1503840 (Migration)

[2015] AATA 3210

1503840 (Migration) [2015] AATA 3210 (28 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CESAR AUGUSTO CIFUENTES SANCHEZ

CASE NUMBER:  1503840

DIBP REFERENCE(S):  BCC2014/2333689

MEMBER:George Haddad

DATE:28 July 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 28 July 2015 at 2:15pm

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 12 September 2014. The delegate decided to refuse to grant the visa on 2 March 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.573.223(1)(a) of Schedule 2 to the Regulations because she found the applicant is not a genuine student because she ws not satisfied that he intends genuinely to remain in Australia temporarily. .

4. The applicant appeared before the Tribunal on 21 May 2015 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing.

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 573.

8. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(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 applicant is a 35 year old national of Colombia. He first arrived in Australia aged 26 in July 2006 as the holder of a Subclass 570 visa to study English. He was subsequently granted a number of visas including Subclass 570, 572, followed by 575 and further 572 visas; a Subclass 485 visa and applied for a further student Subclass 573 visa which is the subject of this review.

12. The applicant has provided a written submission from his representative, evidence of studies he has undertaken and completed in Australia; evidence of part-time employment in Australia, written statement to the delegate relating to the reasons he is applying for the further student visa and undertaking the proposed further studies in Australia (discussed in more detail below); and gave oral evidence at the hearing held on 21 May 2015 which may be summarised as follows:

    The applicant first arrived in Australia in July 2006 aged 26.

    Prior to arriving in Australia he had commenced a bachelor of auditing in 2004 but did not complete it. He worked for a while as a printer.

    His original plan was to study English in Australia and return to Colombia to finish his bachelor of auditing course.

    He completed 6 months of English language at the Australian Catholic University and around 3 months at Cambridge International College.

    He then changed his mind and decided to stay and study a diploma of graphic pre-press and multimedia. He retained the plan to return to Colombia to complete the bachelor degree course but his plan would now have a second option of employment prospect.

    I noted that he studied two further courses in marketing and two courses in management and asked what the purpose of these courses was. The applicant replied that it was to give him yet more options of employment and that his mother works as a manager at a supermarket in Colombia.

    The applicant is single and in Colombia his family comprises of his mother. His father passed away in 1994 and he does not have any siblings.

    I noted to the applicant that in relation to his current visa application he proposes to undertake further studies in a Bachelor of Business followed by Master of Business Administration and asked the purpose of these courses in his career plan. The applicant replied:

    ‘I could have studied accounting in Australia and applied for permanent residency but I did not

    I need more qualifications and I have a job offer.’

    The job offer referred to is in an English translation of a letter from Colombia addressed to the Migration Review Tribunal dated 12 May 2015 from Mr Jorge Julian Rendon which states in summary:

    That the individual that provided the letter certifies that he knows the applicant and that he is currently studying a Bachelor of Business and will undertake a Master of Business Administration in Australia.

    The writer continues that he operates a restaurant near the international airport and a supermarket. Both businesses attract tourists and involve interaction with customers with around 70% being tourists.

    While the applicant has been studying in Australia, he has provided the writer with good advice related to marketing in the supermarket and restaurant.

    The writer indicates that the applicant will join the business team but that it is very important that the applicant first complete his current studies.

    The applicant stated that his mother is manager at the supermarket referred to in the offer letter

13. I questioned whether it is essential to qualify in a Master of Business Administration in order to take a job in a business of the size indicated in the letter of offer of employment. The applicant responded that this is only the current job offer and ‘anything could come in the next 2 years.’ If he adds the bachelor and master degrees to his qualifications he would have additional opportunities.

14. A discussion followed regarding the period the applicant held the Subclass 485 visa. The applicant said that when he had completed the Advanced Diploma of Management course, he needed a break from studies. He looked for work and thought about the bachelor degree course. When he sought work opportunities, people asked for more qualifications. He discovered that he could complete the bachelor degree course in 1.5 years with recognition of prior learning and thought this was a good option.

