1506908 (Migration)

[2016] AATA 4195

1506908 (Migration) [2016] AATA 4195 (29 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sukhjit Kaur Bantar Singh

CASE NUMBER:  1506908

DIBP REFERENCE(S):  BCC2015/643540

MEMBER:Alison Mercer

DATE:29 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 29 July 2016 at 5:05pm

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. Where used in this decision:

   ·COE refers to Certificate of Enrolment in a course of study;

   ·PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   ·VET refers to Vocational Education and Training;

   ·A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

   ·The Department refers to the Department of Immigration and Border Protection;

   ·Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   ·IELTS refers to the International English Language Testing System.

3. The applicant, a Malaysian national, applied to the Department of Immigration for the visa on 27 February 2015. The delegate decided to refuse to grant the visa on 6 May 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).

4. The delegate refused to grant the visa because she found that the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations. This subclause required the delegate to be satisfied that the applicant genuinely intended to stay in Australia temporarily, having regard to her circumstances, immigration history and any other relevant matter (which included the factors set out in Direction 53).

5. The delegate noted that since arriving in Australia in April 2009, the applicant had been enrolled in a Certificate IV of Aged Care, Diploma of Community Services (Lifestyle and Leisure), Certificate IV in English as a Second Language (ESL) (Further Study), Advanced Diploma of Management, Certificate IV of Marketing, Diploma of Marketing, Advanced Diploma of Marketing, and was now enrolled in a package of courses consisting of a Certificate IV in Business, Diploma of International Business and an Advanced Diploma of Management (Human Resources). The delegate further noted that the applicant had to date completed the Certificate in Aged Care, Diploma of Community Services (Lifestyle and Leisure), the Advanced Diploma of Management, and the Certificate, Diploma and Advanced Diploma of Marketing.  The delegate considered that the applicant had undertaken multiple, low-level, inexpensive courses all at the vocational level, and that she had changed her field of study on several occasions without any logical reason.  The delegate was not persuaded that the courses that the applicant had completed or the ones which she now proposed to undertake would be of real value to her future career prospects. The delegate concluded that the applicant was in fact utilising the student visa program to reside in Australia indefinitely and was not a genuine temporary entrant for study in Australia.

6. The Tribunal received a review application from the applicants on 20 May 2015.  It was accompanied by a copy of the delegate’s decision and an authority by which she appointed a registered migration agent, Mr Jag Khairra, to be her representative and authorised recipient for correspondence for the purposes of the review.

7. On 21 June 2016, the Tribunal wrote to the applicant via her agent to invite them to a hearing on 12 July 2016.  The applicant was asked to provide any written submissions and/or documents to the Tribunal a week prior to the hearing, including evidence of her current CoE, her previous studies in Australia and an explanation of any gaps in studies. The Tribunal noted that it would be assessing cl.572.223(1)(a), relevant to which were the factors that were set out in Direction 53, a copy of which was provided for reference to the applicant.

8. On 5 July 2016, the Tribunal received a submission from the applicant’s agent enclosing supporting documentation, including:

   ·statement dated 5 July 2016 by the applicant addressing issues raised by Direction 53;

   ·CoEs from the National Training Centre of Australia (NTCA) for the applicant for Certificate IV in Business (2 March 2015 to 30 August 2015),Diploma of International Business (12 October 2015 to 10 April 2016) and Advanced Diploma of Management (Human Resources) (30 May 2016 to 28 May 2017), letter dated 4 July 2016 from NTCA indicating that the applicant was currently studying the Advanced Diploma of Management (Human Resources) and was expected to complete this in May 2017, and letters of completion dated 10 May 2016 and 30 September 2015 from NTCA indicating that the applicant had completed the Certificate IV in Business and Diploma of International Business together with testamurs and transcripts;

   ·proof of completion of the following previous Australian courses: Advanced Diploma of Marketing from Angad Institute of Technology (‘Angad’) (13 January 2014 to 13 January 2015), Diploma of Marketing at Angad (22 April 2013 to 22 October 2013),  Certificate IV of Marketing at Angad (8 October 2012 to 8 April 2013), Advanced Diploma of Management from St Peter Institute (8 August 2011 to 5 August 2012), Certificate IV in Aged Care Work and Diploma of Hospitality, resulting in award of a Diploma of Community Services (Lifestyle and Leisure) at Hays International College (April 2009 to May 2011);

   ·proof of completion of an International Diploma of Administrative Management from the Institute of Administrative Management, UK, in December 2004, certificate of private secretaryship from Stamford College in Malaysia in 1998 and of completion of secondary schooling in Malaysia in 1996

