1509791 (Migration)

[2016] AATA 4084

1509791 (Migration) [2016] AATA 4084 (5 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Leszek Frak
Mrs Malgorzata Pospieszynska

CASE NUMBER:  1509791

DIBP REFERENCE(S):  BCC2015/1371328

MEMBER:Adrian Ho

DATE:5 July 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 05 July 2016 at 12:27pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants applied to the Department of Immigration for the visas on 12 May 2015. The delegate decided to refuse to grant the visas on 30 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.570.223(1)(a) of Schedule 2 to the Regulations.

4. The applicants appeared before the Tribunal on 30 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Polish languages.

5. The applicants were represented in relation to the review by their registered migration agent.

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

7. Where used in this decision:

   a.The applicant refers to the first-named applicant;

   b.COE refers to Certificate of Enrolment;

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

   d.VET refers to Vocational Education and Training;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   g.IELTS refers to the International English Language Testing System.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 570.

9. The issue in the present case is whether the applicant meets the time of decision criterion in cl.570.223. Clause 570.223(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)     …

10. 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.

11. 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.

12. At hearing, the applicant was:

    a.Given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;

    b.Informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;

    c.Informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.Given an overview of the considerations laid out in Direction No.53 as summarised above;

    e.Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the tribunal hearing;

    f.Informed that all subclasses of the Class TU visa have equivalent ‘genuineness’ criteria (other than Subclass 580), and that if the criterion was not met, it would not be met for each of those subclasses;

    g.Informed that the Subclass 580 visa is for student guardians; where it is a requirement that the person will accompany a relative to or in Australia who is a student, and that on the evidence, the applicant was not such a person; but that if it was felt that the applicant was such a person, this should be raised with the tribunal.

13. The tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Findings

14. The first-named applicant (the applicant) now applies for a student visa to study English.

15. He conceded at hearing the following points:

    a.He arrived in 2008 and has only been offshore for 6 days on short trips to Bali and Singapore and has not returned to Europe since arriving in 2008;

    b.He had been the dependent visa holder to his wife on seven student visas while she studied cookery, hospitality and business;

    c.Their stated career goal is to open a café in Poland or elsewhere;

    d.He originally arrived as the primary holder of a 570 visa and studied a short course in English;

    e.He now applies for a 570 visa to study an IELTS preparation course of around 3 months, which is in a series of IELTS preparation courses that he started in August 2015.

16. The applicant claims that despite living in Australia since 2008 his English is poor, and he needs better English in order to help his wife service the customers of the café they have planned.

17. The applicant claims that in his more than 7 years living in Australia, he never knew that he could study as a dependent student visa holder, or else he would have.

18. As suggested at hearing, the tribunal finds this proposition difficult to accept.  As suggested, during the long course of his stay, a simple email or phone call to the Department would have clarified whether and for how long he could study as a secondary visa holder.  If the applicant had wanted to study, and had been curious as to his visa conditions, he would have discovered that he had some study rights and would have taken the opportunity to improve his English, which he claims did not develop during the years he lived in Australia.

19. As suggested to him, the tribunal considers that the applicant has had sufficient opportunity to study English courses as a dependent student visa holder in Australia.

20. As suggested at hearing, the tribunal finds it troubling that the applicant resided in Australia as a secondary visa holder to his wife for many years and only now proposes study when he is the primary student visa applicant and when his, and his wife’s, further stay in Australia is dependent on him studying. 

21. As suggested, there is a strong suggestion in the timing of his application that the couple seeks further stay in Australia and as his wife has already studied a full complement of cookery, hospitality and business, the couple now present the applicant as the student wishing to improve his future prospects where he had not taken any action to do so while visas were granted to him without him having to study. 

22. In all the years since he was granted visas based on his wife’s study, he did not study.  For reasons above, the tribunal finds that if he did not know he could study, it was because he did not make simple enquiries, which is because he had no interest in studying.  On his own evidence, he was working as a tiler for most of this time, as he still does today.

23. While he has parents and siblings in Poland and Europe, he has never made a trip back to Europe since coming to Australia in 2008 and has not seen any of his family members.  As suggested, the tribunal considers that he is comfortable managing family and friends who are outside Australia from within Australia and they serve as no particular incentive for him to leave Australia.

24. The applicant and his wife insist that they plan to return to Poland as soon as the last of the IELTS preparation courses is completed in June 2016.  They agreed that this last 3 month course was the only thing preventing them from returning now.

25. The applicant claims they wished to save money here in order to open their café, but had in these years only managed to save a few thousand dollars.  As suggested to them, it would appear that they will not have saved enough money to embark on the café business as claimed.

26. The applicant claims that IELTS preparation courses in Australia are better than those in Poland.  Even if this is so, the tribunal considers as suggested that such courses are available in Poland and studying in Australia is only of marginal extra benefit.

27. On his evidence he wishes to improve his English so as to serve English-speaking customers of the café that is planned.  The tribunal considers that his study of English in 2008-2009, the general English he studied in 2015, and the two IELTS preparation courses he has already completed in 2015-2016 are sufficient for this purpose.

28. A third IELTS preparation course would not add appreciable value to his goal of interacting with café customers.

29. The applicant now applies for the same 570 visa that he was granted in 2008, and again to study English, more than 7 years later.  In essence, he seeks the visa to resume the English study he started in 2008.

30. On the evidence, his interest in studying English lay dormant while he was granted dependent student visas and has awaken at a time when his further stay in Australia depends on him studying. 

31. As suggested, there is a distinct suggestion that the value of the study proposed is less in the English acumen to be acquired from the course than in the further stay which lies in the grant of an eighth student visa.

32. The applicant’s personal statement does not appreciably add to the discussion that took place at hearing (DIBP f.54) nor does his satisfactory course progress (f.92).

33. Such are the considerations presented in the applicant’s evidence.  His circumstances, in relation to residual factors in Direction 53, are unremarkable.

34. 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.570.223(1)(a).

35. The Tribunal has found the applicant does not meet an essential requirement of cl.570.223. 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.

36. The secondary visa applicant does not propose any study and on the evidence has no relevant course enrolment and would not meet the primary criteria for any subclass.  She also fails against relevant secondary criteria.

    DECISION

37. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Adrian Ho
    Member