15. The applicant’s representative made an oral submission that when the applicant applied for and was granted the Subclass 485 visa; he did so not for the purpose of pursuing permanent residence in Australia but to acquire some work experience. He then discovered that diploma level qualification was not enough He added that after completing the studies in English language and multimedia, the applicant studied management and marketing in case he decided to start his own business. The applicant’s intention is to return to Colombia as his mother needs care and there is no one else to provide her with care.

16. The representative then added that the Tribunal could consider placing the ‘No further stay’ condition (see Schedule 8 of the Regulations). The suggestion of placing this condition should show his intention; and that the applicant may be satisfied to only complete the bachelor degree course.  

17. The applicant concluded by stating that he wishes to complete his studies and has no intentions to stay in Australia. His mother needs him to return to Colombia.

18. The applicant provided the following evidence of qualifications he obtained in Australia after completing the initial English language courses referred to earlier:

    ·2008    Certificate III in Printing and Graphic Arts

    ·2009    Diploma of Multimedia

    ·2010    Certificate IV in Marketing

    ·2011    Diploma of Marketing

    ·2012    Certificate IV in Frontline Management

    ·2012    Advanced Diploma of Management

19. The applicant provided evidence of enrolment in the following courses:

    ·Certificate of Enrolment in Bachelor of Business 12/11/2014 to 23/10/2016

    ·Certificate of Enrolment in Master of Business Administration 14/11/2016 to 04/03/2018.

20. The representative’s  written submission to the Tribunal may be summarised as follows:

    He argues that the applicant is a genuine student and disagrees with conclusions made by the delegate in the primary decision.

    The applicant has been in Australia since 2006, not because he wishes to remain in Australia permanently but to gain qualifications so as to return to his country and take a job he has been offered in a letter attached in which the business owner acknowledges the applicant’s educational background and experience which would benefit the business.

    The applicant has two incentives for the applicant to return to his home country: his mother and securing the job he is offered.

    The applicant has been a genuine student at all times. He intends to achieve the educational outcome he proposes and return to his home country and take up the job offer.

21. In his written statement dated 11 September 2014 provided to the Department, the applicant states that:

    He has decided to undertake further studies in the bachelor and master degrees courses after completing his previous courses. His reasons are that he will benefit from gaining these qualifications as business is conducted globally. He adds that Australia provides a safe, sophisticated and friendly environment with a mix of many cultural backgrounds.

    He hopes to be given the opportunity to complete the bachelor and master degree programs after which he return to his country and apply the knowledge to his own business.

22. The applicant also provided evidence of his academic achievements in Colombia and evidence of his employment in Australia in a letter from Pickwick Group, Integrated Facilities Services dated 3 September 2014. It states that the applicant has been employed on permanent part-time basis since July 2006 responsible for the daily maintenance cleaning of a high profile commercial tenant in the CBD precinct. It commends the applicant’s performance.

23. I have considered the submissions, written statement, documentary evidence and the written and oral arguments.

24. The applicant has been in Australia since July 2006, a period of 9 years. If he were to complete the courses he proposes which are scheduled to end in March 2018, he will have spent nearly 12 years out of his home country and in Australia. He will then be 38 years of age. He has completed courses in printing, multimedia, marketing and management. Each of these qualifications would provide a career path in different areas of vocation or profession.

25. His original stated plan was to study English and return to Colombia to complete a bachelor degree course he had commenced. It is not unusual and I accept without any difficulty that the applicant after arriving in Australia and completing the English language courses wished to study further. His choice of printing and multimedia appeared to be related to a job he held for a while in Colombia as a printer.

26. The applicant went on to qualify in marketing at diploma level. In my experience in student visa claims, I understand marketing at diploma level to qualify a person to lead a team of staff in a marketing firm devising and organising marketing campaigns to promote the products or services of businesses engaging their professional service. The transcripts of results the applicant provided relating to this qualification appear to support this understanding.

27. Similarly the applicant’s qualification at advanced diploma level in management prepares a person to take senior or managerial responsibilities in a business providing strategic leadership such as a department manager or an area manager. Again, the transcript of results the applicant provided relating to this qualification appears to support this understanding. At that point, in 2012 the applicant had acquired significant qualifications for a variety of career paths.

