1507017 (Migration)

[2016] AATA 4482

1507017 (Migration) [2016] AATA 4482 (4 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Paola Andrea Crespo Ayala

CASE NUMBER:  1507017

DIBP REFERENCE(S):  BCC2015/804178

MEMBER:Miriam Holmes

DATE:4 October 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 04 October 2016 at 11:34am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 12 March 2015. The delegate decided to refuse to grant the visa on 4 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).

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 because the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily.  

4. The applicant appeared before the Tribunal on 2 September 2016 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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)     …

9. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

10. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

11. The Tribunal had regard to direction number 53 and the following matters in assessing whether it is satisfied that the applicant intends genuinely to stay in Australia temporarily.

12. The applicant was born in 1978 in Colombia and she is 37 years old and a citizen of Colombia.

13. The applicant’s parents reside in Colombia. The applicant’s parents are divorced. They divorced approximately 12 years ago.

14. The applicant’s mother has re-partnered and has been working for 40 years in Colombia. Her mother currently works for the Recreation Department of the Colombian government.

15. The applicant’s father worked for approximately 27 years for the Gillette company in Colombia. He ceased working approximately a year ago when the Gillette factory was closed. Since then he has worked as an unpaid soccer coach teaching young children. Her father recently turned 61 years of age and he commenced receiving the age pension. The applicant’s father did not work in the period between the Gillette factory closing down and turning 61 years due to the potential adverse impact on his pension in Colombia. The applicant states that her father is lonely and seeking the company of his daughter to return to Colombia and for them to establish a sports club together.

16. The applicant has one sister aged 35 years. The applicant’s sister is currently living in Australia on a student visa. The applicant’s sister has been in Australia for approximately 3 years on a student visa. The applicant’s sister is married and expecting her first child, due next March 2017. The applicant is currently residing with her sister and brother in law. Her brother-in-law is currently in Australia on a student visa and studying a Master’s course.

17. The applicant attended primary and secondary schooling in Colombia and successfully completed those studies. Thereafter the applicant started a tertiary level course being a five-year course in a Bachelor of Sports and Physical Activity. The applicant undertook this Bachelor’s course in 1997 and for the first semester of 1998, however she then ceased studying the Bachelor’s course.

18. Whilst in Colombia the applicant played volleyball for her secondary school and for the representative provincial team competing against other provinces. She played at this higher level of volleyball for approximately 6 years.

19. In 1999 the applicant did not study but worked teaching Zumba classes and coaching cheer leaders.

20. From approximately 1999 until 2004 the applicant successfully undertook and completed a Bachelor of Finance and International Business at Santiago De Cali University. The applicant did not work during this period.

21. Between 2004 and 2009 the applicant worked in various positions at different worksites for a number of large companies in Colombia.

    ·Just prior to graduation in 2004 the applicant successfully secured employment as an export coordinator with a business known as Caravajal. The applicant was an export coordinator and was involved in the export of books. The books were exported to other countries in South America. The applicant worked in this position between 2004 and 2005.

    ·In 2005 the applicant worked as an export and import coordinator for the Pfizer pharmaceutical company in their warehouse for a period of two months. However the warehouse burnt down due to an accident and her employment ceased.

    ·The applicant was then unemployed for a period of four months.

    ·Between 2005 and 2006 the applicant worked for another pharmaceutical company, La Francol, in the role of import and export coordinator.

    ·In 2006 the applicant changed employers and commenced working for a private company providing advice in relation to customs regulations. Her primary role was to advise Johnson & Johnson, a major company, regarding the customs regulations pertaining to Colombia. She undertook this work for approximately 18 months.

    ·Thereafter she was approached by JP Morgan who requested that she join them to undertake the work of providing customs advice to Johnson & Johnson. Between 2006 and 2009 she worked with JP Morgan advising Johnson & Johnson regarding customs regulations and was employed under better terms and conditions in this position.

22. Between 1999 and 2009, the applicant intermittently undertook teaching Zumba exercise classes and Salsa dance classes in Colombia.

23. On 16 March 2009 the applicant was granted a student subclass 570 visa to travel to Australia. The Tribunal notes that a subclass 570 visa is granted to persons who travel to Australia to study the English language. The applicant told the Tribunal that her plan in coming to Australia in 2009 was to learn to speak English as she could not speak English. She stated that when you have a good job in Colombia, if you wish to improve your employment prospects and your career is important, the person has to have English language skills and also have a Master’s qualification. She stated that to work in a big company in Colombia and to be successful it was necessary to have English language skills and a Master’s degree. The applicant stated that she had not been fortunate to study English whilst she had been a student in Colombia and considered that she would come to Australia to improve her English language skills. The Tribunal queried why she perhaps did not travel to the United States, which was closer to her home country, and she stated that in the USA there were not good education facilities and Australia had better education facilities.

