1507393 (Migration)

[2015] AATA 3945

1507393 (Migration) [2015] AATA 3945 (20 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr DIWAL RAI

CASE NUMBER:  1507393

DIBP REFERENCE(S):  BCC2015/790396

MEMBER:Mara Moustafine

DATE:20 December 2015

PLACE OF DECISION:  Sydney

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 572 Vocational Education and Training Sector visa:

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

Statement made on 20 December 2015 at 11:24am

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

2. The applicant applied to the Department of Immigration for the visa on 11 March 2015. The delegate decided to refuse to grant the visa on 21 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 of Schedule 2 to the Regulations because she was not satisfied that the applicant genuinely intends a temporary stay in Australia having regard to his circumstances, immigration history, and other relevant matters.

4.     The applicant appeared before the Tribunal on 18 December 2015 to give evidence and present arguments. 

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.     The delegate's decision record, a copy of which the applicant provided to the Tribunal, indicates that he first arrived in Australia on 19 February 2007 on a TU subclass 572 Student visa granted offshore on 19 January 2007, which was valid until 5 April 2007. He subsequently held further Student visas or associated bridging visas.

10.      On 11 March 2015 the applicant applied for a TU subclass 572 Student visa to undertake a Diploma of Business and Advanced Diploma of Business.

11.      According to the Provider Registration and International Student Management System (PRISMS), the applicant had previously completed the following courses: Bachelor of Nursing; Advanced Diploma of Accounting; Certificate III in Hospitality; Diploma of Hospitality; and Advanced Diploma of Management.

12.      On 12 March 2015, the Department wrote to the applicant through his migration agent inviting him to comment on his circumstances in relation to the genuine temporary entrant (GTE) criterion, including why he chose to enrol in his intended courses; how this related to his previous studies; his study and career plans once he completed his study and how his study will benefit his future employment in his country.

13.      In his response of 12 March 2015, the applicant confirmed that he had completed a Bachelor of Nursing, Diploma of Accounting, and Certificate III in Hospitality, Diploma of Hospitality, and Advanced Diploma of Management courses. He had commenced employment as a kitchen hand in 2009 and was currently employed as a chef in a restaurant. He stated that he wanted to complete a Business Diploma to gain knowledge and to operate his own Hospitality Business.  

14.      In her decision of 21 May 2015 the delegate highlighted a number of concerns, including that:

a.The applicant was enrolled in a diverse range of courses since arriving in Australia in 2007 and that the lack of a clear career direction and detailed information about the relevance of the courses to his employment future indicated that he was using the Student visa programme to maintain ongoing residency in Australia.

b.The courses he was seeking to undertake were inconsistent with his educational background. While it was not uncommon for a person to seek a change in career/study pathway, since he came to Australia in 2007 he had been enrolled in various courses, completed a Bachelor of Nursing Degree course and had not explained why he changed his career path to study an Accounting course, then Hospitality and Management courses and was currently enrolled to study an Advanced Diploma of Business.

c.In his statement the applicant stated that he worked as a kitchen hand since 17/06/2009. Departmental records indicated that he was granted a visa to study a Diploma of Accounting course from 23/09/2009 to 16/11/2011 and when this visa was about expire he applied for another visa to study a Diploma of Hospitality, which was granted on 02/12/2011 to 26/08/2013. He had not explained why he enrolled to study an Accounting course instead of a Hospitality course, when he was working as a kitchen hand in the restaurant. When this visa was due to expire, he applied again for a visa to study a Diploma of Management and then applied to study for a Diploma and Advanced Diploma of Business. This suggested a pattern of studying cheap vocational level courses to prolong his stay in Australia.

d.His movement records indicated that he had never departed Australia in the 8 years he spent in Australia, which suggested that he did not have strong personal ties to Nepal and that his incentive to return to Nepal was minimal.

15.      The delegate concluded that overall, given his lack of academic progress, his study and immigration history, his potential circumstances in Australia, and the lack of value of the courses to his future, the applicant was using the Student visa program to circumvent permanent migration programs. She was not satisfied that he was a genuine applicant for entry and stay as a student and that he intended to stay in Australia temporarily.

16.      At hearing the applicant told the Tribunal that he had completed his Diploma of Business and was currently studying for his Advanced Diploma of Business, which he was due to finish in March 2016.  He explained that the reason he had changed the direction of his studies after completing his Bachelor of Nursing was that he had been forced to study this course by his parents but had no interest in it.

17.      While studying for an Advanced Diploma of Accounting, the applicant worked in a restaurant and developed an interest in the hospitality business so after finishing his course, he studied Hospitality. The applicant said he subsequently undertook courses in Management and Business as he wanted to understand all aspects of running a business.  He said that when he finished his course in March 2016 he wanted to open a café in Nepal.

18.      At hearing, the applicant submitted a current COE; a letter from his church attesting to his good character; and a Certificate of Service from his employer at the Moody Chef restaurant, which stated that, after being hired as a Kitchen hand in June 2009, he was promoted to Cook in June 2011, then Chef in December 2013 and that he had worked 3-4 shifts a week to comply with the 20 hour limit of his Student visa.  

19.      The Tribunal discussed with the applicant the two limbs of the GTE criterion – that a genuine student not only had to study and advance academically, but also have a genuine intention to stay in Australia temporarily. The Tribunal noted the delegate’s concerns at paragraph 14.d above that he had never departed Australia since arriving in 2007, which suggested that he did not have strong personal ties to Nepal and that his incentive to return to Nepal was minimal.

20.      Asked how he knew that opening a café in Kathmandu would be a viable business, when he had not been to Nepal in 8 years and whether he had undertaken any research about such a business, the applicant said he had only done so in general terms and intended to explore opportunities on his return to Nepal. He said that if business prospects were not good in Nepal, he would go to Dubai, where his brother was working as cook.

21.      The applicant said he was prepared to give an undertaking that he would depart Australia on completion of his Advanced Diploma of Business course in March 2016 and not seek another Student visa. He said he had studied enough and wanted to run a business. The Tribunal considers, that as the applicant has only three months to study to complete his course and has a good record of course completion in his previous studies, he should be given the benefit of the doubt regarding this undertaking.    

22.      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, the applicant does meet cl.572.223(1)(a).

23.      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

24.      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 572 Vocational Education and Training Sector visa:

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

Mara Moustafine
Member