28. Following the applicant’s completion of the above courses, he was granted a Subclass 485 visa. This is usually a pathway followed by international student after completing their studies to explore either temporary or permanent visas under the long stay working visa scheme or the skilled migration program. This is a lawful and not uncommon pathway and aspiration for international students. It is also regarded as adding benefit to Australia’s economy and skills base. Of itself it should not and does not connote an intention to misuse the student visa for purposes other than its intended purpose.

29. The applicant submitted that he applied for the Subclass 485 visa because he wanted a break from study. His representative also submitted that the applicant needed a break and did not apply for the visa with an intention to stay permanently but to get work experience. The applicant also gave oral evidence that he found it difficult to find work. He said he was met with “closed doors when he looked for work, they wanted more qualifications”. It is not necessary to discuss whether or not the applicant intended to apply for permanent residence after the Subclass 485 visa because I have already indicated recognition that it is a legitimate pathway and aspiration for international students.

30. An incidental observation of relevance to the applicant’s submissions that the purpose was to get work experience is the letter from Pickwick Group which indicates that the applicant has been working in the same job since around the time he first arrived in Australia in 2006 – performing maintenance cleaning of commercial tenancies. Again the observation is not determinative of intention to stay temporarily but only that it appears not to support arguments of seeking work experience or to experience ‘Australia’s diverse approaches to solving problems’ as mentioned in the applicant’s written statement of 11 September 2014.

31. I have considered the applicant’s proposed further studies to master degree level and having regard to his previous qualifications, his submissions, statements, arguments and the period of time he has already spent in Australia and out of his home country, I do not accept that he has incentive to return to Colombia. I do not accept that his mother being in Colombia and purportedly requiring care represents a strong incentive to return because she has lived independently of her husband since he passed away in 1994. She has also lived independently of the applicant since he left in 2006, save for regular visits he made to Colombia; and she continues to work as a manager at one of the two businesses owned by the business owner who has offered the applicant a job.

32. I have considered the job offer in Colombia described in the letter dated 12 May 2015. I have placed little weight on this letter of offer for a job as representing incentive to return to Colombia because I do not accept as plausible that a business of the type and size described in the letter would require qualifications at Master of Business Administration level to secure any position it might offer the applicant. In my view, the applicant has ample qualifications in management and marketing to hold a management position in such a business as described and arguably in a much larger company or corporation.

33. I have considered the applicant’s written statement in which he also states that studying in Australia will “help me clinch that first role”. In my view as stated earlier, the applicant has very good qualifications he obtained during his nine years in Australia to put him in a good position to secure a good first role or job. He also states that completing the proposed further two courses will give him the knowledge to achieve his goal to open his own business. The applicant has not articulated any further details regarding any future plan to open a business. In any case, the qualifications he has already accumulated would reasonably equip him to open a business.

34. I have also had regard to the time the applicant will have spent out of his country if he were to remain and complete the proposed courses, nearly 12 years. Further noting that he has only maintained a job for the past 9 years in an unrelated area as a maintenance cleaning personnel, I do not accept the proposition that an international student needs to study for nearly 12 years qualifying in various fields of work or business opportunities before entering the workforce and starting a business if that were the plan.   

35. The courses the applicant is proposing may reasonably be seen as relevant to previous qualifications and I accept that they are. However, I have given greater regard to other factors which I have discussed above, notably the period of time the applicant will spend studying as an international student before entering the workforce and that I do not accept the proposition that he does not have sufficient qualifications to embark on any of his stated future plans.

36. It is for all the above reasons that I do not accept that the applicant is a genuine applicant for entry and stay as a student because I do not accept that he intends genuinely to stay in Australia temporarily for the purposes of cl.572.223(1). Rather, I have formed the strong view that the applicant, by proposing to undertake further studies and seeking a further student visa, he is using the student visa to circumvent the migration program and to maintain ongoing residence in Australia. In relation to the representative’s oral submission that the Tribunal could consider imposing the ‘No further stay’ Condition on the visa if it were to be granted. I took this to have the effect of emphasising the applicant’s intention to stay temporarily and not to be taken literally. In reaching my conclusions, I have taken into account all of the evidence, arguments and submissions on this point including the underlying intention of this specific submission.

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.573.223(1)(a).

2. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. 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.

   George Haddad
   Senior Member