 years of age, but he did not want to give up as he still has a strong desire to continue his studies and complete a degree in the near future. He would like to continue to study marketing in Australia because the Australian education system offers an innovative, vibrant and multicultural environment. In Australia he has the opportunity to practice his English on a day to day basis. After completing his course in Australia he will return to his home country in order to find better employment opportunities.

23. The applicant appeared before the Tribunal on 11 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

24. The applicant stated at the hearing that he is studying towards an Advanced Diploma in Marketing and he is currently completing a Certificate IV in Marketing. He stated that he had arrived in Australia in in 2009 on a student dependent visa. He commenced his studies in Australia in October 2010 by first studying English. He then decided to do a Diploma of Information Technology but he did not find it to be a worthwhile course. He notified the college of his intention to withdraw, but he was told by his education provider that he should remain in the course for at least 4 months before withdrawing. He then enrolled in a marketing course, but the education provider cancelled the course because there were not enough students enrolled in that course. The course was changed into a Business course. He completed all the course requirements but the education provided again cancelled the course and they offered him a marketing course again. Finding the education provider, the Macquarie Institute, unreliable and untrustworthy, he decided to leave in July 2012 and enrolled in an Advanced Diploma in Tourism at Academies Australasia. He completed this course and obtained his qualifications. He then decided to return to marketing and he was awarded credit for Business units he had completed in the past. He has studied continuously and there have been no gaps in his studies.

25. The applicant was asked why he had studied towards a Certificate II and a Certificate III in Business after obtaining an Advanced Diploma in Tourism. He said he never obtained qualifications in Business from Macquarie Institute, despite having completed a number of related units. However, the units he had completed counted towards Certificated II and III qualifications in Business and he would be able to convert his past studies into more credits towards future higher qualifications in marketing. He said he wanted to shorten the duration of his studies as much as he possibly could. He said would like to have a good education and use his education and qualifications to advance his future life. He would like to finish his Diploma of Marketing as this was his goal from the outset. He prefers to study in Australia because Chile is a developing country and overseas qualifications would create many more opportunities for him. While he is cognisant of his age, his objective is to obtain his marketing qualifications and return to Chile with qualifications that matter.

26. The Tribunal found the applicant to be a credible and reliable witness. The Tribunal found his oral evidence, which was consistent with the contents of his submission and the documentary evidence he has provided, to be persuasive.

27. The Tribunal accepts that the applicant has been studying continuously in Australia without any gaps in his studies. The Tribunal accepts that he had clear objectives and a trajectory in choosing the courses he had studied in the past and finds his explanations for changing courses and altering the direction of his studies persuasive. The Tribunal is of the view that the circumstances underlying these changes were primarily created by his education provider and not by the applicant’s desire to undertake a series of short and inexpensive courses. The Tribunal accepts that the applicant’s objective is to obtain his qualifications in marketing before returning to his home country, where his qualification would give him an advantage in the employment market. The applicant’s entire family reside in Chile and the evidence before the Tribunal does not indicate that, other than completing his studies, he has a strong incentive to remain in Australia.  The Tribunal is not satisfied that the applicant is using the student visa program to circumvent permanent migration programs.

28. 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).

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

    DECISION

30. 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.

    Shahyar Roushan
    Senior Member