1513838 (Migration)

[2016] AATA 4215

1513838 (Migration) [2016] AATA 4215 (8 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Agnieszka Zuzanna Wojtowicz
Mr Andrzej Zbigniew Kielt
Master Michal Maciej Kielt
Master Marcin Andrzej Kielt

CASE NUMBER:  1513838

DIBP REFERENCE(S):  CLF2015/35280

MEMBER:Gina Towney

DATE:8 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 08 August 2016 at 4:15pm

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 June 2015.  The courses listed in the application were a Diploma and an Advanced Diploma of business, with overall course dates from 8 June 2015 to 10 July 2016.

3. 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 decided to refuse to grant the visas on 24 September 2015. The delegate refused to grant the visas because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations in that she did not satisfy the genuine temporary entrant criteria.

5. More specifically the delegate found the following (in summary):

   ·the applicant had previously enrolled in four General Intensive English courses, but appeared to have completed only two of the courses;

   ·the Provider Registration and International Student Management System (PRISMS) recorded that the applicant previously completed an English course on 12 October 2014, and did not study between 13 October 2014 and 7 June 2015. Evidence provided by the Department indicates that the applicant did not depart Australia during this time;

   ·there is no evidence that the applicant sought deferral from her education provider for the alleged gap in study;

   ·the applicant failed to provide any explanation for the alleged gap in study.  That is, in correspondence dated 3 July 2015 the applicant was invited to make submissions to the Department in relation to these issues, and although her migration agent sought an extension of time on 29 July 2015, which was granted until 14 August 2015, the delegate recorded that no further response had been received as at the date of decision.

6. The first applicant, Ms Agnieszka Zuzanna Wojtowicz, and the third and fourth applicants (both of whom are children) appeared before the Tribunal on 5 August 2016.  The first applicant (the applicant) gave evidence and presented arguments on behalf of all applicants.

7. At the hearing the applicant gave evidence that she had not completed either of the courses listed in the Student visa application, she was not studying at the present time, and she believed she had last studied in approximately October 2015. Of relevance, the applicant said that she had been advised by her migration agent that she did not need to continue studying because she had applied to be sponsored.

8. During the hearing the applicant gave evidence that she and her partner, and the two sons, had sold everything they owned in Poland and travel to Australia for a better life. The applicant said they had met a woman online who offered to sponsor them.  The woman then introduced them to an agent, to whom they paid a lot of money and gave all of their papers, and the agent then applied for a Temporary Work (Skilled) Visa, (the applicant provided an Acknowledgement of application for such, dated 16 June 2016). 

9. However, the applicant went on to say the agent did not take the correct action on their behalf, and the application was no longer ongoing. The applicant explained that they had been left in an extremely difficult position, as they had paid money, and provided their documents, as well as received advice that they did not need to continue studying, but the person who was allegedly assisting them had failed to do so.

10. During the hearing the Tribunal explained that it had sympathy for the applicants’ dilemma, however the issue it was required to assess was whether the applicant was a genuine temporary entrant for the purpose of studying in Australia. The Tribunal explained that the fact that the applicant had stopped studying, after being advised by her agent that she no longer was required to do so, indicated that her interested was not in studying, but in staying in Australia. The Tribunal also explained that applicants may hold mutually exclusive but harmonious intentions to both study, and remain in Australia indefinitely, but they must have a genuine interest in study in order to meet the genuine temporary entrant criteria, which the applicant seemed to lack.

11. Once again the Tribunal notes that it is sympathetic towards the applicants, based on the evidence provided by the first applicant during the hearing, but there is nothing that the tribunal can do to assist the applicants.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

14. 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)     …

15. 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.

16. 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.

17. In relation to the applicants’ circumstances both in their home country, their potential circumstances in Australia, and their immigration history, the Tribunal considered the evidence provided by the applicant during the hearing that she, her husband, and their two sons had sold all their belongings in Poland and located to Australia for a better life, and that she stopped studying because the agents had she no longer had to do so. The applicant also gave evidence that they had previously applied for a Temporary Work (Skilled) Visa.  The combination of this evidence leads the Tribunal to find that the applicants had intended to relocate to Australia on a permanent basis, and were not in Australia temporarily for the purpose of study.

18. In relation to the value of the course to the applicant’s future, the Tribunal notes that the applicant gave evidence that she had not studied since approximately October 2015, she was not studying at the date of application, she had not completed either of the courses listed in her student Visa application and she stopped studying because her agent said she no longer had to. This indicates to the Tribunal that the value of the course to the applicant’s future is extremely limited, as she stopped pursuing it when presented with another avenue for long-term stay in Australia.

19. As noted above, the applicant gave evidence that she and her family had been misled and cheated by people in Australia, and the Tribunal has sympathy for the applicants’ plight. However, the Tribunal’s role is to assess the genuine temporary entrant criteria, and it finds that the current applicants do not satisfy it.

20. 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).

21. 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.

22. The secondary applicants do not satisfy clause 572.322.

    DECISION

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

    Gina Towney
    Member