1510704 (Migration)

[2016] AATA 3447

1510704 (Migration) [2016] AATA 3447 (25 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ashmit ASHMIT

CASE NUMBER:  1510704

DIBP REFERENCE:  BCC2014/1750962

MEMBER:Lilly Mojsin

DATE:25 February 2016

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 25 February 2016 at 4:05pm

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 17 July 2014 in order to study a Diploma of Business.

3. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. The subclass that can be granted to an applicant who applies as a student 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), or whether the applicant has the support of the relevant Minister (Subclass 576).

4. On 11 September 2014 the application was refused, the delegate was not satisfied that the applicant met the financial requirements specified in Schedule 5A. 

5. On 13 April 2015, the then MRT 416312, differently constituted, determined that the applicant met the requirements of cl.5A408 for the purposes of cl.572.223(2)(a) and remitted the application to the Department.

6. On 28 April 2015 the applicant updated a Certificate of Enrolment [CoE].  The CoE indicated that the applicant intended to study a Diploma of Business which commenced on 11 May 2015 and ended on 11 October 2015, a Diploma of Project Management which commenced on 30 November 2015 and ended on 28 August 2016, and an Advanced Diploma of Business, which commenced on 17 October 2016 and ended on 23 April 2017.

7. The delegate again refused to grant the visa on 20 July 2015 because the applicant did not satisfy the requirements of cl. 572.223(1)(a) of Schedule 2 to the Regulations as the delegate was not satisfied that applicant was a genuine applicant for entry and stay as a student.

8. The applicant appealed that decision on 10 August 2015, attaching a copy of the Department decision.

9. The applicant appeared before the Tribunal on 23 October 2015, via video link to Brisbane, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. 

10. The applicant was represented in relation to the review by his registered migration agent, who attend the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

12. On 20 October 2015 the Tribunal received a submission from the applicant’s advisor that stated

    the applicant should be assessed against Assessment level 1 rather than Assessment Level 3 which forms important part of decision. The MRT has considered his GTE criteria in his previous hearing and was satisfied the applicant had a genuine intention to study in Australia. Attached were the following documents:

    • Advance English Certificate completed from TAFE Sydney
    • Certificate IV in Business Administration from Skills Institute of Australia (SIA). 
    • Course progress report for Diploma of Business started on 14/07/2014 showing the applicant had completed 4 modules out of 8. He is a genuine student and had maintained all courses in due time.
    • CoE from Skill College being evidence that the last date of study recorded is not 24/04/2014.
    • Reason for gap in his studies was cancellation of his student visa.
    • Last day of his studies in Skills Institute recorded was 09/10/2014. Due to his visa cancellation, his CoE were cancelled from the SIA.
    • He was refused study rights so he could not obtain a CoE from any college irrespective of his status. 
    • He obtained CoE from ACTB but cannot start his studies as he was refused study rights by the department even though MRT made decision in his favor so he had a gap of over 1 year in his studies.
    • He has successfully completed Cert IV in Business Administration from Skills Institute of Australia (SIA) which satisfies his English Language requirement required by DIBP. Additionally he has successfully completed ELICOS from Sydney TAFE.

13. A statement by the applicant, states as follows:

    I have arrived in Sydney on 3rd Feb 2014, and joined my college which is NSW Ultimo TAFE on 10^th Feb 2014. I have completed my 5 weeks Basic English language course at TAFE and received outstanding results and my teacher gave me good remarks (letter from TAFE is attached). I couldn’t find any accommodation in Sydney for two months and lived at local Sikh temple. Due to frustration of living at Sikh Temple, I have withdrawn from my studies and went to Brisbane. My relatives and friends were based in Brisbane, so I went and took admission in Skills Institute of Australia. Firstly I have finished my Cert IV in Business (Attach is my certificate). I love teaching style of Skills Institute and took COE in Diploma of Business and Project management subjects. I was in middle of completing my Diploma of Business course when my COE’s were cancelled due to Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa cancellation. I have maintained a good attendance and course progress was satisfactory at SIA.

    I have applied for MRT; they assessed me against GTE and Financial criteria, remitted my decision to DIBP. I have provided all the reasoning to prove that I am a genuine student and is financially capable to study in Australia.

    Recently, I have got Confirmation of Enrolment (COE) from Australian College of Technology and Business in following courses:

    • DIPLOMA OF BUSINESS
    • ADVANCE DIPLOMA OF BUSINESS
    • DIPLOMA OF PROJECT MANAGEMENT

    Previously, I was studying at SIA, where I have partially completed my Diploma of Business course. I have attached my statement of attainment for Diploma of Business course. I want to continue my course from where I have left behind. I have chosen to study Business because of growth factor in India. Modern technologies (Make in India Project) and the industrial revolution in small towns are playing important role in Indian economy and considering the demand for Business Manager to manage Industries. Since there is rapid growth in Indian economy, companies requires qualified business manager who can increase their revenue by skills and expertise learnt overseas because of lack of exposure at an international level. Applicant applied to study Advance Diploma level course which is on a high demand in India and where he could learn skills from ACTB to use them at professional level. When applicant started the course he was highly committed and mentally prepared to work hard to achieve this degree. I need to fortify my fundamentals of Business, by learning Diploma level course.