24. The applicant confirmed that since arriving in Australia she has been granted six student visas and is now seeking a seventh student visa. The applicant also confirmed at the hearing that she held two visitor visas in 2011. This is consistent with the departmental movement records.

25. The Tribunal queried why the applicant held two visitor visas in Australia in 2011 and the applicant responded that she wanted to travel around Australia and she had not had that opportunity whilst she had been studying in Australia.

26. The Tribunal had regard to the applicant’s studies and academic progress between 2009 and 2016. The Tribunal finds that between 2009 and 2015 the applicant has been enrolled in nine courses.

27. Initially, the applicant undertook Certificate I and Certificate II courses in Spoken and Written English. She undertook and successfully completed those courses between April 2009 and October 2009.

28. In January 2010 the applicant commenced an IELTS further study preparation course for a period of 10 weeks at Impact.

29. Thereafter the applicant undertook a graduate Certificate in Management at Holmesglen which she completed in December 2010. The applicant states that she undertook this course because she thought that if she could obtain a diploma then she would be able to obtain a good job in Colombia. She also referred to her cousin advising her that to obtain a good job in Colombia she required a Master’s qualification.

30. The applicant did not undertake any studies in term one or term two of 2011. In this period the applicant travelled around Australia whilst holding visitor visas. She stated that whilst studying in Australia between 2009 and 2010 she had not time to travel around Australia. In 2011 the applicant also travelled to Thailand and Indonesia for a few days.

31. In term three of 2011 the applicant studied English for academic purposes course. The completion of this course is noted in the transcript of results provided by Central Queensland University on 30 March 2015.

32. During term one and term two of 2012 and term one of 2013 the applicant undertook and successfully completed a Master of Management (International Business) at Central Queensland University. The applicant held a subclass 573 student visa to undertake the Master of Management course. The applicant stated that she undertook this course because it is really important to have a Master’s qualification to obtain a good job. The applicant stated that whilst she was on a visitor visa that she spoke with her cousin who had been providing her with financial support to undertake studies in Australia.  Her cousin has a good job with Henkel, a company operating in Colombia. Her cousin advised her that he was prepared to support her to continue her studies in Australia and that to succeed in her career she would need to have English language skills and obtain a Master’s degree. Consequently after the expiry of her visitor visas she made arrangements to undertake the Masters of Management in International Business at Central Queensland University.

33. In 2014 the applicant was enrolled in and commenced a Certificate IV in Information Technology at Baxter Institute. The applicant was granted a student subclass 572 visa to undertake this course. The applicant told the Tribunal that she decided to pursue studies in the Certificate IV in Information Technology because it would be good knowledge for her to secure a job. The Tribunal queried why this was the case and she replied that she really liked information technology and when she had had good knowledge of information technology it would be complementary to her other knowledge and skills. She confirmed that she did not wish to work in the information technology sector but wanted to have knowledge in computers such as application such as Excel, Java and other applications to assist in her work ambitions. The applicant stated that when she had worked at Johnson & Johnson she had to use a lot of applications, including SAP, and took a lot of time to work through this new program and had many other applications to understand.

34. The Tribunal queried why the applicant did not return to Colombia once she had completed the Masters course and also completed numerous English language courses such that she now had the English language skills and Masters qualification to secure better employment in Colombia. The applicant replied that she wanted to learn information technology and to obtain knowledge in this area. The Tribunal queried given that she had achieved her objectives in enhancing her English language skills and obtaining a Masters qualification, on one view pursuing further studies in Australia was indicative that she was using the student visa program to remain in Australia. The applicant replied that she considered undertaking an information technology course would help a lot in working in a big company and she stated that everyone who works in Colombia has a background in information technology. The Tribunal noted that she had previously worked in large companies in Colombia without an IT qualification. The applicant referred to her experience at Johnson & Johnson in implementing the SAP program and that it was really hard for everyone at the business to learn this new program and they had to complete a course so they had sufficient knowledge to use the SAP application.

