1505260 (Migration)

[2015] AATA 3639

1505260 (Migration) [2015] AATA 3639 (12 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lianne Dominique Michelle Bonfrere

CASE NUMBER:  1505260

DIBP REFERENCE(S):  BCC2015/628483

MEMBER:Shahyar Roushan

DATE:12 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 12 November 2015 at 1:15pm

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 26 February 2015. The delegate decided to refuse to grant the visa on 2 April 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. The delegate 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 decision under review should be affirmed.

   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 her application, the applicant applied for a student (Subclass 572) visa on the basis that she was enrolled to undertake a Certificate IV in Frontline Management, a Diploma of Human Resources Management, an Advanced Diploma of Management (Human Resources), a Diploma of Marketing and an Advanced Diploma of Marketing.

10. In support of her application for a student visa, the applicant submitted a number of documents, including a copy of her curriculum vitae and copies of qualifications she has obtained in Australia. According to these documents, since she was first granted a student visa in 2008, the applicant has obtained the following qualifications:

    ·Certificate III in Aged Care Work

    ·Certificate III in Food Processing (Retail Baking – Bread)

    ·First Aid, CPR and Basic Emergency Life Support

    ·IELTS English Language Course

    ·Certificate II in Business

    ·Certificate III in Business Administration

    ·Certificate II in Tourism

    ·Certificate II in Customer Contact

    ·Certificate IV in Business

    ·Diploma in Business

11. The applicant also submitted a ‘Statement of the Purpose of My Stay (statement of purpose) and a Statement of Intention of Business (business statement), as well as the following relevant documents:

    ·Copy of a letter from Windsor and District Historical Society to the applicant, dated 13 November 2013, confirming that the applicant is contracted to clean the Windsor Town Council Chambers on a monthly basis.

    ·A letter from two of the applicant’s friends in the Netherlands, Eric and Tanya Gielen, to the department, dated 21 March 2015. In that letter, the Gielens state that because the applicant has been living in Australia for six years, most of her family and friendship connections in the Netherlands have disappeared. The Gielens, however, have remained good friends with the applicant over this period and they have promised to support her if she were to return to the Netherlands. They both have full-time jobs and are able to support the applicant until she finds a job. The applicant also has ‘a fair amount of superannuation’. The Gielens stated that they will guarantee the applicant’s ‘smooth integration back in the Dutch society’ if necessary and that this guarantee will remain in effect until 27 March 2016 or ‘upon permanent immigration to Australia’. 

    ·A letter from MS Queensland, sated 10 March 2015, stating that the applicant has been employed with Multiple Sclerosis Society of Queensland since 18 October 2011 on a ‘permanent part-time basis’.

    ·Copy of notice of assessment for year ending 30 June 2014.

    ·Copy of an email from the Housing Co-op in the Netherlands to the applicant, dated 19 May 2014, confirming that her registration as a home seeker with the Housing Co-op has been renewed until 22 June 2015.

12. The delegate refused the application on 2 April 2015. The delegate found that the applicant had not demonstrated that she has any significant assets or property ties to the Netherlands, which would provide her with a strong incentive to return there. She placed weight on the fact that that she had not demonstrated any evidence of employment from the Netherlands or any evidence if stable finances in the Netherlands. She also placed weight on the applicant’s immigration history and the diverse nature of the courses she has studied. The delegate was not satisfied that the applicant intends to genuinely stay temporarily in Australia.

    Application for Review

13. The applicant applied for a review of the delegate’s decision.  

14. In support of her application for review, the applicant provided to the Tribunal a copy of the delegate’s decision and a number of additional documents, including:

    ·Copy of an email from the Housing Co-op in the Netherlands to the applicant, dated 2 June 2015, confirming that her registration as a home seeker with the Housing Co-op has been renewed until 22 June 2015.

    ·A letter from Fam Gielen, stating that she and her husband became friends with the applicant in 1999. They met and worked in the same company. They have stayed good friends despite living in different locations. She stated that she and her husband will help the applicant whenever she returned to the Netherlands.

    ·A statement regarding the applicant’s ‘future vision’ concerning her study, work and returning to her home country (vision statement).

15. In a covering submission, the applicant’s representative expressed disagreement with the delegate’s decision and submitted that the applicant has been an exemplary student to date and has completed her studies. He submitted that the refusal of the visa ‘is typical of the changing culture in the Department which has now become a paramilitary organisation intent on breeding fear into the community…’ It was submitted that the applicant started her studies in Australia from ‘a very low base – Certificate II and it is not surprising that [she] wishes to upgrade her skills at least to a Diploma level’. Her current and future studies will equip her to return to the Netherlands to commence her own business. The applicant successfully completed a Diploma of Business on her previous visa. She has also completed some of the competencies in her Certificate IV in Frontline Management. 

16. It was submitted that the applicant’s parents, who are now deceased, ran a small business in the Netherlands. The applicant’s course structure shows that she has been studying business and marketing which are ‘core principles to support the establishment of a business’. The applicant has gained some experience in Australia by establishing a small cleaning business. It was submitted that the applicant has roots in the Netherlands, has more friends there than in Australia and is a registrant for a home in the Netherlands.

17. The applicant appeared before the Tribunal on 23 October 2015 via telephone to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

    Findings and Reasons

18. The applicant arrived in Australia in October 2008 and was granted a student visa in December 2008. Since her arrival in Australia, she has held six student visas. In the past seven years she has obtained a range of qualifications, including a Certificate III in Aged Care Work, a Certificate III in Food Processing (Retail Baking – Bread), First Aid, CPR and Basic Emergency Life Support certificate, a Certificate II in Business, a Certificate III in Business Administration, a Certificate II in Tourism, a Certificate II in Customer Contact, a Certificate IV in Business and a Diploma in Business. At the hearing she stated that she has fulfilled the requirements of for a Certificate IV in Frontline Management and intends to study towards a Diploma of Human Resources Management, an Advanced Diploma of Management (Human Resources), a Diploma of Marketing and an Advanced Diploma of Marketing.

