Aziz (Migration)

[2017] AATA 2882

Aziz (Migration) [2017] AATA 2882 (13 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rubina Aziz

CASE NUMBER:  1609412

DIBP REFERENCE(S):  BCC2016/1299092

MEMBER:Mara Moustafine

DATE:13 December 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 13 December 2017 at 3:27pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Completion of only VET courses – VET sector level for nine years – Owns property in Australia – Majority family reside in Australia

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 1, Item 222, Schedule 2, cl 572.223

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 was first granted a TU 572 visa onshore in Australia on 26 January 2010 and was granted a subsequent TU 572 Student visa which was valid until 23 March 2016. The applicant was previously a dependent on her husband’s UE-422 Medical Practitioner visas from 1 June 2005 until their expiry on 2 November 2009.  The applicant to the Department of Immigration for another TU 572 Student visa to undertake an Advanced Diploma of Business on 22 March 2016. The delegate decided to refuse to grant the visa on 8 June 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. According to the decision record, a copy of which the applicant provided to the Tribunal for the purposes of the review, 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 she was not satisfied that the applicant genuinely intended to stay temporarily in Australia. Among other things, the delegate was concerned about the value of her proposed courses to the applicant’s future and questioned whether she needed the additional qualification in order to establish her business, given the hospitality, business and management courses that she had already completed. The delegate was also concerned that the presence of a large number of the applicant’s family members in Australia, her ownership of real estate here and her application for a CA-143 Contributory Parent visa suggested a strong incentive to remain in Australia.

5. The applicant applied to the Tribunal for a review of this decision on 24 June 2016. She was represented in relation to the review by her registered migration agent.

6. On 5 December 2017, the applicant’s migration agent provided to the Tribunal a submission and documents in support of the applicant’s claims, including a Confirmation of Enrolment (COE) for an Advanced Diploma of Marketing and Communications (04/12/2017 to 25/01/2019) created on 28 November 2017; certificates of completion and records of results for Certificate III and Diploma of Hospitality, Diploma of Business, Diploma of Management, Advanced Diploma of Management; Advanced Diploma of Business; and Certificate IV in Commercial Cookery; and documents related to several non-CRICOS courses at TAFE SA, including a Certificate II in Women’s Education, Diploma and Advanced Diploma of Human Resources Management.   

7. The applicant appeared before the Tribunal on 12 December 2017 by video-conference between Adelaide and Sydney to give evidence and present arguments. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

10. 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)     …

11. 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.

12. 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.

13. At the hearing, the Tribunal discussed with the applicant the reasons her Student visa had been refused in the context of the Genuine Temporary Entrant criterion, noting that the primary purpose of a Student visa was for an applicant to study and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant her circumstances in Pakistan and Australia, her immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.

14. The applicant told the Tribunal that she had first visited family in Australia in the 1990s then returned with her husband in 2005 when he joined her brother-in-law’s practice as the holder of a Medical Practitioner visa for four years. After this visa expired in November 2009, she applied for her first Student visa as her youngest son was studying in Australia and she had to look after him and also wanted to do something for herself as her husband had died and she did not wish to depend on others.

15. The applicant told the Tribunal had completed a Certificate III, Diploma and Advanced Diploma in Commercial Cookery and then studied business and management courses. The last registered full-time course of study she completed was her Advanced Diploma of Business on 18 July 2017. She was now enrolled in an Advanced Diploma in Human Resources at TAFE which started in November 2017, which she now understood was not a registered full-time course of study. She also held a COE for an Advanced Diploma in Marketing and Communications which started on 4 December 2017. Her purpose in studying all these courses was to open a small business in the food industry with her brother in Pakistan after he retired. The applicant said that In Australia she had worked on a voluntary basis in a family friend’s burger shop and as a cook in a day care centre for a few months.

16. The applicant confirmed that the majority of her family were living in Australia: three of her siblings were Australian citizens, two of her children were permanent residents awaiting citizenship and one son was an international student. Her only family in Pakistan was her brother with whom she allegedly planned to open a business.

17. The Tribunal notes that all seven courses that the applicant has studied and completed since first being granted a Student visa in Australia in January 2010 have been at the Vocational Education and Training (VET) sector level and she has not progressed to the Higher Education sector level. Moreover, as discussed at hearing, the Tribunal is concerned that, having now completed her Advanced Diploma of Business, the course for which she sought the Student visa under review, in July 2017, the applicant has now enrolled in another VET course – an Advanced Diploma of Marketing and Communications – for which she only obtained a COE on 28 November 2017, after receiving her hearing invitation. This suggests that she has done so in order to extend her time in Australia, rather than a genuine interest in the subject. The Tribunal notes that the applicant’s proposed course would extend her time as student at the VET sector level to nine years, which is inconsistent with the purpose of a Student Visa.

18. As discussed with the applicant, a key issue for the Tribunal is her genuine intention to remain in Australia temporarily as a student. In this context, the Tribunal shares the Department’s concern that the applicant’s circumstances in Australia, where she has been living on a fairly continuous basis since 2005, owns property and all her family except one brother is resident, does not suggest that she has strong incentive to return to Pakistan. Her application for a CA-143 Contributory Parent visa, which would allow the applicant to live in Australia on a permanent basis, compounds the Tribunal’s view. While the applicant has claimed that all her courses related to her plans to return to Pakistan to establish a business in the food industry with her remaining brother, the Tribunal found her evidence regarding this proposed business and her role in it vague and notes that it is conditional on her brother’s retirement at an unspecified time in the future. The Tribunal has had regard to, but is not persuaded by, her migration agent’s submission that the applicant envisages selling her property in Australia when she returns to Pakistan and that a Contributory Parent visa will simply facilitate her frequent business-related travel between Australia and Pakistan.  

19. 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).

20. 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

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

    Mara Moustafine
    Member