1515752 (Migration)

[2016] AATA 4706

1515752 (Migration) [2016] AATA 4706 (30 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Hiroko Shinozuka
Ms Kotono Shinozuka
Master Taiki Shinozuka

CASE NUMBER:  1515752

DIBP REFERENCE(S):  BCC2015/2856563

MEMBER:Lilly Mojsin

DATE:30 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 30 November 2016 at 9:49am

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 30 September 2015 for the primary visa applicant [applicant] to study Certificates I, II, III and IV in Business, Diploma of Business and a Diploma of Management.

3. The delegate decided to refuse to grant the visas on 5 November 2015.

4. 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).

5. The delegate refused to grant the visas because the applicant did not satisfy the requirements of cl.572 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant intended to stay temporarily in Australia and the applicant was not a genuine applicant for entry and stay as a student and therefore did not meet clause 572.223(1)(a).

6. By letter dated 13 October 2016 and posted to the applicants, the applicants were notified that the Tribunal had considered the material before it but the Tribunal was unable to make a favourable decision on this information alone. The applicants were invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, at a hearing on 9 November 2016.

7. The applicants were advised that, if they failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal might make a decision on the review without taking any further action to allow or enable them to appear before the Tribunal.

8. On 2 November 2016 the Tribunal received a Hearing Response notifying the Tribunal that the applicant did not wish to take part in the hearing or submit any documents.

9. The Tribunal has decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The Tribunal has proceeded to make a decision on the information available to the Tribunal, pursuant to s.362B.

10. This is based on the findings that the invitation to hearing was successfully delivered, via email, to the email address provided to the Tribunal by the recipient in connection with the review, satisfying s 379A (5).

11. The applicants were represented in relation to the review by their registered migration agent.

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 delegate of the Department was not satisfied that the applicant was a genuine applicant for entry and stay as a student because she had been studying in Australia since 22 April 2013 and had cancelled enrolment in a number of courses and had only completed Certificate II and III in Spoken and Written English since her arrival in Australia.

15. The delegate found that the applicant had not demonstrated how the proposed courses in Australia would improve her career prospects and had not demonstrated that her proposed course of study would be of a greater benefit to her than the work experience and qualifications she already held from Japan. The delegate also found that the applicant had not provided evidence that she had made a thorough investigation of her study options in Japan that raised serious concerns regarding her motivation to study in Australia. Furthermore the presence of the applicants’ children in Australia was an incentive for her to remain in Australia as a de facto resident rather than furthering her education as a genuine student.

16. The delegate also found that the second named visa applicant and third named visa applicant both did not satisfy the secondary criteria for the grant of the visa because they were not a member of the family unit of person who is the holder of a student visa or satisfied or has satisfied the primary criteria for the grant of the subclasses student visa.

    REASONS AND FINDINGS

17. The issue in the present application 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)     …

18. 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.

19. 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.

20. The applicants did not attend the Tribunal hearing. The Tribunal has not been able to explore with the applicants, particularly the primary visa applicant, their circumstances in Japan and in Australia. The Tribunal has not had the opportunity to discuss the visa applicant’s reasons for cancelling a number of courses in which she had been enrolled. The Tribunal has not had the opportunity to discuss with the applicant her reasons for studying in Australia instead of Japan, her reasons for studying the chosen courses and how these courses are relevant to her future career. The Tribunal has also been unable to discuss with the applicant her immigration history and in particular whether she has travelled to any other countries or has made any previous applications.

21. The Tribunal is unable to be satisfied on the information before it that the applicant intends genuinely to stay in Australia temporarily.

22. Accordingly, the applicant does not meet cl.572.223(1)(a).

23. The Tribunal has found the visa 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 visa 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.

24. As the Tribunal has found that the visa applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

25. The Tribunal also affirms the decision not to grant the second named applicant and third named applicant a Class TU visa as there no evidence that they meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 572 visa and there is no evidence that they meet the primary visa criteria in their own right.

    DECISION

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

    Lilly Mojsin
    Member