35. The applicant confirmed that she did not complete the Certificate IV in Information Technology at Baxter Institute. The applicant confirmed at the hearing that her enrolment at Baxter Institute was cancelled on 13 May 2014. The applicant stated that she ceased studying at Baxter Institute about the end of April 2014. The applicant outlined that she had a number of concerns regarding the course, including that the course did not initially commence when scheduled and was delayed, that the teacher was not actively teaching and she was relying on her former boyfriend in Australia to assist her in undertaking the information technology studies, that the physical conditions of the classroom were undesirable, that she was having to pay for photocopying and other services despite already paying fees for the course. She realised that she was wasting time in pursuing the course given the quality of education being provided at Baxter Institute. The applicant recounted how she lodged a number of complaints and secured the assistance of another Spanish-speaking employee at Baxter Institute to assist her to secure a release from the course and from Baxter Institute. The applicant has provided to the Department and the Tribunal various correspondence showing her attempts to be released from the course. The Tribunal notes that on 2 April 2014 the applicant requested to withdraw from the Baxter Institute course however in correspondence dated 27 May 2014 Baxter Institute refused to grant the release. The applicant recounted how she used the assistance of the Spanish-speaking employee to secure a release letter on 12 June 2014 from Baxter Institute. She noted that Baxter Institute requested that she change her letter of complaints and pay additional monies in order to secure the release letter. The applicant’s evidence was consistent with her letter dated 30 March 2015 to the Department setting out her concerns regarding the Baxter Institute and her attempts to seek a release letter. The Tribunal accepts the applicant’s evidence regarding her concerns about the quality of education and physical facilities provided by Baxter Institute and that she chose to not continue with the course in such circumstances and to pursue an alternative course.

36. Although the Tribunal notes that the applicant did not pursue further studies in information technology, rather she chose a new direction and pursued studies pertaining to fitness sports and recreation. In April 2014 the applicant secured a letter of offer from the Australian College of Sport and Fitness to undertake a Certificate III and Certificate IV in fitness between April 2014 and September 2015.

37. The visa application currently before the Tribunal, being the applicant’s sixth student visa application to remain in Australia, was made on 12 March 2015. The application was made three days prior to the expiry of the existing subclass 572 visa.  The visa application was made on the basis that the applicant wished to undertake a Certificate IV in Fitness and a Diploma of Sports and Recreation Management. The applicant has subsequently provided correspondence dated 9 April 2016 indicating that the applicant undertook a Certificate III in Fitness between 11 July 2014 and 22 January 2015 and that she undertook and completed a Certificate IV in Fitness between 23 January 2015 and 21 January 2016. The applicant is currently enrolled and undertaking a Diploma of Sport and Recreation Management which commenced in January 2016 and is due to be completed on 26 January 2017.

38. In the applicant’s letter dated 30 March 2015 to the Department she stated that sport is something that she has loved her whole life and she like’s that it is helpful for those who want a healthy lifestyle. She spoke to the student agency about taking a course in fitness and Latino Australia gave her the option to do a course in fitness because at the Australian College of Sport Fitness. She states that she is happily studying what she loves and is passionate about and she will complete the course.

39. The applicant told the Tribunal that she pursued a Certificate III and Certificate IV studies in fitness and the diploma sports recreation management after discussion with her father who indicated that he wished to establish and invest in a sports club in Colombia. She stated that their plan was to establish a sports club for children in Colombia. She stated that there was no support for the children in Colombia and that her father had been coaching children in playing soccer, because he had previously been a highly skilled soccer player until suffering injury. She stated that her father had volunteered as a soccer coach however he quit when it became apparent that a number of the children did not have breakfast because they could not afford to eat. She stated that she had discussed with her father the possibility of creating a club where there was food available every day and her father could train the children in soccer. Her role was to establish and create the club and her father would be the soccer trainer. She stated this is why she has been undertaking the fitness course and the diploma course. The applicant stated that during the current course she has put forward a presentation regarding the establishment of a business in fitness. The Tribunal queried on what basis this new soccer club would be funded and she stated that her father is retired and would invest money and also her cousin who had substantial sums would invest money and they would also secure sponsors. The applicant referred to her father being the friend of a well-known soccer coach in Colombia who would be able to assist in secure funds. She also referred to her father suffering from a lot of depression and living by himself.

