Azizi (Migration)

[2018] AATA 2169

Azizi (Migration) [2018] AATA 2169 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Krenar Azizi

CASE NUMBER:  1609850

DIBP REFERENCE(S):  BCC2015/3262399

MEMBER:Lilly Mojsin

DATE:2 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2018 at 3:17pm

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector visa) – Genuine applicant for entry and stay as a student – No Confirmation of Enrolment or an Offer of Enrolment provided – Didn’t study whist holding a Bridging visa – – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, 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 and Border Protection 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 for the visa on 6 November 2015.

3. The delegate decided to refuse to grant the visa on 21 June 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).

4. 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 the applicant was genuine applicant for entry and stay as a student.

5. The applicant appeared before the Tribunal on 6 December 2017 and 8 February 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is a 33 year old Albanian national with Italian citizenship. He is unmarried. He arrived in Australia on 19 November 2013 as the holder of a TZ-417 Working Holiday visa and departed on 31 July 2014. The applicant returned on 19 September 2014 and has remained in Australia since.

8. The delegate was not satisfied that the applicant was a genuine student as he had not pursued any studies after high school and he had not provided any information of what specific employment he wished to pursue on completion of his studies, what his expected remuneration would be or outlined why a foreign qualification is necessary to facilitate his employment. Further the delegate was of the view that the applicant’s proposed studies are available in Italy and at far less cost than re-locating to Australia to study in a course that involves a significantly higher financial outlay.

9. The applicant provided to the Tribunal details of his study in Australia, Certificate II and III in Painting and a Certificate II in Business.

10. A submission by the applicant’s advisor of 17 October 2017 briefly states;

    In his secondary school he studied and completed a Diploma in Accounting and Business. This would have already qualified him to work as an accounts clerk or book-keeper in Italy.

    After he graduated from secondary school his first job was working as a painter and decorator which he did for a year. For the next 3 years he worked in a shoe factory as a warehouse worker. He then found another job as a painting labourer which he held for 3 years before coming to Australia in September 2014.

    His first jobs in Australia were as a labourer in NSW and SA and from November 2014 until the present time he has been working mainly as a painter. His first job after finishing school more or less determined his career path for him more likely due to lack of other opportunities than out of choice. He has spent half his working life to date in the painting trade and the other half in labouring or other manual work. He has never been employed in accounts or book-keeping.

    He has passed the IELTS test at the competent level.

    The fact that the economy in Italy is not promising means a person with ambitions and the mental ability to study, should be entitled to improve himself through overseas studies that would put him at an advantage when he returns home, coupled with his newly acquired grasp of English. In Italy, with his South Australian Certificate II in Business or higher and good command of English, he would not be limited to seeking work with a local Italian company but could find himself welcomed by international firms that need local people with good English and overseas qualifications.

    If he were to only study in Italy the Business courses would be taught in the Italian language. The applicant would be able to use his Australian qualifications and good command of English to work in any other EU country.

    He continues to maintain strong family ties with his home country and on his recent return used the opportunity to look for future employment prospects upon his graduation from the Australian business courses.

    He has chosen to remain in Adelaide to study. Adelaide and South Australia have the highest unemployment rate out of all the Australian major cities. He had already obtained a Certificate III in Painting and Decorating from TAFE SA in February 2017 and he has more than 2 year’s work experience as a painter. If he was only planning to remain in Australia and work as a painter, he could have moved to the bigger cities like Sydney or Melbourne or even to the remoter parts of Australia where his skills as a painter would be in high demand, where he could command a higher pay and where it was more likely that an employer would sponsor him under the 457 or ENS program. He has made no attempt to be sponsored under any other employer sponsored work program despite being aware of his advantageous position to do so in order to remain in Australia.

    He wishes to continue with his business studies including obtaining a Certificate III in Business and then a Diploma in Business. He is even thinking ahead to complete a Bachelor Degree in Business in the future. That would give him an even greater advantage when he returns to Italy.

11. At the Tribunal hearing the applicant said that he completed a Certificate II in Business in June 2016. He said that he received a refusal from DIMA 2 weeks before he finished. He did not enrol in other studies whilst being on a bridging visa as he did not want to pay for something he did not finish. It was put that he could have finished his studies by now if he had studied. He said that he would have enrolled had he known it was going to take so long to be processed.

12. After explaining to the applicant that in order to obtain a student visa he needed to be a student, when asked for Confirmation of Enrolment the applicant’s advisor asked for an adjournment. It was put that a letter was sent on 14.9.2017 by the Tribunal advising the applicant to provide the Tribunal with either a Confirmation of Enrolment or an Offer of Enrolment and none was produced. The applicant said his thinking should be that he should not pay money unless he has a visa. He said some institutions would not allow him to enrol if he had a bridging visa.  He said he did not start to study as he did not want to pay for a course.

13. At 2^nd Tribunal hearing the applicant produced Confirmation of Enrolment to study a Diploma of Business commencing on 8 January 2018 and ending on 7 January 2019.  Asked about the subjects he was studying, he said that he had a total of 8 units that must be completed to achieve the qualification. Asked about the subjects, he said it is about meetings planning, management, business in general. Asked about his career path he said he wants to get into management work.  He wants to work in business in north Europe where the pay rate is better, ie Belgium even Germany.  He grew up in Italy but he does not want to go and work there as it is not ideal. Once he obtains his qualification in English he has better choices in other parts of Europe.  Italy is more related to the Italian market.

