ACUNA PLAZA (Migration)

[2017] AATA 3117

ACUNA PLAZA (Migration) [2017] AATA 3117 (1 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Victor Andres ACUNA PLAZA

CASE NUMBER:  1613595

DIBP REFERENCE(S):  BCC2016/944924

MEMBER:Wendy Banfield

DATE:1 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 01 September 2017 at 5:41pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether the applicant is a genuine applicant for entry and stay as a student – Extensive time spent outside of home country – Limited value of further studies – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 572.223(1)(a)

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 7 March 2016. The delegate decided to refuse to grant the visa on 16 August 2016. 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 delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because his education and employment background were inconsistent with his current studies. The applicant had not demonstrated how the courses he had chosen would improve his employment prospects in his own country.

4. The applicant appeared before the Tribunal on 16 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister Claudia Acuna Plaza.

5. The applicant was represented in relation to the review by his registered migration agent.

   Evidence of the visa applicant

6. The applicant came to Australia in October 2012 to study Business. He undertook preparation studies followed by a Certificate IV in Business. According to the applicant he was unable to continue for a period of time due to a work accident where he broke his foot. The applicant said he decided to change his studies to cooking and also needed to improve his English proficiency. He said he found it difficult due to him being more familiar with US English.

7. The applicant claimed he decided to study cooking as he planned to return to his own country and pursue that as a career. He said he was advised to obtain qualifications in an English speaking country. The applicant stated he required a further six months to complete his studies after which he would be happy to go home. This was because he has been travelling around the world for 17 years. The applicant said he decided to be a chef because he was working with a good chef in Australia and felt proud of the work he was doing.

8. The Tribunal asked the applicant why he was studying to be a chef when he already had a great deal of practical experience. The applicant claimed a lot of different employers require a diploma from an English speaking country. The applicant said he wants to return to Peru in order to look after his parents which is his responsibility as the son. He also said he has a job offer from a chef who used to work in Australia. According to the applicant, the owner of the restaurant that wants to employ him used to work on the Gold Coast and is willing to wait until he completes his qualifications. The applicant said he is not currently working but his parents send him money for support. The Tribunal asked the applicant why he chose to study in Australia rather than the US where he had lived and worked. He said it was because of the food was more pure and he liked Australia after he had visited on cruises.

9. The applicant does not have family in Australia as his parents and siblings are in Peru. He said after completing his Certificate III and IV in Australia, he will be a qualified chef. While in Australia the applicant has worked as a casual chef in Brisbane which was when he had an accident and ceased working. Since arriving in Australia in 2012 he has returned to Peru once for his father’s 80^th birthday. The applicant claimed the incentive for him to return to Peru was his parents and he would be happy to return after he completes his studies. He said he just wants to go home as a qualified chef, work, settle down and see his family.

   Evidence of the witness – Claudia Acuna Plaza

10. The witness referred to a letter she had provided in support of the application. She said the applicant would finish his studies in March 2018 and he is expected back in his own country then. As was explained in her letter, the witness said she lives with her parents and works in the Ministry of Education in Peru. Due to the advanced age of her parents the applicant needs to return. She said her father owns three properties in Lima and other parts of the country. The witness was asked about the relevance to the visa application and she said it was because the applicant needs to help her parents to administer those properties. She said it was difficult for her alone. When her brother was there, they both helped.

11. The witness said the applicant would be able to undertake a project of some kind on his return because her parent’s properties were in tourist areas. The Tribunal asked the witness what the applicant’s plans were for on his return to Peru. She said he has the opportunity to work in Lima but there was also an opportunity for him to start a restaurant or something similar in one of the family’s properties. The witness said she hoped those projects were still in the applicant’s mind.

12. The witness said she thought it was important for authorities in Australia to know that she is a public official in Peru for more than 10 years. For this reason she is aware of the responsibilities of a student in the country where a person studies. She said it would be a terrible thing for her family if her brother did not follow the rules. The applicant has worked and studied for many years in other countries and has always respected the laws of the country and will be responsible in Australia.

    Further evidence of the visa applicant

13. The Tribunal put information to the applicant that it considered could be the reason, or part of the reason for affirming the decision under review and invited him to comment or respond to the information. He was advised that he could request time to provide a response and the Tribunal would consider that request. The information put to the applicant was that he said he had been offered work by a prestigious restaurant in Peru whereas his sister gave evidence that he was planning to develop properties owned by his father into a restaurant or hotel.

