1510520 (Migration)

[2016] AATA 4884

1510520 (Migration) [2016] AATA 4884 (16 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kazimierz Franciszek Bobruk

CASE NUMBER:  1510520

DIBP REFERENCE(S):  BCC2015/1376646

MEMBER:Alison Mercer

DATE:16 June 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 16 June 2016 at 11:40am

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training Sector) – Non genuine temporary entrant – Been studying and working for 8 years – Poor academic performance – Wishing to improve his English skills – Utilising the student visa program to remain in Australia indefinitely – Federal Circuit Court remittal

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 1 Item 1222 Schedule 2 cls 570.223, 572.223

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. Where used in this decision:

   ·COE refers to Certificate of Enrolment in a course of study;

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

   ·VET refers to Vocational Education and Training;

   ·A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

   ·The Department refers to the Department of Immigration and Border Protection;

   ·Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   ·IELTS refers to the International English Language Testing System.

3. The applicant applied to the Department of Immigration for the visa on 13 May 2015. The delegate decided to refuse to grant the visa on 14 July 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).

4. 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 genuinely intended to stay in Australia temporarily as a student, having regard to his circumstances, immigration history and other relevant matters (such as those set out in Direction 53).

5. In particular, the delegate noted that the applicant had originally come to Australia as a visitor in May 2007, was granted a further 3 month visitor visa and then applied for and was granted a subclass 457 (Temporary Skilled Work) visa in November 2011.  After this, the applicant applied for and was granted 2 student visas before applying for the present student visa.  The Department’s records indicated that the applicant had therefore been in Australia for approximately 8 years and had spent only 114 days outside Australia in that period. The delegate further noted that the applicant was enrolled in a Certificate II, III and IV in English as an Additional Language (EAL) (Further Study) and a Diploma of Business but his PRISMS record indicated that he had previously been enrolled in 5 previous English courses and a Certificate III of Business, but had completed only some of the English courses. The delegate found that the package of courses the applicant was now proposing to undertake would mean he would have undertaken approximately 4 years of study at ELICOS level without progressing further, and after having spent some years in Australia as a visitor and as a subclass 457 visa holder.  The delegate noted that the applicant had provided a statement to the effect that his study intentions were genuine but failed to provide evidence of completion of any courses in Australia.  The delegate considered that this showed poor academic progress and further noted that the applicant referred to wanting to study business to start his own business on his return to Poland, where there were poor economic prospects otherwise, especially for someone of his age of 62.  The delegate accepted that a person of any age may choose to change their career direction or undertake study to improve or enhance their skills.  However, all overseas students were expected to make academic progress and to remain in Australia only temporarily.  The delegate noted the applicant’s evidence that his brother lived in Australia and that the economic conditions in Poland were poor, and concluded that he had an incentive to remain in Australia, despite having other family ties in Poland.  The delegate found that, given the applicant’s lack of academic progress, his potential circumstances in Australia, his immigration history and the lack of value of the courses to his future, the applicant was using the student visa program to circumvent permanent migration programs and was not satisfied that he was a genuine applicant for entry and stay as a student.

6. The Tribunal received a review application from the applicant on 4 August 2015.  It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Hannah Malewska, as his representative and authorised recipient for correspondence for the purposes of the review.

7. The applicant appeared before the Tribunal on 24 February 2016 to give evidence and present arguments. The Tribunal also received legal submissions from the applicant’s agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Polish and English languages.

8. The applicant’s agent provided various supporting documents to the Tribunal at the hearing, including:

   ·written statement dated 24 February 2016 by the applicant.  He states that he is a genuine student and only wanted to study English for another year in Australia.  He believed he had made some progress in his English studies so far, and had always had a good attendance record, but he noted that it was harder for him to learn as a mature adult. Studying for another year would really help him improve. He intended to establish his own business on his return to Poland and to employ his son within the business, as his son had a disability which made it difficult for him to work for anyone else.  The applicant wanted to be able to work with international companies in Poland to do commercial painting, and having English skills would assist him to be competitive in this field.  He stated that there is a lot of foreign investment in Poland at present in the construction industry, which mean more painting work would be available.  With Australian work experience and English skills, he would be more competitive and this was especially important now that he was over 60;

   ·CoEs for Certificate I in EAL (Access) (11 April 2016 to 8 October 2016) and Certificate II in EAL (Access) (24 October 2016 to 24 April 2017) both at Australian Education Academy Pty Ltd.  The total fees listed are $8,640, of which $800 had been prepaid by the applicant; and

   ·information on foreign investment in Poland and the current state of the building and construction industry there.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is subclass 570 (Independent ELICOS Sector).  The Tribunal notes that at the time of the delegate’s decision, the subclass considered was subclass 572 (Vocational Education and Training Sector) as the applicant was at the time of this visa application enrolled in a package of courses including English courses and a Diploma of Business.  However, at the time of the Tribunal hearing, it appeared that the applicant was now only enrolled in the English courses.

11. 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)     …

12. 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.

13. 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.

