1510923 (Migration)

[2016] AATA 4824

1510923 (Migration) [2016] AATA 4824 (22 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr RAJESH KUMAR
Mrs KUSUM LATA

CASE NUMBER:  1510923

DIBP REFERENCE(S):  BCC2015/1447336

MEMBER:Adrian Ho

DATE:22 December 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 22 December 2016 at 3:51pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – cl 572.223(1)(a) – Plans to utilise skills and knowledge gained in pursuits outside Australia – Lack of clear and convincing career direction – VET studies unrelated to earlier courses – Focus on employment over studies

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulation 1994, Schedules 1 and 2 cl 572.223(1)(a)

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 19 May 2015. The delegate decided to refuse to grant the visas on 22 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).

3. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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.

5. The applicant (Mr Kumar) appeared before the Tribunal on 26 October 2016 to give evidence and present arguments.

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

7. Where used in this decision:

   a.COE refers to Certificate of Enrolment;

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

   c.VET refers to Vocational Education and Training;

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

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Subclass 580

8. At hearing, the applicant was 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 in order to make a valid application for a Subclass 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1) and on the evidence it was not and therefore it appeared the application was not a valid application for a Subclass 580 visa.

9. The applicant confirmed that Form 157G was not used and a Subclass 580 visa was not sought, and was informed that the application appeared not to be a valid application for that subclass in any event, and the Tribunal so finds.

10. For the remainder of this decision, a reference to subclasses or all subclasses of the Class TU visa does not include a reference to Subclass 580.

    Genuine Temporary Entrant

11. Having regard to the VET sector diploma of marketing and advanced diploma of marketing the applicant proposes to study, the relevant subclass in this case is Subclass 572.

12. A major 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)     …

13. 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.

14. 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.

15. 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 an equivalent criterion, and that if the criterion was not met, it would not be met for each of those subclasses.

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

    Findings

16. On the applicant’s evidence, and by reference to relevant considerations laid out in Direction 53, the applicant’s oral evidence, and written material provided by the applicant to the Department and Tribunal, the applicant has had, and continues to have, incentive to cease residence in Australia:

    a.The applicant has articulated why the applicant chose Australia as a study destination, for valuing Australian education and the experiences that brings, and for having made a selection of education providers (see written statement on Department file f.80);

    b.The applicant has close family members and friends outside Australia and in India, including his father who is aging, two brothers and his wife’s parents and family;

    c.The applicant does not have close family members in Australia other than his included wife;

    d.The applicant has articulated a plan to utilise the skills and knowledge gained in Australia in pursuits outside Australia;

    e.That plan consists of ‘finding a good job’ (visa application form - DIBP file f.23) and/or to join the agricultural industry in India, in a marketing role, or in a managerial role (written statement at f.93).

17. The applicant claims that it is and always has been his proposition that he wished to acquire skills, knowledge and qualifications in Australia that he would bring offshore and put to use.

18. The applicant gave evidence that he has a bachelor of arts from India.

19. The applicant gave evidence that he came to Australia in 2007 on a 573 student visa and proposed VET sector business coursers and a bachelor of business administration.  Despite proposing a degree course, and being granted the 573 higher education subclass of student visa for that degree course, he did not start the bachelor course.  He said he completed the advanced diploma of business management (DIBP f.57) after certificate and diploma courses in business – which he described in his written statement to the Tribunal as having imparted a ‘very basic understanding of what a business actually means’ (f.93).

20. He said at this time his career goal was to ‘find a good job’.

21. As suggested, at this point, the applicant was on the verge of moving on to become a university student, as he himself had proposed in his visa application, and which led to the grant of the 573 visa. 

22. Instead, he said, he changed his study to a certificate III in baking, in 2010.  Although it was a one year course, he said it took him two years to finish it. 

23. As suggested, his move to VET sector baking was unrelated to his previous study, was at a level below his Indian bachelor degree and also his Australian advanced diploma, and did not appear to be part of a clear future plan.

24. As stated by the applicant, he went on to obtain a sponsor for the ENS permanent visa (subclass 186).  As suggested, the Tribunal finds that the applicant applied for that permanent visa, because the applicant wished and intended to stay permanently in Australia.  The ENS visa application was refused in January 2013. 

25. The applicant applied for a 485 visa, which was refused and appealed to the Tribunal.

26. The applicant said he also applied for a 457 visa offshore in Bali, having obtained a sponsor who was different to his ENS sponsor.

27. He said his 485 visa Tribunal appeal was successful, he was granted the 485 visa, and withdrew his offshore 457 visa application.

28. As stated by the applicant, he worked full time while holding the 485 visa, in cleaning jobs and driving taxis.

29. As suggested, the 485 visa allows the applicant wide latitude to work, study and live in Australia.  As suggested, the applicant did no appreciable study while holding the 485 visa despite having the right to study, or work and study at the same time. 

30. The proposition suggested is that if the applicant intended to stay in Australia temporarily, and there were additional skills or qualifications which were of value to a future plan which lay outside Australia, the 485 visa allowed wide latitude for the applicant to work and also continue studying, part time perhaps, to acquire the skills and knowledge necessary to embark upon the claimed future plan.

31. As suggested, the applicant did not choose to study while on the 485 visa, and this suggests that the applicant did not consider there to be any pressing need to acquire additional skills or knowledge for his future plans. 