1. The Tribunal queried the relevance of the current course, in particular the Diploma of Sport and Recreation Management to the plan of establishing a soccer club in Colombia. The applicant stated that in the Diploma course she was learning things like how to create a plan to establish and manage a business. She then referred to her father suffering depression and being lonely and referred to him being abandoned as a young child and that her father looks at her to see what she has achieved and what he might have achieved. The Tribunal queried why the applicant has not returned to Colombia previously given the substantial number of qualifications she already has both in management and the Certificate III and Certificate IV in Fitness and she responded that she doesn’t have a Certificate that she can do anything. The Tribunal noted that she ready had a Certificate III and Certificate IV in Fitness, as well is a Masters of Management and queried why it was necessary for her to secure a Diploma of Sports and Recreation Management. She referred to securing the knowledge about how to create a business in the fitness industry and that was why she requires the diploma qualification. She stated that part of this semester’s course was how to create a business and how to work with people because sport is totally different and involves working with people.  The Tribunal noted that most businesses involved working with people and the applicant responded referring to a person in the sporting area being able to manage injury and to be aware of different risks. The applicant stated that when she finishes the course in January 2017 and as soon as she receives her Diploma then she will return back and help her father. The Tribunal queried whether she would go back to Colombia and she confirmed that she would return to Colombia after completing a Diploma of Sports and Recreation qualification and she stated that she would not apply for a further visa to remain in Australia.

2. The Tribunal notes that the applicant returned to Colombia over the semester break between late 2012 and early 2013 for two months. This is the only time since 2009 that the applicant has returned to Colombia. The Tribunal expressed its concern as to whether the applicant would return back to Colombia given that she had only returned once to Colombia since arriving in Australia in 2009, over a period of seven years. The applicant stated yes she knew this but she will go back. The Tribunal also expressed its concern about whether the applicant would return to Colombia given that the time when she held a visitor visa she chose to travel to Thailand on a holiday rather than return to Colombia for a visit. The applicant confirmed that she went to Thailand and did not return back to Colombia.

3. The Tribunal had regard to the applicant’s work history in Australia. The applicant stated that between 2009 and 2011 she worked as a cleaner in Australia. Since 2012 she has worked as a zumba teacher and as a barista. The applicant has worked for multiple fitness centres, including South Pacific, the YMCA and good life gym working 1 to 4 hours at each facility up to 10 hours per week with the pay range in the vicinity of $60 per hour to $45 per hour. The applicant stated that initially that she earned approximately $600 per week as a zumba teacher. In addition she has worked as a barista two days a week and earns approximately $200 per week. The applicant confirmed that she earned approximately $800 per week from her employment in Australia. Although later the applicant retracted this evidence and stated that her work from zumba teaching was variable and could be less than $600 per week depending on where work was available for her.

4. The applicant has no assets in Colombia. Her father’s apartment is in her and her sister’s name but her father does not pay her rent and she says it is his house and he has always lived there.

5. Near the close of the hearing the Tribunal indicated that it may not be satisfied the applicant has an intention genuinely to stay in Australia temporarily. The Tribunal noted that the applicant arrived in Australia in 2009 and was generating income in the vicinity of $800 per week; that her sister was currently living in Australia and is pregnant and due to have a child in March 2017 and the applicant is her only family in Australia and may wish to have the applicant present to support her; the applicant has stated that she travelled to Australia to study English and to pursue a graduate Certificate to secure a good employment in Colombia. However after completing those courses the applicant remained in Australia on tourist visas and travelled around Australia and did not return to Colombia; the applicant stated that she had planned to undertake a Masters course to improve her job prospects however after completing the Masters course remained in Australia and applied to continue her studies in Australia;  the applicant has only returned to Colombia in 2012 - 2013 whilst in the middle of studies; the applicant commenced information technology studies with a view to improving her range of skills for her future employment but did not pursue this area of studies at another institution when she was unhappy with the service at the Baxter Institute; the applicant then change direction and is now pursuing fitness studies.

6. After a break in the hearing, in response to the Tribunal’s concerns, the applicant stated that when she studied in Colombia she did not finish her sport course. She only completed three semesters and wants to secure the qualification to work in that field in Colombia. Her sister is in Australia, however her father is in Colombia and he is getting older and he needs the applicant. Her father is divorced and her mother has a new partner. Her father has a good financial history and can support her when they return. Her cousin is very wealthy and he can also support them. Her father is 62 years of age and healthy but he needs the applicant a lot. Her mother has told her that her father stays at home and he needs the applicant. The applicant stated that she does not have a boyfriend or partner in Australia, but her sister is married and will have her own family.

7. The Tribunal expressed its concern that the applicant has dropped to studying lower levels of education and has had multiple course changes with different subject matter. The applicant replied that she wants to study and studies what subjects she likes and that will help her life and career.