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

14. The Tribunal has considered the applicant’s situation in relation to his home country, Poland. At the hearing, the applicant told the Tribunal that before coming to Australia, he worked for 30 years in the construction industry in Poland as a foreman in Biala Podlaska.  He is married and his wife is a nurse.  The applicant’s wife and 2 adult children remain in Poland.  The applicant said that he has 2 sons.  One is a geologist and is employed in this capacity in Poland.  His other son has a hearing disability and has not been able to work due to this.  He lives in the family home with his mother, the applicant’s wife.  The family home is an apartment allocated to them by the government.

15. The applicant said that he has a brother and sister in Poland and a brother in Australia, from whom he is now estranged.  Their parents are dead.  The applicant said that he originally came just to visit Australia in 2007 and really liked the country.  He was subsequently sponsored as an employee by his brother in his brother’s painting business, which is the basis on which he was granted the subclass 457 visa.  The applicant said that he had hoped to ultimately apply for permanent residence on this basis, or for another subclass 457 visa, but the Regulations were changed to require a much higher level of English than he had.  He therefore decided to study English to improve his skills.  In response to the Tribunal’s query, the applicant said that his brother in Australia was now retired.  They had a falling out over money his brother owes him and have not spoken for approximately 3 years.

16. The applicant said that he had hoped that his wife and son would join him in Australia while he held the subclass 457 visa but his wife could not get leave from her job as a nurse.  His son (the one with the hearing disability) did come to visit Australia but did not like it here and went back to Poland.

17. The applicant confirmed the contents of his written statement of 24 February 2016, to the effect that he wanted to go back to Poland and work with his son in a painting business and to target foreign companies building in Poland, for which his Australian work experience and English skills would give him an advantage. He maintained that he simply wanted to another 2 English courses to get him to a good level of English to be able to do this.  The Tribunal queried with the applicant the fact that he already appeared to have completed a number of English courses since late 2011, when his subclass 457 visa ceased and he changed to a student visa, and asked why he was now not able to return to Poland to implement his plans.  The applicant stated that he was not yet good enough but was confident he would improve after the Certificates I and II in EAL.  When asked why he was confident about this, given he had not attained a high level of English proficiency to date despite multiple courses at a similar level to the proposed Certificates I and II, the applicant said that the education provider he was currently enrolled with was better than previous ones.  He felt he would be able to progress better.  The applicant’s agent submitted that, from her knowledge, the applicant’s spoken English had improved since 2011 but he still struggled with written English. She noted that he had not completed some of the courses listed in PRISMS because he had not been able to attain the required level of English.  The applicant said that he required a good level of English if he was going to approach overseas companies in Poland for painting work.

18. The Tribunal raised its concern that the applicant’s current English courses appeared to be around the same, beginner’s level as his previous studies in Australia.  The Tribunal received somewhat conflicting evidence from the applicant and his agent.  The applicant stated that the Certificates I and II in EAL were more advanced than his previous courses. He also noted that he had not completed a lot of the courses listed in PRISMS as he would enrol but then would be unable to meet the standard of English required.  His agent submitted that, to her knowledge, EAL courses were about the same level of the English as a Second Language (ESL) courses previously completed and/or attempted by the applicant but that he was hoping to get to a higher level.  When queried why he would expect this, if he was essentially proposing to repeat courses at the same level, the applicant’s agent said that he learnt more each time he did a course, regardless of the level.

19. In response to the Tribunal’s query, the applicant said that he had been back to Poland 5 times since 2007, to see his family.

20. The Tribunal acknowledges that the applicant’s wife and 2 adults sons, plus 2 of his 3 siblings, are in Poland.  It also notes his evidence that his remaining brother, while an Australian permanent resident, has been estranged from the applicant for the last 3 or so years.  While the Tribunal considers that the fact that the majority of the applicant’s family remains in Poland provides a significant tie for the applicant to her home country, the Tribunal gives weight to the fact that the applicant had, to the time of the Tribunal hearing in February 2016, returned there to see his family for 5 short visits since coming to Australia in 2007 (although the Tribunal acknowledges that the applicant’s son visited him here sometime after 2011 for a period).  In the Tribunal’s view, this pattern of travel undermines the applicant’s assertion that this was a strong reason for him to return to Poland at the conclusion of his study in Australia.

21. At the hearing, the Tribunal discussed with the applicant the concerns raised by the delegate that the relatively poor economic situation in Poland has provided, and would continue to provide, an incentive for the applicant to attempt to maintain residence in Australia for an extended period.

22. While the applicant asserted that the economic conditions in Poland were good, and that he intended to target the expanding construction sector to set up a painting business on his return, the Tribunal retains concerns about his reasons for remaining in Australia as long as he has.  It considers that the fact that he has been consistently employed in either part-time or full-time work since coming to Australia, yet has made very little academic progress in his stated study aims, strongly suggests that the applicant is utilising the student visa program to remain in Australia indefinitely, in contravention of the purpose of the student visa program.

