1511555 (Migration)

[2016] AATA 3753

1511555 (Migration) [2016] AATA 3753 (20 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gordon Dennany

CASE NUMBER:  1511555

DIBP REFERENCE(S):  BCC2015/1163218

MEMBER:Ruth Cheetham

DATE:20 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 20 April 2016 at 2:41pm

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). The applicant applied to the Department of Immigration for the visa on 20 April 2015. The delegate decided to refuse to grant the visa on 20 August 2015.

2. 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 and relevantly to this matter, 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).

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 the delegate was not satisfied that the applicant is a genuine applicant for entry and stay as a student.

4. The applicant appeared before the Tribunal on 20 April 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s 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.

   Consideration of factors specified in Direction 53

10. The applicant provided to the Tribunal a copy of the delegate’s decision, which sets out in full the applicant’s response to the delegate’s letter putting to the applicant the concerns about whether he meets the “genuine temporary entrant criterion” (that is, cl.572.223(1)(a) of the Regulations).

11. The applicant arrived in Australia on 28 January 2011 on a Working Holiday subclass 417 visa. He departed Australia on 7 October 2011 and returned seven days later. On 26 January 2012 he was granted a bridging visa subclass A and on 7 February 2012 was granted another subclass 417 visa, valid to 28 January 2013.

12. On 25 January 2013 the applicant applied for a Temporary Work (Skilled) subclass 457 visa, which was granted on 1 February 2013 to enable him to undertake employment with a particular company. He ceased that employment and his subclass 457 visa was cancelled on 18 May 2015.

13. On 20 April 2015 the applicant applied for a Student subclass 572 (Vocational Education and Training Sector) visa. The applicant intended to undertake a Certificate IV in Business, a Diploma of Business and an Advanced Diploma of Business.

14. The delegate wrote to the applicant and asked him to provide comment and documentation to support the granting of the visa, to which the applicant replied on 29 July 2015. In that reply, the applicant stated he has been given a potential job opportunity by his former employer in Ireland but he needs to improve his business credentials and has chosen to undertake a Diploma in Business for this reason. He stated he has chosen to study in Australia because he has established friendships in Australia with his employers. He has also chosen to study in Australia because he plays a very big part in his sister’s life with her newborn, who live in Sydney.

    Tribunal hearing

15. At the hearing, the Tribunal explained to the applicant that the genuine temporary entrant criterion was designed to ensure that people who came to Australia to study would complete their studies and take their qualifications back to their home country, that it was not intended to provide an avenue of accessing permanent resident, but the delegate had come to the conclusion that the applicant did not have a genuine intention to remain temporarily.

16. The Tribunal asked the applicant to provide evidence of his current enrolment. The applicant responded that he is not enrolled. The Tribunal informed him that this is also a criterion for the grant of any subclass of student visa, that he has to be enrolled. The applicant responded that he could not afford to pay the fees to enrol because without a student visa he has no work rights.

17. The Tribunal asked the applicant to provide evidence of the successful completion of studies in Australia. The applicant responded that he has not completed any course, that he studied for two or three months in the Certificate VI course in 2015 but did not finish the semester because the educational provider asked, about one or two weeks before the end of first semester, for the fees for second semester and he did not want to pay the fees because by that stage his student visa had been refused and he thought he might be wasting his money.

18. The Tribunal informed the applicant that academic history and achievement is one of the factors relevant to considering the genuine temporary entrant criterion. The applicant responded that he has not been given a chance to prove himself because the student visa was refused when he had not been able to finish any studies.

19. The Tribunal asked the applicant to explain why he did not undertake his studies in Ireland rather than Australia, since the job opportunity which prompted his studies is in Ireland and it would be equally possible, and likely more valuable, to undertake his studies in Ireland. The applicant responded that it is a better life in Australia and there are better opportunities for work here, that there is no work in Ireland, and he has set up his life in Australia over the five years he has been here. He said that his sister and her husband and their baby live in Australia. he said the colleges are better in Australia and that courses are cheaper. He said that the job in Ireland was offered on the basis that he has business studies completed. He said that there are better opportunities in Australia than in Ireland.

20. The Tribunal asked the applicant to describe his career or business plans, for when he completes his business studies. The applicant responded that he wants to start his own civil construction company, the same as the company he was employed by when he had his Temporary Work subclass 457 visa. The Tribunal asked where he planned to start the company and he said in Sydney. The Tribunal asked whether his plan was to study then set up a company and stay in Australia and the applicant said that was his intention, and that he would stay here and become a citizen when he was eligible. The Tribunal put to him that his intention appears to be to remain permanently, not to remain for the period of his studies and then depart. Combined with his lack of academic progress and failure to enrol, the Tribunal could conclude that his intention was not to study but to remain permanently, and the study was only in order to be qualified, in Australia, to start the career he wants to pursue in Australia. The applicant  agreed that he could see that his intentions did not come within the genuine temporary intention criterion.

    FINDINGS

21. As the Tribunal stated to the applicant during the hearing, his career intentions are admirable, but unfortunately they evidence an intention to remain permanently in Australia after he completes his studies. The applicant conceded this at the hearing. He does not intend to undertake studies in Australia and return to Ireland, he intends to undertake studies in Australia and set up a business in Australia.

22. Accordingly, the Tribunal cannot be satisfied that the applicant meets the genuine temporary entrant criterion in cl.572.223(1)(a).

    CONCLUSIONS

23. On the basis of the above, 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).

24. 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. 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

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

    Ruth Cheetham
    Member