1507614 (Migration)

[2016] AATA 4366

1507614 (Migration) [2016] AATA 4366 (1 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sin Yu Tsang

CASE NUMBER:  1507614

DIBP REFERENCE(S):  BCC2015/805401

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          1 September 2016 at 11:20 am (VIC time)

DATE OF WRITTEN RECORD:                7 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 07 September 2016 at 12:55pm

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 May 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).

2. At the hearing on 1 September 2016 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. To be eligible for the grant of a student visa, applicants must be both genuine temporary entrants and genuine students.

4. To be a genuine temporary entrant an applicant’s circumstances must support a genuine intention to remain in Australia temporarily

5. You applied for a student visa on 12 March 2015.

6. Your application was refused on 19 May 2015 because having considered your circumstances, the delegate found you were not a genuine temporary entrant but were using the student visa programme to maintain residence in Australia.

7. You appealed that decision to be reviewed by this Tribunal and with your application you provided a copy of the primary decision.

8. As was explained in the primary decision, and discussed here today, when considering if an applicant is a genuine temporary entrant, it is necessary to have regard to what is known as Ministerial Direction No. 53 and the issues in that direction. They were detailed in the primary decision and as mentioned earlier they include:

   ·Your circumstances

   ·The value of your course/s to your future

   ·Your Immigration history

   ·Your incentive to stay in Australia or return home

   ·If you are using the student visa programme to maintain ongoing residence in Australia

   ·Any other relevant matters

9. The role of the Tribunal is to take a fresh look at your application, consider your circumstances and the issues in Direction No.53 and be satisfied you are a genuine student who genuinely intends to stay in Australia temporarily.

10. You told the Tribunal you had not read or understood the primary decision completely and so we went through it and discussed the reasons the delegate made the decision and you now say you understand. I make the comment I find it unusual that people would ask for a decision to be reviewed not knowing what the decision to be reviewed was.

11. That decision with its references to the issues in Direction No 53 put your notice of the issues in your case and when we sent you the hearing invitation we advised you we would be considering and assessing whether you met the genuine temporary entrant requirements and asked you to provide a statement addressing the issues in Direction No 53 which again clearly put your notice about the issues we would consider.

12. In response your agent provided a brief submission which I presume was following discussions with you. It contains a number of incorrect and misleading statements which leads the Tribunal to give it very little weight. Those issues were discussed at the hearing and include things like the fact it states you only seek a visa for another 3 months despite your intended course being longer than this. It states you have completed more than 80% of your enrolled courses. I expect this was not a reference to all courses you have done, but was presumably in reference to the Schedule 5A requirements which refer to an applicant having completed at least 75% of the requirements of their principal course.  You certainly do not satisfy this requirement as you are yet to commence the Diploma of Hospitality which is your current principal course. Further, the statement that your prospect of working in the disability care sector was cut short due to a knee injury I find misleading given you were well aware of your knee condition when you chose to commence study in the disability field. The statement did not address the issues in Direction No 53.

13. At today’s hearing you responded to a range of questions that went to the issues in Direction No. 53.

14. Before coming to Australia you studied Bookkeeping and English for Business Purposes and a 12 month course in Business Administration. You had worked waitressing and bartending and had travelled extensively before coming to Australia, studying English in a range of countries including England, the USA and briefly albeit somewhat unsuccessfully in Malta but had done substantial studies before arriving in Australia.

15. You came to Australia on 22 October 2011 on a 417 Working Holiday visa because you wanted to travel and you enjoyed travel. You did a fair bit of travel around Australia in that first year and were granted a further 417 visa current until 22 October 2013. On 9 January 2014 were granted a 572 visa current until 15 March 2015.

16. Since arriving in Australia you have worked in a range of jobs and for the last 3 years you have been employed on a part-time basis at Kobe Jones and the Spice Market, respectively a restaurant and nightclub in Melbourne.

17. As the tribunal said to you on a couple of occasions, it has grave concerns about your credibility because of the conflicting answers you provided, the last example being where you say you only worked 3½ hours a week at Kobe Jones because when you got a job there you were already working at the Spice Market and you needed to be able to fit the Kobe Jones hours around your existing hours at the Spice Market. This conflicts with other evidence you provided in the form of letters from both employers which states you were employed by Kobe Jones months before you started work at the Spice Market.

18. You’ve studied a Certificate IV in Disability, and have now studied a Certificate III and are about to complete a Certificate IV in Commercial Cookery. You have provided evidence that you wish to go on and do a Diploma of Hospitality.

19. When looking at your history and background as a whole, the Tribunal finds these hospitality courses are not related to your previous studies and I question how they are related to your plans. It was put to you on a number of occasions and despite your claim it was a passion of yours to study hospitality, you in fact did not start studies in hospitality until April 2015 and it is a significant concern, as was mentioned in the primary decision, that you enrolled in those courses the day before you lodged your visa application. This gives the distinct impression that your purpose in seeking enrolment was to be granted a visa rather than a desire to undergo a course of study.

20. You say your ultimate goal is to work at management level in a hotel. When asked more about this, you say that when you go back you plan to get a job in the kitchen in a small restaurant and ask the lady who owns the small venue where you used to work whether she has any contacts where you could get a job as a chef in a major hotel. As I said to you I do not believe that being a chef is what you would define as being in management and is not normally considered a pathway into hotel or hospitality management.

21. Your answers, that I find conflicting, lead me to believe that you do not have a genuine considered business plan as the basis for your studies.

22. When asked about the timing of your applications, you said your agent told you that you needed a Certificate IV in Disability before you could enrol in a Certificate III in Hospitality. The tribunal does not believe this claim as it is not reasonable to accept that a Certificate IV in Disability could be a pre-requisite for studying a Certificate III in commercial cookery.

23. When asked why you do not do these studies at home you say you have done research and there are no specific cookery courses available in Hong Kong. You also say, surprising given your claim there are no cookery courses in Hong Kong, that in the cooking courses in Hong Kong, Cantonese is used as the instruction language which you say is obviously not professional. It is not obvious to me as I mentioned in the hearing and also as we did in the hearing, if a Google search is entered under “cookery courses Hong Kong”, it comes up with a range of cookery courses including courses run by Holmes Institute, the recognised and reputable Australian education provider that has campuses here and overseas. This leads me to find that you have not done research as this was particularly easy to find.

24. Having considered your circumstances as a whole, including the issues in Direction No 53, I am not satisfied you are a genuine student who intends to stay temporarily in Australia. Therefore I find you do not meet clause 572.223(1)(a).

    DECISION

25. The Tribunal affirms the decision under review.

    Tim Connellan
    Member