   ·evidence of the applicant’s previous and current Australian employment, including: tax returns for 2011/12 and 2012/13 financial years listing her employers as Blue Cross Community Care Services Pty Ltd and Retirement Care Australia Pty Ltd, and for 2013/14 listing those employers plus Australian Home Care Services and Randstad Pty Ltd, plus contracts of employment with Australian Home Care (as Carer Mobile Overnight Support Service, signed March 2014), Blue Cross Community and Residential Services (as Direct Care Worker, dated 22 May 2015) together with letter of reference dated 14 August 2013 confirming the applicant had worked for Blue Cross for 2 years as a Lifestyle Assistant, with Regis Group (for Aged Care worker position, signed 2 March 2010), PAYG summary statements for 2009/10 showing payers as Retirement Care Australia Pty Ltd, Latvian Friendly Society, and Randstad Health Care Pty Ltd; and

   ·information about a potential overseas employer, the Gurpuri Foundation, and letter of offer from this employer to the applicant dated 5 July 2015.  The potential employer, Sukhdaiv Singh of the Foundation, indicates that it was established in June 2000 as a home for the underprivileged, orphaned and neglected children from all communities.  It was funded by the Sikh community in Malaysia and now owned an Underprivileged Children’s Centre in Kuala Lumpur as well as a rural property.  The plans for the latter included the development of a senior citizen’s home, a skills training centre for school leavers, an underprivileged children’s home, a special children’s home, a single mothers’ home and a training centre.  The organisation had grown significantly since 2000 and continued to develop. Mr Singh stated that the organisation interviewed the applicant in October 2013 and were aware of her qualifications and employment in the aged care field in Australia, and considered that this and her marketing qualifications would be beneficial to the Foundation.  They therefore proposed to employer her as an Administrative Manager/Support Worker, subject to her completing her qualifications.  A job description was provided for the applicant’s proposed position, indicating that the job responsibilities were: managing administrative duties while supporting operations by supervising staff, planning, organising and implementing systems, policies and procedures, and effectively supporting residents and promoting quality of life.

9. In her statement, the applicant relevantly indicated that:

   …

   Career Goals and Future Plans

   I came to Australia in March 2009 to study Certificate IV incorporated with Certificate III in Aged Care Work followed by Diploma of Community Services from Hays International College.  I finished my course in May 2011. I gained the knowledge of Aged Care sector and skills to work in the community services sector.  I learnt how to provide a holistic approach to client needs, including social, emotional, psychological and practical support.  I enjoyed the course as well as the work experience which is a rewarding job looking after the elderly.  Then I further continued my studies by taking the course Advanced Diploma of Management from St Peter Institute to enhance my understanding of managing people as well as providing quality customer service.  I enrolled for this course in August 2011 and successfully completed in August 2012.  This course gave me an insight into management strategies like how to manage organisational change, how to establish and maintain strategic networks etc.  My long term goal is to work in the Management department of a community welfare organisation or a nursing home in Malaysia.  So, I further enrolled into Certificate IV of Marketing from Angad… followed by Diploma of Marketing and finished it in October 2013 to learn fundamentals of Marketing. In this course I covered units like Address customer needs, Conduct market research, Analyse consumer behaviour.  Because I developed an interest in this subject I decided to pursue Advanced Diploma of Marketing and successfully completed it in January 2015.

   In order to pursue my career goal I enrolled and completed Certificate IV in Business and Diploma of International Business and now pursuing Advanced Diploma of Management (HR). The primary reason for undertaking the above-mentioned courses is to further develop my capabilities in the areas of people and business management. This course will further build on the skills and knowledge I already have, as well as representing a progression of my studies to date. But more importantly, it will allow me to further advance my skills in human resource management which is an area I have come to realise I am particularly interested in.  With the skills, education and training I have had in Australia to date, I have been able to work in both the Aged Care industry as well as the wider Community Services industry where I have held such roles as Lifestyle and Leisure officer and support worker.

   Human resource development has an important element to develop my knowledge and skills, which is why it is particularly important for me to complete my current course for my career.  So that on my return to Malaysia, I can start working for the Gurpuri Foundation in a management capacity.  The Gurpuri Foundation provides services to underprivileged, orphaned and neglected children, as well as support services for women, aged care and drug rehabilitation services.

   The foundation of this organisation was established in June 2000.  When I went back to Malaysia in year 2013 where I had a chance to meet with one of the owner of that organisation, we discussed about my current academic and my current job roles where he advise me that my capabilities, skills and qualifications are particularly important to him and to his organisation.  I have been inspired by him doing community services for different age group, therefore I wanted to educate myself and acquire the knowledge and skills so that I can be working as a highly effective member in his organisation.