19. The applicant has given evidence that she has started a cleaning business in Australia. She currently has only one client - Windsor and District Historical Society, but her intention is to establish and run her own cleaning business in the Netherlands.

20. The applicant had worked for a cleaner in the Netherlands from 2001 to 2008. While she was not running her own business, the Tribunal is of the view that seven years of experience in the profession would have provided her with knowledge and insight in relation to the business of cleaning. Indeed, in her vision statement and statement of purpose she stated that she has ‘many years of experience in the cleaning business, especially in my own country, which would give me the right basis to start in the Netherlands’. In addition, she has gained some experience establishing a cleaning business in Australia, even if this business is currently confined to one client. She has supplemented her practical experience by studying towards and obtaining a Certificate II in Business, a Certificate III in Business Administration, a Certificate II in Customer Contact, a Certificate IV in Business and a Diploma in Business.

21. At the hearing the applicant was asked why she intended to undertake the courses she has proposed. She responded that she would like to add to her skills in this area. Her parents had a grocery shop in the Netherlands and they had problems with finding the right employees. She would also like more experience in marketing because her parents had problems in that area. When asked why she needed the additional qualifications, she stated that cleaning is different to running a cleaning business. She needs to hire employees and market her business.

22. In her vision statement the applicant stated that although she knows ‘the market’ in the Netherlands, she does not feel that she is sufficiently equipped to start a business with only a Diploma in Business. The Tribunal finds it difficult to understand why the applicant's' current experience and qualifications do not adequately equip her to return to the Netherlands and establish her own business. As it was put to her at the hearing, the Tribunal is not convinced that she needs to undertake the proposed courses in order to set up her own cleaning business in the Netherlands. The applicant stated that she feels that she misses the skills to be able to do what she wants in the Netherlands. The Tribunal appreciates that the applicant feels that she may require more skills in running her business. However, the applicant did not provide any other explanation or specific details as to what were the nature of the problems experienced by her parents when running their grocery business, how exactly these problems would relate to her own cleaning business plans and what specific knowledge she would gain by undertaking the proposed courses in order to hire employees and sell her services in the context of her business.

23. At the hearing the Tribunal noted that she will be 56 years old by the time she is due to complete her studies and queried whether there may be advantages in her starting her business sooner. The applicant responded that she would like to employ other people to do the work for her. She has a healthy body but she would like to obtain the skills necessary to enable others to work for her. The applicant did not elaborate any further as to why she would be unable to hire other cleaners for her business or how exactly the proposed Diploma of Human Resources Management and the Advanced Diploma of Management (Human Resources) would assist her in hiring others. The applicant also stated that many migrants are entering the Netherlands and that if she were to wait longer to start her business, the cost of labour is likely to be lower. While the Tribunal appreciates that in approximately four years a number of factors may or may not play a role in assisting the applicant in establishing her business, the Tribunal is not satisfied that such speculations adequately explain how the applicant’s studies and any delay associated with her departure from Australia will assist her to obtain employment or improve her prospects in starting her business.

24. Moreover, the applicant does not appear to have strong ties to the Netherlands. At the hearing, the applicant referred to the two letters from the Gielens and their offer to support her. The Tribunal accepts that she has maintained a friendship with the Gielens and that her brother and sister-in-law reside in Maastricht. However, she has not submitted evidence of any other ties to the Netherlands. At the hearing she stated that she is a part of the Sai Baba Organisation in the Netherlands. When asked if she is also involved with the Organisation in Queensland, she said she was but added that her ties here are not as strong because she is studying. As it was put to her at the hearing, it would be reasonable to assume that she also has strong ties to the organisation in Australia given that she has not been involved with the Organisation in the Netherlands for the last 7 years. The applicant has not returned to the Netherlands since 2008 and while the Tribunal accepts that she has registered with the Housing Co-op as a home seeker, on the basis of the evidence before it, the Tribunal is not persuaded that the applicant has strong personal ties to the Netherlands, which would serve as a significant incentive for her to return to her home country.

25. Indeed, evidence submitted by the applicant suggests that her intention is not to remain in Australia temporarily.  The applicant has worked in Australia in a variety of jobs since 2008. She is employed on a permanent part-time basis by MS Australia and has established her own business here. In her statement of purpose she had stated ‘I have lived in Australia for six and a half years so my business interests have been in Australia in the period prior to the visa extension request’. When this was put to her at the hearing, the applicant stated that she gets to practice her business in Australia. Furthermore, in her business statement the applicant provided details of her business plans and what she intended to do to achieve her business goals over the next few years. She wrote about her intention to establish strong foundations for her business in Australia and to assist others through her business. As it was put to her at the hearing, this does not indicate that her intention is to stay in Australia temporarily. The applicant responded that she was just following other people’s advice and she was not clear about how this would impact her. Finally, in their first letter of support the Gielns stated that they would guarantee the applicant’s ‘smooth integration back in the Dutch society’ and that the guarantee will remain in effect until 27 March 2016 or ‘upon permanent migration to Australia’. The applicant responded that she did not know what this meant and that the Tribunal should direct its query to the Gielens.

26. On the basis of the above, and having considered all the evidence before it, including the applicant’s circumstances, her evidence and statements, immigration history and the relevant factors in the Minister’s Direction No.53, as well as other matters it considers relevant, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that she intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above. 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).

27. 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

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

    Shahyar Roushan
    Senior Member