1505442 (Migration)

[2016] AATA 3599

1505442 (Migration) [2016] AATA 3599 (17 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alparslan Kazanc

CASE NUMBER:  1505442

DIBP REFERENCE(S):  BCC2015/593125

MEMBER:Alison Mercer

DATE:17 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 573 Higher Education Sector visa:

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

Statement made on 17 March 2016 at 1:08pm

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 24 February 2015. The delegate decided to refuse to grant the visa on 7 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 was a genuine applicant for temporary entry and stay in Australia.  In reaching this conclusion, the delegate had regard to the Minister’s Direction 53 on Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications and to the applicant’s migration and study history.  The delegate gave particular weight to the fact that the applicant had been in Australia as a student since October 2009 on a series of student and/or bridging visas but had completed only a Diploma of Management and 16 months of various English courses during that period.  The delegate further noted that the applicant already had a Bachelor degree qualification in Public Relations and Advertising from Turkey, so the value of his current enrolment in a Diploma of Hospitality was questionable to his employment prospects upon return.  The delegate found that the applicant appeared to have had numerous gaps in his studies between 2009 and 2014, and had been granted a subclass 573 (Higher Education Sector) visa in 2011 but had not actually enrolled in a Bachelor or higher degree course, which was a breach of condition 8516 attached to that visa.  Finally, the delegate gave weight to the fact that the applicant had changed areas of study several times with no satisfactory explanation for these changes.  The delegate concluded that the applicant was using the student visa program to maintain ongoing residence in Australia, and was not a genuine applicant for temporary entry and stay in Australia.

4. The Tribunal received a review application from the applicant on 21 April 2015, which was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr Joseph Italiano, to be his representative and authorised recipient for correspondence for the purposes of the review.

5. On 7 May 2015, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing on 17 June 2015.  He was requested to provide evidence of his current enrolment (CoE), proof of his completed qualifications and documents indicating that he had sufficient funds, or access to sufficient funds, to meet his living costs, course fees and travel costs, had the required English proficiency and had successfully completed secondary schooling.  He was requested to provide this information 7 days before the hearing.

6. On 14 May 2015, the applicant via his agent provided various documents and submissions to the Tribunal by email.  These included a submission by his agent of the same date, in which:

   ·a chronology of the applicant’s study in Australia was set out, in which various study gaps and course changes were identified and explained, plus supporting documents regarding partial completion of some courses and evidence of one course provider going into liquidation;

   ·it was asserted that the applicant, a 34 year old national of Turkey, initially came to Australia to study English, management and business with the intention of enhancing his skills in order to join a family business (involving agricultural seed production) run by his father and several of his uncles in Turkey;

   ·while in Australia, he had a falling out with his family and also became interested in cooking/hospitality while working part-time as a student at Topolinos Restaurant in St Kilda, Melbourne; and

   ·he had now worked at Topolinos for 3 years and been promoted from casual employee to the position of chef.  He had enrolled in a Hospitality course to formalise his qualifications in this area, and he and his Greek-Australian fiancée Ms Katerina Tzokias, planned to return to his home town of Samsun in Turkey to open a restaurant serving Turkish and Italian cuisine.

7. On 26 May 2015, the applicant’s agent provided further material, being a letter from the applicant’s uncle confirming that he would provide financial support or the applicant to establish a restaurant on his return to Turkey. 

8. On 2 June 2015, the Tribunal received a further email submission from the applicant’s agent attaching the applicant’s current Confirmation of Enrolment (CoE), a copy of the agent’s previous submission, evidence that the applicant’s uncle had set aside US $50,000 for the applicant’s study in Australia and for the applicant to establish a restaurant in Turkey upon his return, plus copies of the applicant’s uncle’s tax return (and English translation), evidence of his English proficiency, his current health cover and his Turkish Bachelor degree qualification.