   Gurpuri organisation has expressed to me the importance of my ongoing development, as the level of courses available in Australia are significantly more sophisticated than those available in Malaysia and provide a higher level of expertise that he will be able to leverage in training local resources.  They also promised to offer me a role in Management department as they were planning to expand their organisation.

   Ties with Family and Home Country

   On completion of my course, I am planning to return to my country to stay with my parents. My mother is a housewife and my dad has retired from work in the security industry.  They are getting older and will eventually need my assistance.  I also have an elder brother who is married with two children – my niece and a nephew that I am very close to.  They also live in Malaysia.  My second brother recently got married here in Australia and is living with his wife.  He works as a supervisor in a warehouse.  My mother also has her older sister, who is my favourite Aunt.  She has not been so well lately and is someone I am very fond of and I look forward to take care of her as well.

   Why National Training Centre of Australia (NTCA)?

   After researching and looking into a number of providers I found that… NTCA provided me with the opportunity to combine several areas of study that I wanted to focus on – being business management and human resource management – and build on each of these in a progressive way.  They also a flexible approach to learning, which would allow me to study through a mix of online, classroom-based and workplace training opportunities.  The entire course is well designed and gradually deepens as we progress through the course.

   The location of the college is very suitable as it is centrally located in the Melbourne CBC which is close to the public transport and easily accessible.

   Why Australia and Melbourne?

   I have close family friends here in Melbourne which has provided me with the opportunity to be more comfortable and choose Melbourne as a place where I can progress my education.  My view of the education system has not changed since my last application.  It is goal oriented and provides excellent building blocks to be used internationally.  If I was to study in Malaysia it would use the Malay language and given my focus is business and human resource management, the fact that I am studying and working in an international and multicultural city such as Melbourne will provide me with better opportunities in Malaysia.

   As I have already lived and studied in Australia, it makes more sense to continue further studies here as I’m well aware of the education system.  I am also accustomed to the lifestyle of Melbourne which makes things easier for me.

   I would like to further confirm that I have genuine intentions to complete my studies.  I have always complied with my previous student visas and completed my studies on time (all list evidence is attached…).

   In the end of this submission it is my humble request to consider my application in the light of compelling circumstances.  Also request that I should be allowed a chance to finish my studies.  All I want a chance to prove myself as a genuine student.

   …

10. The applicant appeared before the Tribunal on 12 July 2016 to give evidence and present arguments.

11. She told the Tribunal that she was now doing the Advanced Diploma of Management (Human Resources) and was due to complete this, the last of a package of courses, in May 2017.  The applicant confirmed the contents of her written statement, indicating that she originally came to Australia to study Aged Care because she went to a seminar coordinated by the Australian High Commission in Malaysia about educational courses in Australia and the Aged Care one interested her.  She then did the Diploma of Community Services to broaden her skills and employability. Both these courses involved work placements.  In response to the Tribunal’s query, the applicant said that in Malaysia, they did not have courses like these, nor were there the same kind of community services. The Tribunal asked why the applicant chose to study these courses if there was no obvious career path to use them in her home country.  The applicant said that she was not sure of her career path at that time as the facilities for aged and community care in Malaysia were not like those in Australia.  She said that at the time, she was thinking about setting up a small nursing home in Malaysia.  In response to the Tribunal’s query, the applicant said she would need to obtain private and/or government funding to establish such a business. She said she did not have the personal financial backing to do so but she had relevant experience from her studies here. This was also why she undertook the Management and Business courses, to gain the knowledge to run her own business.   The applicant said that she also studied Marketing for this reason, so she would know the basics of how to promote a new business.  The Tribunal queried why the applicant completed a Certificate IV, Diploma and Advanced Diploma in Marketing, if she simply required a basic knowledge of Marketing for her proposed business. The applicant said that she believed she needed to understand not only the basics of Marketing but more advanced skills to develop a longer term marketing plan.  She said that she thought it was important to expand her knowledge.

12. The applicant confirmed that she then enrolled in a Certificate IV in Business, Diploma of International Business and Advanced Diploma of Management (Human Resources), and that she had completed the first 2 courses and was currently undertaking the last one.  When asked why these were relevant to her proposed career plans, particularly the Diploma of International Business, the applicant said that she believed these courses were relevant. In relation to the Diploma of International Business, she said this would help her expand the non-government organisation Gurpuri Foundation for which she planned to work in Malaysia to solicit donations and funding internationally.  The Foundation was expanding and she and its principal Mr Sukhdaiv Singh believed it would be important to secure funding from outside Malaysia (if possible) as well as donations and/or government funding within Malaysia.