14. In Australia he is working part time doing painting jobs as his family are traddies. He works for a few companies or he does small jobs. There are ups and downs getting jobs in Australia. During winter it is not very busy. It is not always steady work.

15. Asked if he doing the course on line he said he goes there 20 hours per week but goes 3 times per week, he goes Monday, Tuesday and Saturdays. He is not sure if the course is available on line but he did not ask.

16. He did not study this course in Italy. He said it is more a local thing and doing the course in Italian the qualification is not recognised in Europe. Asked if he has made any enquiries in other parts of Europe about the value of the current course to his career he said that he spoken to his school mates and to different people in Belgium and spoke to few friends who obtained their qualification in English. they told him they are always looking for people with English skills.  Asked why he did not go to England to study he said that it is too cold. It is more expensive.

17. His family are in Italy, his father and his brother. He has no children and is single. He was working in Italy working in a shoe factory, as a warehouse keeper and working as a painter. He does not have any military service commitment in Italy.

18. He intends to return to Italy once he finishes his studies. This year he needs to finish a Diploma of Business and hopefully an Advanced Diploma of Business. Possibly he will study for at least 2 years.

    REASONS AND FINDINGS

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

20. The issue in the present review 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)………..; and

    (iv)any other relevant matter; and

    (b)     …

21. 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.

22. 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.

23. The applicant is a 33 year old Italian citizen, he is single, does not have any children. He was working in Italy working in a shoe factory, as a warehouse keeper and working as a painter. He does not have any military service commitment in Italy and in addition there is no political or civil unrest in his country. His advisor opines to the economic circumstances in Italy as not being promising.

24. There is no information before the Tribunal to suggest that the applicant has an adverse immigration history.

25. The applicant does not suggest that his circumstances in Australia are other than as a single unmarried student, who works as a painter both for other companies and himself. He seeks to complete his studies and go to either Belgium or Germany, where he believes he will have a better chance of employment in management with a qualification obtained in English. His advisor has stated that he wishes to return to Italy where he has recently made enquiries regarding employment. As the advisor’s submission conflicts with the applicant’s evidence to the Tribunal, the Tribunal places little weight on this submission.

26. The Tribunal accepts that qualifications obtained in English speaking countries are beneficial to students who seek employment in non-English speaking countries.

27. But the Tribunal places more weight on the following:

    • The applicant has not provided any sound reasons for not studying the same course which is available in Italy other than to state that it is more a local thing and doing the course in Italy then such qualification is not recognised in Europe. 
    • Further he has stated that business studies completed in Italy are not being recognised in Europe, the independent evidence[1] indicates Individual governments of EU countries remain responsible for their education systems and are free to apply their own rules, including whether or not to recognise academic qualifications obtained elsewhere. Therefore the Tribunal is of the view that studies in Australia may also not be recognised in other EU countries and the Tribunal is of the view that this suggests the applicant has not made enquiries as the value of his course in Australia to obtaining employment in Germany or Belgium
    • Further when put to the applicant that he could have studied in England, he indicated it is too cold and costly to do so. The Tribunal does not accept that a person who claims that he seeks to live and work in Belgium or Germany would consider England a country which is too cold to go to in order to complete studies in English.
    • The applicant has personal ties to Italy, his father and his brother live there and the applicant maintains those ties. He has recently visited his family. He has no children and is single. As he has stated that he intends to seek work in Germany or Belgium the Tribunal is not satisfied that his family would serve as a significant incentive to return to Italy.
    • The applicant lives in Adelaide. He works as a painter in Adelaide. He states that he works for large companies and also for himself. He did not study, whilst the holder of a Bridging visa, from June 2016 until January 2018. When put to him that he was able to study on a Bridging visa and he would have finished his studies in that period, he said that he did not want to spend the money on a course that he might not finish. The Tribunal does not accepts that the applicant did not want to spend money on a course he might not finish as the applicant waited until after the first Tribunal hearing to obtain a Confirmation of Enrolment. The Tribunal is of the view that if the applicant was a genuine student he would have continued his studies whilst on a Bridging visa.
    • The applicant did not obtain a Confirmation of Enrolment until after attending the first Tribunal hearing. The Tribunal is of the view that this suggests that the applicant only applied for a Confirmation of Enrolment in order to obtain the visa sought to remain in Australia.
    • The Tribunal places greater weight on the applicant’s economic circumstances in Australia, as the applicant has employment with large painting companies and is also able to earn income as a self employed painter. These are significant incentives for the applicant not to return to Italy.
    • The applicant’s explanation of subjects he was studying in his course of study was vague. He was only able to state he was to study meetings, planning, management, business in general. The Tribunal is of the view that a genuine student would be able to describe the subject in which he is enrolled in some detail.
    • The applicant claimed he intended to seek employment in Germany or Belgium.  The Tribunal does not accept that the applicant has any knowledge about the value of his current course to his career because he only spoken to his school mates, different people in Belgium and a few friends who obtained their qualification in English who   told him they are always looking for people with English skills. As the applicant has made no enquiries with potential employers or businesses, the Tribunal is not satisfied that the applicant has made enquiries regarding his potential career after completion of his studies.

    [1]

28. On basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied, on balance,  that the applicant intends genuinely to stay in Australia temporarily.

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

30. 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

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

    Lilly Mojsin
    Member