1509089 (Migration)

[2015] AATA 3353

1509089 (Migration) [2015] AATA 3353 (27 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PULKIT ANAND

CASE NUMBER:  1509089

DIBP REFERENCE(S):  BCC2015/513200

MEMBER:Mary-Ann Cooper

DATE:27 August 2015

PLACE OF DECISION:  Melbourne

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 27 August 2015 at 10:27am

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 13 February 2015. The delegate decided to refuse to grant the visa on 18 June 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 she was not satisfied that he genuinely intends a temporary stay in Australia.

4. The applicant appeared before the Tribunal on 17 August 2015 to give evidence and present arguments. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. 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)     …

8. 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.

9. 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.

10. As recorded in the delegate’s decision, a copy of which was supplied with the review application, the applicant applied to come to Australia to complete a Master of Accounting degree which he did not commence. In response to the Department’s invitation to comment, he claimed that he had not had sufficiently proficient English to entitle him to enrol in his Master’s degree. He claimed that he had a passion for cars, and he had decided to enrol in a Certificate IV and Diploma of Automotive Technology. The delegate noted that he had not applied for this visa until shortly before the expiry of his subclass 573 visa and had provided no sufficiently compelling reasons for such a significant course change. The delegate considered, on the basis that there was no evidence before her demonstrating that the subjects/course in which he was enrolled improved his future employment or remuneration in his home country, that he had chosen this pathway in order to take advantage of the streamlined pathway available to subclass 573 applicants and as a means of facilitating and maintaining presence in Australia. Consequently the delegate was not satisfied that he was a genuine applicant for entry and stay as a student or that he intended to stay in Australia temporarily and the visa was refused.

11. At the hearing the applicant told the Tribunal he worked as an assistant marketing manager and had come to Australia on 27 April 2013, after completing a Bachelor of Business Administration in India, for the purpose of undertaking a Master of Accounting. He confirmed that he had not commenced that course because he did not have sufficient English language skills, achieving a score of 6 in his IELTS test when his degree required a score of 7. He provided a document from the Victoria University dated 4 July 2013 confirming that he had insufficient English language skills to proceed with that course. The Tribunal asked him why there was such a long gap between his undertaking the lower level courses and making this application. He frankly responded that he was completely unaware of the need to change visa streams. He said he had almost immediately enrolled in another course and started studying. He explained that he had enrolled in his Certificate III in Automotive Mechanical Technology  at  Austwide Institute of Training in August 2013 and had been about to commence his Certificate IV however, he said without his knowledge, the college had enrolled him in a Certificate IV in Accounting from 3/10/14 to 2/10/15. He claims to have attended his automotive classes but then became aware that the college did not have registration for his automotive study so he had to change to Acumen Institute of Further Education to complete his Certificate IV. An examination of PRISMS records relating to the applicant indicates that he has been actively enrolled in a Certificate III, Certificate IV and a Diploma courses in the automotive field since at least August 2013.

12. The Tribunal asked him what had motivated him to commence study in automotive technology. He responded that he had been working as a cleaner at a car repair company and that had enlivened his interest in working with cars. As confirmed by a reference letter on the Department’s file, he has been working as a part-time motor mechanic since 18 August 2014. He said he has a relative in India who owns a garage and he would initially work with him before setting up his own garage, with his parent’s assistance. The Tribunal noted his written response to the Department in which he stated that automotive technicians are not recognised in India but can earn a good living in Australia, and observed that this suggested the course he was studying was of little or no value to him in India and that he intended to remain in Australia to work. He acknowledged that if he has to work for someone else in India he would be paid ‘peanuts’ but said this not the case if he opens his own garage. He reiterated that his parents had agreed to help him. The Tribunal asked him what he proposed to do at the completion of his current course, a Diploma of Automotive Technology, and he said that intended to return to India. The Tribunal observed that he already had a job in Australia and he responded that the senior technician at that workplace was very good and there would be no fulltime vacancy for him. He said all his family remained in India and these ties meant he would return at the completion of his Diploma.

13. The Tribunal noted that his current courses were a significant regression from a Master of Accounting and queried whether he may be using the student visa program to circumvent the intentions of the migration program and to maintain ongoing residence in Australia. He acknowledged that it was ‘not good’ for someone to go from a Master’s degree to a trade qualification however he said he had worked very hard and was committed to returning to India to open his own garage. He noted that had only 6 months to complete his Advanced Diploma and strongly requested the Tribunal to grant his visa so he could do so.

14. Overall the Tribunal found the applicant’s evidence to be a frank and spontaneous and accepts that he initially held a strong commitment to completing the Master of Accounting. On the basis of his evidence, and the document referred to above, it also accepts that he was unable to commence it because he did not have the required English language proficiency. The applicant provided further documents to the Tribunal showing plans for the automotive business and a contract for sale of land for the workshop. In this context the Tribunal accepts the applicant’s evidence regarding his changed career plan and that the course and level of qualification he is currently proposing is consistent with and relevant to his career plan to open and manage his own garage in India.

15. The Tribunal has considered the applicant’s history as a student over approximately 2 years in Australia. As noted above, he has made a notably significant change in career path, from an accounting degree to relatively short and relatively inexpensive trade courses. Given this, his history has some of the characteristics which identify him as a person that would fit the concerns expressed in the Minister’s Direction and the requirement of cl.573.223(1)(a). On this basis the Tribunal retains some reservations as to the genuineness of his claims. He has indicated to the Tribunal that he only wishes to complete the Diploma of Automotive Technology course and then return to his home country. From the confirmation of enrolment provided by the applicant, that course is scheduled to finish on 17 February 2016. To date the applicant has demonstrated satisfactory progress. In the circumstances of this particular case it appears to the Tribunal, given the expenditure and effort already undertaken in this course, it is reasonable and preferable to consider the applicant to be a genuine applicant for the purposes of cl.572.223(1)(a) in respect of his current enrolment only. Should the applicant propose to study beyond the current course, it would be open to the Department to require a further student visa application.

16. On the basis of the above, in particular to the additional evidence which was not before the delegate, 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.

17. Accordingly, the applicant meets cl.573.223(1)(a).

    CONCLUSION

18. 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

19. 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.

    Mary-Ann Cooper
    Member