13. The Tribunal reviewed the subjects from the applicant’s transcript for the Diploma of International Business and observed that they appeared focussed on international trade, and not on the kind of activities undertaken by an NGO.  The applicant maintained that she had expanded her knowledge and believed that these subjects would assist her to build the profile of the Gurpuri Foundation within and outside Malaysia. She explained that she was introduced to Mr Singh of the Gurpuri Foundation in late 2013 on a visit home.  He was a mutual family friend and a principal of the Foundation.  He was interested in her coming to work for the Foundation, given her qualifications in Aged Care and Community Welfare, but wanted her to obtain further qualifications in Human Resource (HR) Management.  The Tribunal queried why she then undertook a Certificate IV of Business and a Diploma of International Business prior to taking the Advanced Diploma of Management (Human Resources), which added both additional time and costs to her study in Australia.  The applicant said that these courses were a package. The Tribunal queried why she would not have simply found a stand-alone HR course, either here or in Malaysia, rather than spend an extra year and tuition fees completing the Certificate IV and Diploma prior to the Advanced Diploma of Management (HR).  The applicant said that Australian qualifications in this area were more sophisticated than Malaysian ones, and if she now wished to study at tertiary level in Malaysia, she would have to study in Malay and she preferred to study in English as she was now familiar with the Australian education system.  As to the fact that she enrolled in a package of courses, the applicant said that she believed all study was valuable. The Tribunal indicated that that might be so as a general concept, but it had to assess her choice of courses in the context of whether or not she was a genuine entrant to study in Australia temporarily or whether she was using the student visa program to maintain ongoing residence in Australia, noting that she had been here virtually continuously since April 2009 and, if granted a further student visa, would have resided in Australia for approximately 8 years.  The applicant maintained that upon completion of her Advanced Diploma of Management (HR), she would return to Malaysia as she had done enough study.

1. In relation to her incentive to return to Malaysia, the applicant said that her parents and older brother and his children are there, as well as her maternal aunt, and she was close to all of them. In response to the Tribunal’s query, the applicant said that she has returned to Malaysia twice since coming to Australia in April 2009 but that this was largely due to the fact that the courses she had undertaken to date only had very short semester breaks of approximately 2 weeks, which made it difficult to travel back to see her family.  However, she stated that various family members had visited her.  Her mother had visited her 4 times since 2009 and was currently visiting.  Her cousins and brother and nieces had also visited at various times. The applicant said that her younger brother and sister in law live in Australia, as her sister in law is an Australian citizen. She lives with them.  She is financially supported by her parents to study in Australia although she also works part-time, within the conditions of her student visa.  Presently, she is working for Blue Cross as a Direct Care Worker, having previously been in the Aged Care area there.  She said that she found this work rewarding and believed it would be highly relevant to her intended employment with the Gurpuri Foundation on her return to Malaysia. The applicant said that what Mr Singh is offering for her employment will combine being part of the management team of the Foundation with being a Support Worker as well. 

2. In response to the Tribunal noting that it appeared unusual for an organisation to keep a position open for someone for over 3 years, the applicant said that she and Mr Singh keep in regular contact and he has been like a mentor to her, as he considers that she will be a valuable addition to the management and day to day activities of the Foundation once she completes her studies. The area of community welfare is not a high status one in Malaysia but she is committed to it, and it is not easy for organisations like the Foundation to attract high calibre, committed employees. She will be able to bring a range of skills to the Foundation, which is now expanding.  There was not a lot of competition in its field in Malaysia but the aim of the Foundation was to significantly raise its profile and awareness of its activities and funding needs, and her Marketing subjects would assist her to develop strategies to do this.

3. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

5. 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)     …

6. 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.

7. 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.

8. The Tribunal has considered the applicant’s oral and documentary evidence, and the factors in Direction 53, carefully.

9. The Tribunal acknowledges that the applicant’s parents and 1 of her brothers (and his children), plus various aunts and uncles, are in Malaysia, and considers these family ties to be a significant incentive for her to return there.  However, it also gives weight to the fact that the applicant has now been in Australia for over 7 years, during which time she has returned to Malaysia twice only, once in 2010/11 and once in 2013.  The Tribunal has taken into account the applicant’s evidence that she did not return to Malaysia often due to the short semester breaks in the courses that she had taken, and that family members (notably her mother) had visited her in Australia since her arrival in April 2009. It nevertheless considers that she has demonstrated that her family ties to Malaysia have not provided a strong incentive for her to return there up to date.  Moreover, the Tribunal considers that the applicant also has strong family ties in Australia, as her brother and his wife reside here permanently, and the applicant has been living with them since her arrival in Australia.