9. Subsequently, the Tribunal wrote to the applicant via his agent to advise that the hearing scheduled for 17 June 2015 had been cancelled.  The matter was reconstituted on 9 September 2015, after the original Tribunal Member became unavailable to finalise the review.  A new invitation was sent for a hearing on 6 October 2015, and the applicant was provided with a copy of the Minister’s Direction 53 and asked to provide any additional material he wished to rely upon prior to the hearing.

10. On 9 September 2015, the Tribunal received an email from the applicant’s agent indicating that the applicant would attend the hearing, that he also wished the Tribunal to take evidence from his fiancée Ms Katerina Tziokas in person, and that there had been no material changes in the applicant’s circumstances since June 2015.  The Tribunal was therefore asked to have regard to the agent’s previous submissions.  

11. The applicant appeared before the Tribunal on 6 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Katerina Tziokas and legal submissions from the applicant’s agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

14. 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)     …

15. 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.

16. 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.

17. At the hearing, the applicant confirmed that he had almost finished the first year of his Diploma of Hospitality at Brighton Institute of Technology (BIT) and would commence the second year in January 2016.  He said that he was progressing well and continued to work on weekends at Topolino’s restaurant.  Initially he worked there as a kitchen hand but was now an apprentice Cook.

18. In relation to his past study history, the applicant said that after he completed a Bachelor degree in Advertising and Public Relations in the Turkish part of Cyprus in 2009, he planned to go to either the US or the UK to learn English but ultimately came to Australia to do this as one of his uncles and his cousin lived here.  He planned to take an English course and then undertake a Business qualification as it was expected that he would return to Turkey and join the family business run by his father and uncles.  This was a seed export/import business. The applicant said that the business traded internationally so it would be advantageous for him to speak English as this was the universal business language, and his father and uncles in Turkey did not speak English fluently. 

19. The applicant said that once he arrived in Australia, he found part-time work at Topolino’s while studying and then became interested in pursuing Hospitality as an area of study.  He felt that the restaurant was a good business model which he could pursue himself on his return to Turkey, rather than entering the family business as originally planned.  The applicant said that he never really wanted to join the family business but was expected to do so by most of his family.  His family in Turkey were initially not happy that he changed from Business to Hospitality Management studies but ultimately they accepted his decision to change direction and have supported him financially.  He is especially close to his uncle, Huseyin Kazanc, and spoke to him weekly by telephone.  Huseyin Kazanc is heavily involved in the family business but supported the applicant’s decision to change his study direction to Hospitality.

20. In relation to his family, the applicant said that his parents, 3 paternal uncles and their families and his younger sisters are in Turkey, while another uncle and his daughter (the applicant’s cousin) are in Australia. His uncle here is retired and his cousin is at home with her young family.  The applicant said that he last returned to Turkey about 2.5 years ago to see his family there but is in regular contact with them by telephone and email, particularly his uncle Huseyin Kazanc, to whom he is very close.

21. In response to the Tribunal’s query, the applicant said that he changed English courses from Deakin University to Ozford College because at the time he was studying at Deakin in Burwood, he was living in Coburg and the commute was very lengthy.  He talked to the Australian Education Centre and they suggested he change to a course provider in a more convenient location, which he did.  He then commenced an Associate Degree in International Business Management at NMIT.  After he had completed the first year, NMIT changed the title and subject of this course so that it had little focus on international business, which was the main interest of the applicant.  Accordingly, the applicant discontinued at NMIT and enrolled in a Diploma of Business Management at BIT in November 2011 and commenced this course in March 2012.  After completing it, he enrolled in the Advanced Diploma starting 15 May 2015 but shortly after this, BIT suspended the course for a month.  During this time, the applicant decided to study Hospitality Management instead.  He enrolled in February 2014 at BIT but then this education provider shut down for 3 months.  He re-enrolled in June 2014 when it reopened as he had been told it would open again in October 2014, which it did. He has been studying there since that time.