8. The representative made various submissions regarding the applicant’s length of stay in Australia, the plan to set up a club with her father and her studies. The representative noted that the applicant had declined an opportunity years ago to apply for a partner visa. The representative also noted that the applicant had received the financial support of her father and cousin to remain in Australia and her pay for zumba classes was more likely between $60 to $45 per hour for up to 10 hours each week. He also noted that it is open to the delegate, if the visa is granted, to include a condition 8503 to and 8534 to limit a further application and the Tribunal should take into account the applicant has not enrolled in any further courses.

9. After the hearing, the Tribunal received a further information. A statement from the applicant’s father about the plan to establish a sports club for children that they will have funding from the City Hall of Santiago de Cali and the applicant’s father and cousin will also fund the club. He also notes that with the Diploma in Sport Administration the applicant can be linked as the President of the club. He states that they are awaiting her credits as a manager in the sports field. There is also a certification that the applicant’s father works as a trainer at a football club.  The applicant also provided a copy of a letter regarding the requirements to form a sports club or football school. It states that the vice president and or president of the club must have one of a range of requirements – either academic qualifications or relevant experience. The Tribunal notes that this letter does not specify that completion of the Diploma of Sport and Recreation Management at the Australian College of Sport and Fitness will meet the requirements or that completion of the Certificate III or Certificate IV course in Fitness in Australia would not be sufficient to meet the requirements.

10. After carefully considering the evidence and the Direction no 53, and the matters specified in cl.572.223(1)(a), the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.

11. The applicant’s parents, her mother and father, currently reside in Colombia and this is an incentive to return to Colombia.

12. The applicant has also successfully completed a range of courses in Australia, including her two most recent fitness courses, which demonstrates a commitment to comply with the purpose and conditions of the numerous student visas that she has held since 2008.

13. However, the Tribunal considered a range of other factors and after weighing the various factors it is not satisfied that the applicant intends genuinely to stay in Australia temporarily.

14. The applicant has been living in Australia since 2008, a period in excess of eight years. The applicant is settled in Australia – she has spent the last eight years living and working in Australia. The applicant has only returned once to Colombia since 2008 – this indicates that she does not have a strong incentive to return to Colombia. The applicant has chosen to travel to Thailand when travelling overseas, rather than return to Colombia. The applicant’s length of stay in Australia over eight years and the fact that she has only returned once to Colombia in that period, is indicative that the applicant does not intend genuinely to stay in Australia temporarily.

15. The applicant is currently living with her sister and brother in law. Her sister is expecting her first child in March 2017. The Tribunal considers the applicant has a strong family connection in Australia and this is an incentive to remain in Australia.

16. The applicant has held six student visas in Australia and two visitor visas. She has studied multiple courses whilst the holder of a student visa and had ample and reasonable time to secure qualifications to enhance her career prospects and job opportunities in Colombia. Yet the applicant has applied for a seventh student visa to remain in Australia to study. The Tribunal considers the applicant’s immigration history is indicative that the applicant does not intend genuinely to stay in Australia temporarily.

17. The Tribunal had regard to the applicant’s range of courses and her reasons for pursuing different courses and the Tribunal is not satisfied that the applicant has provided cogent reasons for undertaking the range of courses she has chosen. The Tribunal formed the view that the applicant has used the student visa program to remain resident in Australia and to assist in gaining future employment in Australia. The applicant stated that initially she came to Australia to study English to enhance her career prospects. However, on completion of the English language course the applicant completed a Graduate Certificate in Management. Thereafter the applicant remained in Australia as a visitor in Australia in 2011 whilst holding two visitor visas.   Later in 2011 the applicant undertook another English language course. The applicant told the Tribunal repeatedly that she pursued the next course (a Masters qualification) so she could get a good job in Colombia - she stated that she needed to have good English language skills and a Masters qualification (and that her cousin had given this advice). So the applicant then studied a Masters in Management. Yet after completing the Masters course in 2013, the applicant did not return to Colombia with her Masters qualifications and multiple English language certificates, rather she remained in Australia with a view to pursuing IT studies. The Tribunal appreciates that IT skills are complementary to other skills in the work place; however the Tribunal is not satisfied that the applicant enrolled in an IT course with a view to enhancing her career prospects or skills. The applicant stated that she had no intentions of working in the IT industry and she had previously worked in large companies in Colombia using IT programs. Further, the applicant did not complete any studies in IT but ultimately pursued fitness related studies. The Tribunal considers that the applicant’s conduct in enrolling in the IT course was indicative of the applicant seeking to remain resident in Australia rather than for any career related purpose. The Tribunal appreciates that the applicant may not have pursued the IT course at the institution due to the quality of the education provider; however she did not then pursue IT studies at another institution but chose a course related to her Australian employment. After leaving the IT course, the applicant subsequently enrolled in the fitness related courses. This series of courses is related to the applicant’s work as a zumba instructor and dance teacher. The Tribunal considers these courses would enhance her career opportunities in Australia in the fitness industry. The Tribunal does not accept on the evidence available that the applicant undertook these courses with a view to returning to Colombia, to work in a sports club founded by her and her father.