32. As suggested, working as a cleaner and driving taxis, which is how he spent the time afforded by the 485 visa neither better prepared him to join his father in the agricultural sector in India, nor in the baking industry.  It was pointed out to him that the 485 visa did not require him to study.  However, the Tribunal has abiding concerns that the applicant was content not to use the time afforded by the visa to further his claimed plan of acquiring skills and knowledge which would preceed, he claims, his eventual departure from Australia.

33. He married his wife in 2008 and he said she joined him in Australia in 2014 on the 485 visa.

34. Time passed and the 485 visa was to expire.  It is around this time that the applicant again proposes to study; as suggested, a time when study supported the grant of a further student visa, which would extend the applicant’s stay in Australia.

35. He applied for a further student visa in May 2015, and included his wife who was by then living in Australia with him.

36. He proposed the diploma of marketing and advanced diploma of marketing and provided corresponding COEs to the Department (DIBP f.42-43) which indicate that both courses would have been completed by July 2016.

37. Although he now concedes that the bridging visa he held allowed him to study, he claims he did not know this at the time, his college did not permit him to study, and he did not study.

38. As suggested, the applicant’s bridging visa also allowed him to work, and the applicant concedes that he was aware he could work, and worked full time. 

39. As suggested, the Tribunal considers that it is a simple and uncomplicated step for a motivated student who intends to acquire skills and knowledge in a temporary stay in Australia to clarify whether study rights are held; for example, by making a simple call to the Department, or consulting the Department’s online visa entitlement service, VEVO.

40. As suggested, the Tribunal considers that by not making simple enquiries, the applicant has demonstrated a lack of interest in study entitlements suggesting a lack of interest in the study itself which casts doubt on the value of the courses proposed to the applicant’s future. 

41. Nor does the Tribunal accept that the applicant was prevented from study by education providers because of the visa refusal decision.  The courses proposed by the applicant are abundant in the VET sector and if one provider were reluctant to allow the applicant to study after having been refused the visa, the Tribunal would expect a motivated student to make enquiries of the many other providers offering the same course. On the evidence, the applicant did not make those enquiries, which again suggests a lack of interest in the study itself.

42. As suggested, there is a pattern to the applicant’s immigration conduct: when visas are held which do not, by their conditions, require study, but nonetheless permit study (the 485 visa and the bridging visa A) no substantial study takes place.  However, those visas still provide lawful stay in Australia, and the applicant has used that lawful stay to work in jobs unrelated to his claimed future ambitions. 

43. Doing so is not a breach of immigration laws.  However, over several years now the applicant’s own conduct illustrates that he sees little value in the study he proposed in 2015, which remains entirely incomplete, and which he again proposes now.  As suggested, the series of VET sector courses in business, leading to the advanced diploma of business management, include both management and marketing content.  The standalone VET sector marketing courses he now proposes share content with the Australian VET sector business study he has already completed, years ago. 

44. As suggested, the Tribunal considers the university degree level study completed by the applicant in India to be at a higher level than study at the vocational or TAFE level.  As suggested the university degree course is designed to provide a degree holder with skills in critical thinking and analysis that may be deployed to solve disparate challenges. 

45. As suggested, it is of concern to the Tribunal that the applicant was already a university graduate before ever coming to Australia and has over many years chosen to study trade qualifications in the VET sector, at a level below his university accomplishments.

46. As suggested, the Tribunal does not find the applicant’s discursive written description of the challenges facing the agricultural sector in India (f.93) to be persuasive.  Those descriptions are general in nature and touch on issues of international development which go well-beyond marketing or business.  At hearing, he did not speak to those propositions in any detail.  His oral evidence on these matters was limited to claiming that he could help farmers with small plots of land.  The Tribunal observed that unless farmers with small plots sold directly to consumers, and therefore had a retail element to their business, the Tribunal could not see how skills in the discipline of marketing would be of much assistance. 

47. The applicant’s own description of ‘agricultural marketing’ at folio 93 indicates that he believes that marketing extends back to the planning of production, growing and harvesting, and grading, packing and storing produce.  As the syllabi of the courses he proposes will reflect, that notion is ill-conceived, and underlines a lack of any clear and convincing career direction on the part of the applicant, which in turn suggests that the applicant himself is unable to discern any appreciable value in the study proposed.  This, the Tribunal considers, explains why the applicant was not more motivated to discover whether he had study rights, and why he did not pursue the courses while also working on his 485 visa.

48. As suggested, the Tribunal is not persuaded that the study now proposed has distinct value to a future the applicant intends will be outside Australia. 

49. The migration agent submitted that the applicant’s choice to study baking was an aberration.  Direction 53 indicates that reasonable changes to career and study plan should be accommodated.  The Tribunal does not consider that choice to be an aberration which is now past.  The choice supported the applicant’s attempts to gain the permanent 186 visa and the 457 work visa, which may lead to a permanent visa.  On the evidence, it was as choice made for a reason, and that reason did not lie outside Australia.

50. The applicant’s own conduct in proposing further stay to study material of limited value suggests that the applicant will not yield to the array of incentives noted above to leave Australia, but rather intends to live on in Australia and to obtain permanent residence (as was attempted in 2012) in order to provide a lawful basis for a life for the applicant and his wife intended to be here, and not in India or elsewhere.

51. 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.572.223(1)(a).

52. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. 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.

53. There is no evidence the secondary applicant can meet the primary criteria in any subclass.  The secondary applicant also fails against the relevant secondary criteria.

54. As the Tribunal has found that the applicants do not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Adrian Ho
    Member