22. When asked by the Tribunal why he did not find another course provider during the period BIT was closed, given that there were many providers of Hospitality courses in Australia, and he had previously changed providers several times, the applicant said that he had already started at BIT and was happy with both the course and the fees. If he enrolled somewhere else, it would be disruptive and more expensive and he had been assured it would reopen in October 2014.

23. In relation to his plans upon completion of his Advanced Diploma of Hospitality, the applicant said that he and his fiancée Ms Tziokas would relocate to Turkey and he would scout suitable locations in his home town of Samsun to open a restaurant.  Ms Tziokas was learning Turkish in preparation for this.  He would be fully qualified in both cooking and restaurant management, while Ms Tziokas had prior experience in front of house operations in hospitality.  In response to the Tribunal’s query, the applicant said that he and his fiancée did not live together, as it was not culturally appropriate, but he had discussed living in Turkey with her and her family and they were all now in agreement that she would accompany him when he returned to Turkey.  The applicant stated that he had no intention of applying for permanent residence in Australia as either a qualified cook or as the fiancé or spouse of Ms Tziokas.  The applicant said that his family in Turkey supported his plans and his uncle would help him find suitable premises and provide initial funding.  He anticipated buying a property to open a restaurant but might lease existing premises.  The area in which he lives has a high tourist volume so he anticipated that his restaurant would have good prospects.  In response to the Tribunal’s query, the applicant said that on return to Turkey, he would be required to do 5 months of national service which was currently deferred as he was studying.  He said that this would not be a big disruption to him, as it is not a long period.

24. In response to the Tribunal’s query about whether his previous Diploma of Business plus his cooking skills were already sufficient for him to open a restaurant in Turkey if he were genuinely planning to do so, the applicant said that the Advanced Diploma of Hospitality was very specific to running a restaurant, both back and front of house, where the Diploma of Business, while useful, was a much more generic qualification.  He needed the practical and specific skills of the Hospitality Management courses to enable him to follow his plan. The applicant conceded that going into a restaurant might not be as lucrative as entering the family business but he stated that he would have freedom to run his own business, and he also thought he could do well, even if not as well as the family business.

25. The applicant’s agent submitted that the applicant’s current course of study and his employment at Topolino’s were all consistent with his stated plan on return to Turkey, such that his evidence should be accepted as credible.  He also submitted that Turkey had an unemployment rate of around 9.6%, which was not significantly higher than Australia’s current rate of around 6.6%, and that in any case, the applicant would be returning to establish a business of his own with family backing, and not to try to find a job. 

26. The applicant stated that he had no plans to make any further visa application to study in Australia once he had completed his current course.  He anticipated that he might apply in future for a visitor visa to Australia so that he and Ms Tziokas could visit her family here.

27. The Tribunal then took evidence from Ms Tziokas, who had not been present during the applicant’s evidence.  She confirmed that she is engaged to the applicant, and that they have been seeing each other for about 1 year.  She said that she was currently unemployed but had previously worked in Human Resources (HR) for Skilled Group.  She indicated that she had an Advanced Diploma in HR at William Angliss and a Bachelor degree in HR from Latrobe University plus a Graduate Diploma in HR from Deakin University, although she deferred this to take up employment with Skilled Group.

28. When asked about her future plans, Ms Tziokas said that the applicant would finish his course after which they would relocate to Turkey and open a restaurant. She confirmed that she is learning Turkish and if her language skills are good enough, she will be front of house at the restaurant as she has prior training at William Angliss and experience in this role.  She is also currently undertaking an ESL teaching course, so that she will have an alternative occupation if her Turkish is not good enough to work in the restaurant initially.

29. Ms Tziokas said that the applicant changed courses from Business to Hospitality Management because he genuinely wanted to change direction and set up his own business, despite the pressure to enter the family business. She said that they had no plans for him to apply for permanent residence in Australia on the basis of their relationship and that they did not live together.  In relation to moving to Turkey with the applicant, Ms Tziokas said that it was a big decision for her to make and she did a lot of research and discussed the pros and cons with her family and friends, but ultimately decided it was the right decision for them.