    I have matched subjects of SIA with ACTB Business program and discovered that course blueprint is same of SIA. ACTB is an eligible education provider and provide training in little units and with better seeing through assignments. ACTB has a good education standard and they assessed my level of understanding by assessing my GTE before enrolling me in Diploma of Business course. ACTB has a very good reputation among existing business schools of Brisbane and convey top notch instruction to their students. They have an extraordinary learning environment and trainer who create small batches in classes for their students. All the information of ACTB is gathered through attending an orientation
    program. There are very few education providers delivering information in the business stream. I have done a lot of research in selecting college as I was not working and studying anywhere due to my current visa condition and spent a lot of time in discussing with the past and current students of the college. I have personally visited the college twice and had a word with the some trainers and quite satisfied with style of information delivery.

    Climate and environment was an important factor in selecting Australia for a study destination and discovered that Brisbane got very much similar weather to Indian subcontinent. Also I have lived in Brisbane from past 1 year and got a good experience by living in Brisbane. Brisbane is not like Sydney where there is too much traffic and it’s hard to find accommodation. Transport in Brisbane is accessible at door step of my cousin’s home. State of Queensland has a differing multicultural society and invite student from different nationalities to live with different societies. Brisbane and Gold coast are very close to each other and I usually go on weekends to Gold Coast to enjoy sun and beaches. Employment opportunities are a lot in Queensland, as I am currently not doing job because of no work restriction. I would certainly get a job from my previous employer as a packing supervisor who really appreciates my work ethics. I have researched about job opportunities in India after finishing my education in Australia and found out that people with international exposure will have more job opportunities rather than some from local. Courses delivered in Australia are based on research but in India, there is lack of education system for Business qualification. I can’t improve my English as most of the people prefer to speak local language in school and colleges. I can learn strategies and gain lot of exposure from multicultural societies who will study with me ACTB College. I have made few friends from Italy and Bahrain.

    I am sharing my accommodation with my family friend at Browns Plains. My friend is helping me out to buy some groceries. Whereas my father is supporting me for accommodation, tuition fees, general pocket expenses, health insurance and other study related expenses. Once I get work rights, I will work 20 hours to afford my groceries and other small bills. I have recently provided all financial documents to tribunal who verified that I have financial capacity to sustain myself in Australia. I have always paid my fees in due time and always complied with my visa conditions. My father is sending me money since my case was in Tribunal.

    I am not working in Australia since September 2014, but before that I was working in one warehouse in Acacia Ridge as a packer. I have partially completed my Diploma of Business but have completed CERT IV in Business which is related to my studies at ACTB. I have completed 50% units in my previous college and wanted to pursue same qualification. Once I complete my all three Diploma at ACTB, I will be able to gain more knowledge and polish myself for a senior and long term job position in management side. I can apply business techniques and train local farmers who can make profit with my abilities and information.

    As stated earlier, my previous academic was in same field as I have currently chosen to study. This is the reason; I want to avail qualification in field of business so that I can get a long term and promising job position. Growth factor in India looks promising as economy rate has boomed in previous years.  Share market and SENSEX are doubled up since 2008-2009. Make in India Project and the industrial revolution in India are playing important role in Indian economy. Since there is rapid growth in Indian economy, companies requires qualified business manager who can increase their revenue by skills and expertise learnt overseas because of lack of exposure at an international level. Companies need a manager who can speak good English so that they can Increase their trade with other western countries for excellence. Combining these qualifications with my past and future jobs, I am sure to make a bright future ahead. I am the only son of my parents and really love my parents who contributed a lot to my bright future. I can't live without my parents, I need them to develop and use my abilities which I’ll learn from ACTB.

14. At the Tribunal hearing the applicant stated that he arrived in Australia on 2 February 2014.  He was enrolled in Elicos and then web based technologies. He was enrolled in NSW in TAFE college for Elicos, in 1 or 2 months and then had personal issues, where he was staying he was kicked out of accommodation. He had nowhere to stay and decided not to continue with his studies. He stayed at Sikh temple when he had stress issues. He had some relatives in Brisbane, they said do not go back and come to Brisbane. They got him admission to the Skills course. It was business management. In October 2014 his visa was cancelled. He applied for the 572 visa before his 573 visa was cancelled.