10. The Tribunal is satisfied that the economic and political situation in the applicant’s home area of Malaysia is relatively stable, and does not present a significant disincentive for her to return to Malaysia. 

11. The applicant argued that the duration of her stay in Australia was due to her genuine study here, and that all the courses that she undertook, and continues to undertake, had contributed to her expanding her knowledge and skills.  While this may be the case in general terms, the Tribunal has concerns about the extent to which the courses undertaken to date, and in particular, the proposed Human Resource course, will actually provide any realistic career benefit to the applicant.  The Tribunal notes that the applicant has given oral and documentary evidence indicating that she has been offered employment in Malaysia by the Gurpuri Foundation as an Administrative Manager/Support Worker, and that this had been made to her in late 2013 by one of the Foundation’s principals, Mr Sukhdaiv Singh.  The Tribunal further notes that in July 2015, Mr Singh wrote to confirm that the Foundation wished to appoint the applicant to a position, subject to her finishing her studies in Australia (at which time the applicant had just completed a package of marketing courses and had started the current package of courses comprising the Certificate IV in Business, Diploma of International Business and Advanced Diploma of Management (HR)).  As discussed with the applicant, the Tribunal did not consider it plausible that the Foundation would genuinely offer employment in late 2013 and be content to wait until almost mid-2017 for the applicant to return to Malaysia and take up the offer.  The Tribunal has considered the applicant’s explanation that Mr Sukdaiv Singh has become a mentor to her and is happy for her to complete the current proposed courses (as well as her previous studies) in Australia as it is difficult to recruit suitably qualified candidates for management positions within the NGO community welfare sector in Malaysia due to the relatively low status of this area there.

12. The Tribunal acknowledges that it may be difficult for NGOs in the community welfare and/or aged care sector in Malaysia to attract well qualified staff who are committed to working in that area, but it considers that the applicant would be more than well-qualified to contribute to the Foundation with the level of skills, qualifications and employment experience she currently has, which include:

    ·Diploma of Business Management in the United Kingdom (2004);

    ·Certificate IV in Aged Care Work in Australia (2009 – 2010);

    ·Diploma of Community Services in Australia (2010 – 2011);

    ·Advanced Diploma of Management in Australia (2011 – 2012);

    ·Certificate IV in Marketing in Australia (2012);

    ·Diploma of Marketing in Australia (2012 – 2013);

    ·Advanced Diploma of Marketing in Australia (2014 – 2015);

    ·Certificate IV in Business in Australia (2015);

    ·Diploma of International Business in Australia (2015 – 2016); and

    ·ongoing part-time employment with various Australian employers in aged care and community support work from 2011 to date.

13. This raises a significant issue for the Tribunal; namely, why she would now need or wish to undertake additional studies in International Business and Human Resource Management in Australia to achieve her stated aim of returning to Malaysia and taking up a position with the Gurpuri Foundation.

14. The applicant gave evidence that part of her duties at the Foundation would involve supervising other staff, and that she had discovered a particular interest in Human Resource management, and that having this kind of qualification make her more valuable to the Foundation. The Tribunal has considered these explanations but is not satisfied that they are genuine.  It does not consider that the applicant has provided a plausible reason why she is not more than adequately equipped to return to Malaysia and join the Foundation at the time of the Tribunal’s decision, at which time she has a number of qualifications in Business, Marketing, Management, Aged Care and Community Welfare, and has some 5 years of work experience in this field and will have just completed a Diploma in International Business.  The Tribunal is not satisfied that there is any realistic benefit to the applicant in now completing an Advanced Diploma of Management (HR) in light of her stated intention to return to Malaysia and work with the Foundation.  The Tribunal accepts that the role envisaged for the applicant within the Foundation appears to be a hybrid of Support Worker (for which she is amply qualified) and Management, which appears to incorporate some staff supervision.  Given the business and management courses undertaken to date by the applicant, the Tribunal is satisfied that she is well qualified to fulfil such a role and that the further study of a course in HR would not appear necessary for her to carry out the role that she has been offered.

15. Taking the evidence before it into account, the Tribunal considers that, rather than being a genuine pathway to academic progress or career enhancement, the applicant has enrolled in the present courses as a means of ongoing residence in Australia.

16. 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).

17. 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

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

    Alison Mercer
    Member