30. The Tribunal has considered the above evidence, together with available documentary evidence, against the Direction 53 factors and other relevant matters.

31. The Tribunal considers that the applicant was able to credibly explain the gaps identified by the delegate in his study and accepts that these were largely not of his making.  It does not give significant adverse weight to these.

32. The Tribunal acknowledges that the applicant has changed his area of study from Associate Degrees in Business related areas to Diplomas and Advanced Diplomas in Management and Hospitality, raising understandable concerns regarding whether he has a genuine career path in mind or has been simply enrolling in various courses with the aim of remaining in Australia.  Having had the benefit questioning the applicant at length at hearing, and receiving written submissions from his agent, the Tribunal is satisfied in this case that the applicant genuinely did intend to learn English and then pursue studies in Business with a view to making his expected involvement in the family business in Turkey more valuable, but that he subsequently came to a decision not to enter into the family business but to pursue a career in Hospitality, largely based on his employment experience at Topolinos while studying. His stated plan at hearing was to open a restaurant in his home city of Samsun in Turkey.  At hearing, the applicant went into reasonable detail as to the restaurant he had in mind, its clientele, menu, method of operation and likely funding from family backing.  Based on his credibility at hearing, the Tribunal accepts that he is sincere in his intention.  He and his fiancée each gave separate and consistent evidence regarding their plans and the process of decision making they had gone through in coming to the decision that they would move to Turkey following the completion of the applicant’s Advanced Diploma of Hospitality in 2016.

1. The Tribunal raised with the applicant at hearing its concern that his present qualifications in Business, Management and Hospitality, together with his employment experience at Topolino’s since 2013, would be sufficient to provide the applicant with the knowledge and skills sufficient to market and run a restaurant without the need to pursue the Advanced Diploma of Hospitality. He responded that the Advanced Diploma in Hospitality would provide him with additional skills to successfully establish and run a restaurant.  On balance, while the Tribunal considers that the applicant’s Advanced Diploma of Hospitality would be of relatively modest additional value to his existing experience and qualifications in pursuing his stated aim, it acknowledges that the course in which he is presently enrolled is not without value to his plan to open his own café in Turkey.

2. For these reasons, the Tribunal considers that the applicant is now approaching the outer limit of what may be considered genuine study in Australia in the VET sector where that study still credibly holds some value which is consistent with an to stay in Australia temporarily.  This is particularly so in this case, where the applicant has been in Australia since 2009 as a student, has an Australian fiancée, some family in Australia and has pending military obligations in Turkey on his return.  However, the Tribunal accepts in this case that the majority of the applicant’s family remains in Turkey where they operate a successful business, and are prepared to financially back the applicant to open his own restaurant.  The Tribunal found the applicant’s fiancée to be a credible witness at hearing, and it accepts that she and the applicant and their respective families have had detailed discussion as a result of which she plans to relocate to Turkey with the applicant at the conclusion of his present study.  The Tribunal accepts that the applicant will be subject to military service but also accepts that this will not be for a significant period (less than 12 months). Further, while the economic and security situation in Turkey may compare unfavourably with that of Australia, the Tribunal considers that it is generally quite good within the region in which it is located.  Moreover, it accepts that the applicant himself comes from a successful business-owning family and intends to establish his own business there with their financial support.

3. Accordingly, the Tribunal is prepared to accept that the applicant intends to stay temporarily in Australia as a student on the following basis only: that he does not propose any further study beyond the Advanced Diploma of Hospitality to finish in October 2016.

4. 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 for the purposes only of completing an Advanced Diploma of Hospitality which will finish around 7 months from now.

5. The Tribunal notes that if the applicant were to make a further visa application in Australia, it would be highly relevant for a decision-maker to consider his stated aims as given in evidence to the Tribunal in relation to this visa application.

6. 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, it finds that the applicant meets cl.572.223(1)(a).

7. 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

8. 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 573 Higher Education Sector visa:

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

   Alison Mercer
   Member