18. The Tribunal took into consideration that the applicant has been working as a zumba instructor in the fitness industry in Australia since 2012. She has worked and is working in a number of sports facilities in the occupation in Australia. The Tribunal also notes that she gave evidence that she earned approximately $800 per week, $600 from this occupation as a dance instructor (at $60 per hour) although later retracted this evidence and said it was a lower income. The Tribunal considers that the applicant has generated and is able to generate a significant income in Australia in the fitness industry and this is a reason to undertake sports related studies in Australia and to remain in Australia. Further a sports management course would assist her to progress in the fitness industry in Australia.  In such circumstances, after regarding her history of residence in Australia and her employment in Australia, the Tribunal is not persuaded that the applicant intends genuinely to stay in Australia temporarily.

19. The Tribunal did not accept the explanation that the applicant is undertaking fitness related studies with a view returning to Colombia to operate a sports club for children in Colombia. The applicant has limited management experience, and the Tribunal has significant concerns about the funding that would be available to establish and operate a sports facility.

20. The applicant states that her father and cousin, along with sponsors will financially support the club. There is no evidence before the Tribunal of any financial commitment from any sponsors or from the applicant’s cousin directly (who lives in Amsterdam) as to the level of financial support (if any) that they would provide.

21. The applicant provided a letter from her father stating that the city hall of Santiago de Cali would also support the “noble cause” financially. The applicant made no mention of this during the hearing and there is no evidence from City Hall regarding the extent of any financial support (if any).

22. The Tribunal is mindful that the club is for the children who are from the vulnerable and poor sectors that due to economic circumstances cannot belong to any club; consequently it is apparent that the members of the sports club are unlikely to fund the ongoing operation of any sports club. 

23. The applicant’s father has provided a letter to the Tribunal. The letter does not indicate that the applicant’s father has the funds (other than a pension) to support the establishment and operation of the club and the Tribunal is mindful of the applicant’s evidence that her father is reliant on a pension and he took no work after ceasing work at Gillette so as not to adversely impact his pension payable at the age of 61 years. The Tribunal has significant concerns that the applicant’s father has significant financial resources available for a sports club. The Tribunal notes that financial documentation was provided to the Department regarding the financial circumstances of the applicant’s father. This documentation indicates the applicant’s father is in receipt of an age pension (COP $3,091,069 per month) and he has savings of COP$21,322,572 and as at 10 March 2015 he had a pre-approved personal loan of COP $70,200,000 over 92 months with instalments of COP $1,408,203 to support the applicant whilst she is a student in Australia.  The Tribunal is not satisfied on the evidence available that the applicant’s father has significant financial resources to assist in the establishment and operation of a sports club in Colombia and to support the applicant.  Further, the Tribunal placed limited weight on this letter given that he is the applicant’s father and not an independent employer or person seeking to employ the applicant.

24. The Tribunal considered that the applicant’s ability to generate a significant income in Australia in the fitness industry is a strong incentive to remain in Australia. The Tribunal was not persuaded on the evidence available that the applicant intends genuinely to return to Colombia to work in a yet to be established sports club for poor and vulnerable children, where there is no substantive evidence of the funding for such a club and where the other person working in the club is her father who is reliant on a pension.

25. In relation to the submission that if the visa is granted conditions 8503 and 8534 could be imposed to restrict any further visa application, the Tribunal is not satisfied that such conditions would preclude any further visa applications. Condition 8534 states that a visa holder may not be entitled to granted a substantive visa other than a protection, or certain student and skilled visas whilst they remain in Australia. Condition 8503 only applies after entry in Australia (and the applicant is already in Australia), and precludes a person being entitled to be granted a substantive visa, other than a protection visa, whilst the visa holder is in Australia. Condition 8503 and condition 8534 do not preclude a person applying for a visa whilst offshore and also in certain circumstances a person can apply for the waiver of conditions attached to a visa.  In any event, the central issue is whether the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily – not whether she intends to apply for a visa.

26. 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).

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.

    Miriam Holmes
    Senior Member