1506321 (Migration)

[2015] AATA 3907

1506321 (Migration) [2015] AATA 3907 (17 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kazuko WAKABAYASHI

CASE NUMBER:  1506321

DIBP REFERENCE(S):  BCC2015/1004143

MEMBER:Susan Pinto

DATE:17 December 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 17 December 2015 at 2:13pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Japan who is aged in her late 30s. The applicant first arrived in Australia on an Electronic Visitor visa on 16 February 1997. Since that time she has travelled in and out of Australia on different visas, and on 4 March 2008 she was granted a Student visa. The applicant has completed studies in Australia in Business and Sport and Recreation and Development. The applicant applied to the Department of Immigration for this Student visa on 1 April 2015 in order to undertake a Certificate III in Fitness which commenced on 4 May 2015 and will cease on 2 May 2016.

2. 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 in Australia as a student. 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).

3. The applicant appeared before the Tribunal on 15 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages. The applicant was represented in relation to the review.

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.

9. In response to a request from the Department regarding the Genuine Temporary Entrant Criterion, the applicant provided a statement in which she stated that she has chosen to study fitness because her goal is to become a dance trainer and open her own international dance studio in Tokyo when she returns to Japan. The applicant has learned sport in recent years and when she spoke to her trainer at the Eagle Academy she suggested that the fitness course is more practical and she will then be able to obtain a qualification to teach in groups. She states that she has studied sport for three and a half years and the campus she has chosen is located in a sports centre and she can watch how people train and use the equipment to learn how to conduct training. The applicant states that she has chosen to study in Australia rather than Japan because people will be required to communicate in English for business, especially the sports industry as Japan will soon become an Olympic host. However, it is difficult to find a place where they can learn English. She also states that sport is not as popular in Japan and she wants to pursue this in Japan and work as a dance instructor, studio manager or personal trainer.

10. The applicant provided copies of several documents to the Department, these included certificates in relation to the completion of her studies, including a copy of her Bachelor degree from Komazawa University in Japan; her curriculum vitae; and identity documents.

11. When lodging the application to the Tribunal, the applicant provided a copy of the delegate’s decision record. The decision record indicates that since her first arrival to Australia in 1997, the applicant travelled to Australia on several occasions on different visas. The applicant was granted a Working Holiday visa on 2 December 2005 and a further Working Holiday visa on 23 November 2006. She was then granted a Subclass 572 visa on 4 March 2008 and since that time she has spent 2370 days in Australia and only 214 days offshore. The delegate’s decision record also indicates that she has completed certificates and diplomas in Business and then undertook a Certificate I, II and III in Sport and Recreation and a Diploma of Sport Development. The delegate found that the applicant is using the Student visa as a means of maintaining ongoing residence in Australia.

12. The applicant also provided further copies of the above documents to the Tribunal, as well as a Confirmation of Enrolment in relation to the Certificate III in Fitness which she is currently undertaking and a statement in relation to the course she has satisfactorily completed to date. In a statement to the Tribunal, the applicant set out a history of her study in Australia and her reasons for undertaking her previous and current studies. The applicant states that when she was nearly at the end of her Working Holiday visa she began thinking about staying in Australia to study business. At that time she was not thinking of working in the fitness industry and she was planning to return to Japan following the completion of those studies. However, “there was a mind change” in her career when she began dancing at the Pole Gym in Brisbane. The applicant began thinking about learning sports and set her goal as establishing an international pole/fitness studio in Japan. The applicant states that she has never worked in the sports industry and learning sport is a new field so she started from the Certificate I and then progressed to the Diploma. The applicant subsequently talked to the staff at the Eagle Academy and she was advised that the fitness course which she is currently undertaking is designed for someone who wants to train others in the sports industry and she believes it would be great if she could add the course to her education history before she takes action to achieve her goals.

13. The applicant also states that she has chosen to study sports and fitness in Australia because it is more developed than in Japan and people are more interested in this area and enjoy their workouts. The applicant also states that she has seen elderly and disabled people and expectant mothers engaging in their workouts and dancers are of a variety of age, gender or nationality. The applicant provided a map of Tokyo showing the location of various dance studios and states that pole dancing and fitness is a new area in Japan and she would like to establish a bilingual website and include a timetable with prices, instructors and class descriptions.

14. At the Tribunal hearing, the applicant confirmed that she has completed a Bachelor of Sociology in Japan. She stated that she first came to Australia in 1997 and travelled to and from Australia on several occasions. The applicant confirmed that she was granted a Student visa in 2008 and has completed studies in business and sports and development. When asked why she decided to study in Australia in 2008, the applicant stated that she wanted to get an office job and began studying business. The applicant subsequently decided she was more interested in sports and fitness and has undertaken studies in that area. When asked why she has now enrolled in a Certificate III in Fitness, which is a relatively low level course, the applicant stated that she wants to do something more general and practical which will assist her to build her career. The applicant has learned about sports and development but she now wants to undertake fitness studies in order to manage a dance studio.

15. The Tribunal commented that the subjects she is undertaking for the Certificate III in Fitness appear to be very similar to subjects she has undertaken in the past in relation to her previous courses which also had fitness related subjects. The applicant stated that even though they have similar names they are different and are more practical in scope. In response to the Tribunal’s comments that she has been studying in Australia and undertaking very low level courses for some seven years, the applicant stated that her current studies will assist her in her future career in fitness and establishing a dance studio. When asked if she has ever worked in that area, the applicant stated that she has not done so, but she attends the Pole Gym in Brisbane three times a week. When asked if she has done any training or undertaken any courses in pole dancing or instructing, the applicant stated that the instructors have undertaken certificate courses in fitness. In response to the Tribunal’s comments that its inquiries on the Internet during the hearing indicate that there are specific courses for pole dancing instructors, the applicant indicated that she believed that the instructors undertook training and fitness courses. The representative submitted that the applicant would not have undertaken a course as a pole dance instructor because it is not a registered course.

16. The Tribunal accepts that the applicant has undertaken all of the courses in which she is enrolled and is currently studying the Certificate III in Fitness. The Tribunal does not accept that this establishes that the applicant is a genuine applicant for entry and stay in Australia as a student. As indicated above, the applicant has been residing in Australia on different visas for a number of years. She has also been studying in Australia in relatively low level courses for some seven years. The Tribunal found the applicant’s evidence at hearing as to her interest in establishing a pole dancing studio or working in this area to be unpersuasive. The Tribunal considers that the documentation the applicant has provided in relation to her past and current studies indicate that she has previously completed similar subjects to the subjects she is now undertaking. The Tribunal accepts that the pole dancing instructor course is not a CRICOS registered course. However, the Tribunal considers that if the applicant was genuinely interested in pursuing a career in this area that she would have undertaken some inquiries about this type of course.

17. The Tribunal is drawn to the conclusion, given the applicant’s lengthy period of time in Australia on various visas, as well as her lengthy period of time on a Student visa where she has studied relatively low level courses and now seeks to undertake a further certificate course, as well as her unpersuasive evidence regarding her future career and intentions in relation to her studies, that the applicant is relying on the Student visa as a means of maintaining ongoing residence in Australia. The Tribunal is not satisfied that the applicant’s evidence establishes that she has done anything more than attend a gym where she participates in pole dancing, and considers that she has attempted to rely on her interest in this area to establish a basis for remaining in Australia. 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.572.223(1)(a).

18. 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

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

    Susan Pinto
    Member