23. Moreover, the Tribunal has significant concerns about the value of the proposed course(s) to the applicant’s future. The applicant maintained that, despite having a basic level of English proficiency, and 30 years of employment experience in the building industry in Poland, it would enhance his career prospects if he completed further English courses in Australia.However, the Tribunal considers that he was unable to articulate a plausible reason why he could not now return to Poland with the skills and experience he currently has and either find work similar to his previous job or establish his own painting business. The Tribunal notes the applicant’s claim that if he had better English skills, he would have more chance of working in Poland with or for international companies undertaking projects there, but gives this claim little weight, given that he already has basic English skills from his previous courses and work experience in Australia. While the applicant’s agent argued that the applicant wanted to improve his written English further, the Tribunal does not accept that he would be unable to do so in Poland if he so wished.  The Tribunal notes the applicant’s evidence that the nearest English school was approximately 200kms away from his home in Poland but is unable to see why he could not travel to do a short course, or why he could not improve his written English through a correspondence course.

24. The Tribunal further notes the applicant’s agent’s evidence that employment was harder to secure in Poland for people over 60 and therefore having good English would make him more competitive. While it may be the case that people over 60 have more difficulty finding work in Poland than others, the Tribunal considers that this potential age-related difficulty provides a further incentive for the applicant not to return there.

25. Having considered the applicant’s evidence on this issue, the Tribunal is not satisfied that the courses that the applicant proposes to undertake would be of any realistic benefit to him in Poland, nor that there are not more appropriate avenues to pursue learning English than by remaining in Australia for a further period, a period which would take his overall time in Australia to nearly 10 years.  This conclusion strengthens the Tribunal’s view that the applicant is utilising the student visa program to remain in Australia indefinitely, in contravention of the purpose of the student visa program.

    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;

1. There is no evidence before the Tribunal that the applicant made any visa applications to other countries. 

2. In relation to his Australian immigration history, the Tribunal finds that the applicant arrived in Australia in May 2007, on a subclass 676 (Tourist) visa valid for 3 months, following which he applied for and was granted a further 3 month subclass 676 visa.  While holding this visa, he applied for and was granted a subclass 457 (Temporary Work – Skilled) visa on 23 November 2007 which was valid until 23 November 2011.  The Tribunal further finds that since then, he has been granted 2 student visas in the period December 2011 to May 2015, when he made the student visa application currently under review by the Tribunal.In that time, he has completed a number of English courses (although not all of the ones in which he was enrolled) and has worked full-time for approximately 4 years as a painter in his brother’s business and part time as a painter during the periods he held student visas.  The Tribunal notes that although he enrolled at a Diploma of Business, he did not refer to this at the hearing and there is no evidence before the Tribunal to suggest that he started or completed this course.  

3. At the time of the Tribunal’s hearing, the applicant conceded that he had not been enrolled for approximately 7 months in any course but indicated that he was willing to do re-enrol and had in fact done so. When asked why he had not pursued his stated aim of continuing to study English, he stated that he was uncertain how long the Tribunal review would take and did not want to risk losing money by enrolling in a course (or courses) that he would not be able to complete if his review application was unsuccessful.  The Tribunal notes that his agent conceded that they were aware of the information published by the Tribunal regarding the estimated time taken for a review application for a student visa but thought it might be shorter.  The Tribunal did not find the applicant’s evidence on this issue convincing and considers that his failure to study for a significant period undermines his claims that he genuinely wishes to undertake further English study in Australia.

4. The Tribunal finds that the applicant has now been in Australia for approximately 9 years without completing anything other than a number of English courses, although the Tribunal acknowledges that he was initially a tourist and then employed on a full-time basis for 4 years. Nevertheless, the Tribunal considers his academic performance and achievements from the date that he did apply for a student visa in November 2011 to be poor, and furthermore, to be suggestive of him not being a genuine applicant for temporary entry and stay as a student in Australia.  While the Tribunal acknowledges that the applicant may have faced greater challenges as a mature aged student in learning English, it is unable to accept that after approximately 4.5 years, the applicant has not improved sufficiently to undertake something other than a series of short English courses.  The Tribunal acknowledges that the applicant maintained that he did not select particularly inexpensive courses, but even allowing for him paying more expensive fees than some other courses charge, it considers this to be relatively inexpensive over a 4.5 year period, particularly considering the applicant has had steady employment before and during this time.  This situation leads the Tribunal to conclude that the applicant is utilising the student visa program to remain in Australia indefinitely, in contravention of the purpose of the student visa program.

   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

5. The Tribunal has considered the totality of the applicant’s circumstances and considers that his time in Australia has been characterised by a lack of academic progress, against a backdrop of ongoing employment.  There appears no plausible reason why the applicant could not now return to his home country of Poland and either complete further English-language study there or establish a painting business as he stated is his plan. The Tribunal considers that he already had a basic degree of English proficiency (albeit he was weaker in written English than in spoken English) plus Polish and Australian employment experience in painting and building and construction. It does not accept his explanation for his proposed further study in Australia as plausible or credible in relation to his future career prospects. 

6. Taking into account all the evidence before it, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay in Australia as a student, and concludes that he is using the student visa program to maintain ongoing residence in Australia.

7. 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).

8. 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.

   DECISION

9. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

   Alison Mercer
   Member