15. He finished a Certificate IV in Business Management from Skills College. He is presently enrolled in Australian College of Technology in Fortitude Valley to study a Diploma of Business and Diploma of Project Management commencing on 11 May 2015 and finishing on 28 August 2016. The applicant is single and he does not work in Australia. He has money sent to him from India. The applicant has not travelled to other countries.

16. The applicant seeks to remain in Australia to study because he knows there is a better education here and wants to return and set up a family business over there. When asked what the business was, he said it is a family business. It is like farming. His grandfather is a farmer but his father works for the government. The family has a farm growing crops for a profit, he wants to finish his study, return and open an import/export business.

17. When asked why he did not return and make an application for a visa in India after his visa was cancelled he said that he did not return as he applied for 572 before the 573 visa was cancelled.

18. His circumstances in India are good, he comes from a rich family in India, his father has a government job. The applicant never worked when he was in India, there is no political or civil unrest in India, all his family is in India. In Australia he does not have direct family only distant cousins. He is able to study the same course in India but it better education in Australia. There are no military service commitments in India.

19. In regard to his potential circumstances in Australia the applicant said that he does not want to migrate to Australia, he is not married. The applicant said that this trip to Australia is his first trip out of India, he has not travelled to any other place.  

20. After explaining Direction 53 requirements, the applicant said that after studying business and farming he wanted to start an import/export business for seeds and vegetables. When put that he would be able to study in India course to set up business for farming and import/export of seeds and vegetables the applicant said that he does not want to study in India “I just want to study here”. He likes the culture and studies here and wants to obtain a diploma of business from here. In India they use old methods and here new methods. When asked what these old methods were, he said the way of teaching here, teachers are co-operative and he would like to get an education here.

21. The applicant also stated that recently when his visa was cancelled he applied to MRT and he could show the funds. When he cleared the MRT there were still concerns about his genuineness. The MRT believed he was genuine and he just wanted another chance.

22. When asked if he has had any work experience in farming or managing a farm he said that he had, he knows how to run the farm of his grandfather and he helped on that, the whole family is behind him to look after the family business after his studies abroad.

23. The applicant’s advisor stated that he applied for his visa before his previous visa was cancelled in order to comply with visa conditions. The case officer assessed the applicant against level 3 but he should have been assessed against level 1. He does not have work and study rights at the moment. The advisor requested that the Tribunal listen to the previous MRT decision in order for the Tribunal to be satisfied that the applicant gave consistent evidence.

    REASONS AND FINDINGS

24. Having regard to the applicant’s current proposed course of study Diploma of Business, Diploma of Project Management and Advanced Diploma of Business the relevant subclass in this application is Subclass 572.

25. The issue in the present application is whether the applicant meets the time of decision criterion in cl.572.223.

26. 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)….; and

    (iv)any other relevant matter; and

    (b)     …

27. 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;

    …………………… 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.

28. 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.

29. The Tribunal accepts that the applicant is a single male from India who arrived in 2014, with a TU573 visa, in order to study a tertiary course.  The Tribunal accepts that he was not able to study that course and combined with subsequent personal problems resulting in being without accommodation in Sydney and moving to Brisbane, his visa was cancelled. But the applicant has completed a Cert IV in Business Administration from Skills Institute of Australia. He has also completed half his course for a Diploma of Business, successfully completing 4 modules out of 8. As a consequence of the Department deciding that the applicant did not meet the financial requirements specified in Schedule 5A, the applicant’s TU 572 visa was refused. He appealed that decision and on 13 April 2015 the Tribunal found that the applicant met the requirements of cl.5A408. The applicant was unable to commence his studies as shortly after the Tribunal decision was made, the delegate of the Department on 20 July 2015, again refused the TU 572 visa finding that the applicant did not meet cl.572.223(1)(a).

30. The Tribunal places weight on the

    ·The reasons for the large gap in the applicant’s studies. This occurred when his 573 student visa was cancelled and his bridging visa did not permit him to study from 15 October 2014, whilst he awaited the outcome of his MRT appeal.

    ·The applicant seeks to complete his studies in Australia, he perceives that study in Australia is a better education for his career path, an import/export business in India associated with his grandfather’s farm.

    ·The applicant is a single male who has no family in Australia, his family are in India. His father has a government job and his family support him in Australia whilst he has been unable to work or study. He has no military commitments in India and his whole family are in India.

    ·The applicant has completed a Cert IV in Business Administration

    ·The applicant’s successful completion of 4 out 8 modules in a Diploma of Business before having to cease study.  He has demonstrated that he has an application to his studies.

1. As the applicant has not had the chance to complete his Diploma of Business, whilst he waited for an MRT appeal that resulted in the Department decision being remitted, he should be given the benefit of the doubt and the chance to further his studies in Australia.

2. 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 meets cl.572.223(1)(a).

   DECISION

3. 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.

   Lilly Mojsin
   Member