14. The applicant said wants to improve his management skills and learn from the restaurant offering him work in Peru. His plans for the future would be more difficult if he does not learn from them. He said he intends to work in the restaurant for a year to a year and half but what his sister said in her evidence is true.

15. The representative requested time after the hearing to make further submissions in response to the information that was put to the applicant at the hearing which the Tribunal agreed to.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

18. 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)     …

19. 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.

20. 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.

21. The Tribunal considered the applicant’s circumstances in Peru, his potential circumstances in Australia, his immigration history and other relevant information in making its decision. The evidence submitted to both the Department and the Tribunal has been taken into account. After the hearing, the applicant submitted further information in support of his review, in particular, a letter confirming completion of a Certificate IV in Commercial Cookery; a letter of offer of employment from Central Restaurante in Lima, Peru and a second letter the owner of the restaurant, a letter of support from Imagine Education in Queensland, letters from the applicant’s sister and father, a further submission from the representative and several untranslated documents in Spanish which appear to relate to properties owned by the applicant’s family in Peru and the Tribunal has considered this evidence in making its decision.

22. The applicant first arrived in Australia in August 2012 as the holder of a Subclass 572 visa with an intention to study Business. After completing a Diploma of Business, he later changed direction and decided to pursue Cooking and Hospitality. According to the evidence submitted post-hearing, the applicant has completed the Certificate IV in Commercial Cookery and plans to start a Diploma of Hospitality Management in September. The applicant declared he plans to return to Peru in March 2018 as he has a job offer from the Chef/Owner of the Central Restaurante in Lima, Peru. It was also submitted by the applicant’s sister Claudia Acuna Plaza that the applicant wishes to start a business in Peru at one of the properties owned by his father.

23. On the evidence available to the Tribunal, the applicant’s circumstances in his home country are that he has his parents and sister there. His sister Claudia stated the applicant is expected to return to his own country in 2018 because their parents are elderly and she is currently managing the familly properties herself and wants her brother to take responsibility. Since his arrival in Australia the applicant said he had returned to Peru once for his father’s 80^th birthday but has otherwise been living away from the country for 17 years. Before leaving Peru he had worked as a chef and assistant chef according to his resume that was submitted in evidence to the Department. The applicant then worked as a cook or chef on cruise ships and spent time in the United States, also working as a chef. The applicant said he chose to study in Australia as he had visited during his cruise ship work and he found the food to be more ‘pure’.

24. The applicant’s potential circumstances in Australia are that he has been in the country for more than four years and has completed course in Business and Commercial Cookery. Based on information in his resume, he has been employed in restaurant positions in Australia as a casual chef, sous chef (including senior sous chef) and head chef.

25. The Tribunal considered the value of the courses undertaken in Australia to the applicant’s future. As outlined, the applicant has undertaken courses in Business Studies to Diploma level and Commercial Cookery to Certificate IV during his time in Australia. Based on the subjects undertaken during his Business programs, the applicant has studied general business management subjects in addition to his cooking qualifications. The applicant claimed he was required to obtain a Diploma in Hospitality in order to take up the offer of a chef’s position in Peru, which was supported by a letter from the owner of the business concerned. Based on the applicant’s past work history which indicates wide ranging experience as a chef at different levels, and on his studies to date, the Tribunal is not satisfied the addition of a further Diploma in Hospitality Management will be necessary, or of benefit to his career. The letter from Mr Martinez, owner of the Central Restaurante in Lima says the applicant needs to have a Diploma in Hospitality or higher qualification but there is no evidence his past work history has been considered. In addition, Mr Martinez’s letter states that once the applicant finishes his Diploma in Hospitality, he will be a fully qualified chef. In fact the applicant has already studied Commercial Cookery at Certificate III and IV level. Since the profession of chef does not necessarily require formal certification, he already has already obtained Australian vocational qualifications in addition to his extensive practical experience.

26. The Tribunal accepts the applicant has some ties to Peru due to his parents and sister residing there but this does not accepted as sufficient incentive for him to return. He has been away for 17 years, living and working internationally and has only returned once since coming to Australia. While the applicant’s sister gave evidence about her desire for him to return and assist her in managing property her family owns, the Tribunal is not satisfied the applicant genuinely intends to return to his own country once he completes a further Diploma course. The applicant himself did not refer to the issue of the family’s properties, or plans to turn one of them into a restaurant or hotel until asked to comment on his sister’s evidence. On balance, the Tribunal is not satisfied the applicant satisfied the genuine temporary entrant criteria.

27. 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).

28. 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

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

    Wendy Banfield
    Member