BALCER (Migration)

[2017] AATA 102

BALCER (Migration) [2017] AATA 102 (12 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ROBERT BALCER

CASE NUMBER:  1606769

DIBP REFERENCE(S):  BCC2015/2822204

MEMBER:Gina Towney

DATE:12 January 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 12 January 2017 at 4:26pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Not genuine temporary student – Low level courses undertaken over ten years – Long-term part time employment – Limited incentive to return

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 2, cl 572.223, Condition 8516, Direction No.53

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 28 September 2015.  The courses listed in the application were a Diploma of Website Development, (from 12 January 2015 to 23 October 2015), and a Diploma of Leadership and Management (from 12 October 2015 to 9 October 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. In support of his application the applicant made a written statement titled Explanations and Clarifications – GTE (genuine temporary entrant).  The document recorded the following (in summary):

   ·     Since arriving in Australia on 14 September 2006 the applicant has completed an English course (2007), a Certificate IV in IT (2009), a Diploma of IT (2011), and an Advanced Diploma of IT (2013), and was about to complete a Diploma of Website Development (2015). The applicant has enrolled in a Diploma of Leadership and Management;

   ·     The applicant previously worked as stock control in Poland, but has an interest in Information Technology and has a deep desire to start his own business developing websites and providing other related services.  The applicant has obtained qualification in web development and IT related areas and now requires management skills;

   ·     After completing the proposed course the applicant will obtain these skills, which would be extremely beneficial to him in starting his own business, and he will return to Poland at the end of the courses;

   ·     The applicant does not have family in Australia but he does have close friends, and would like to return to Poland to assist his elderly mother and the children of his deceased sister;

   ·     The applicant has been working 20 hours a week as an Assistant in Nursing at Holy Family Services since November 2009, and has provided bank statements;

   ·     The applicant has always respected Australian values, heritage, language and customs, and has been a law-abiding resident during his time in Australia.

5. The delegate decided to refuse to grant the visa on 21 April 2016. 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 in that he did not satisfy the genuine temporary entrant criteria.

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

   ·The applicant entered Australia on 14 September 2006 and had not departed since;

   ·The applicant had typically chosen courses of short duration and low-cost and the courses somewhat related, leaving the delegate to question why the applicant would be pursuing further study in similar subjects for up to 10 years without any attempt to progress to a higher education level (573);

   ·The applicant was previously granted a Higher Education Visa (TU 573), which was subject to condition 8516, which required the Visa holder continue to be a person who would satisfy the primary condition for holding the Visa, however information on the Provider Registration and International Student Management System (prisms) shows the applicant did not undertake study or maintain enrolment in the principal course, and therefore he did not comply with Visa condition 8516;

   ·The delegate had serious concerns as to the applicant’s true intention, and found that he appeared to have enrolled in a new course for the purpose of securing a further Student Visa rather than due to a genuine interest in study and overall academic progress. The delegate found the applicant appeared to be using the Student Visa program as a means of maintaining ongoing residency in Australia, and that he did not genuinely intend to stay in Australia temporarily;

   ·Having considered the applicant’s lack of academic progress, his study history, his potential circumstances in Australia, his immigration history and his lack of travel outside Australia since 2006, the delegate found the applicant was using the Student Visa program to circumvent permanent migration programs and was not satisfied the applicant was a genuine applicant for entry and stay as a student temporarily.

7. The applicant appealed to the Tribunal, provided a copy of the departmental decision.

8. Prior to the hearing the applicant provided an updated Confirmation of Enrolment, in relation to a Diploma of Software Development, with course dates from 19 September 2016 to 3 September 2017.

9. The applicant also provided a written statement which recorded the following (in summary):

   ·The applicant recorded that he had arrived in Australia on 14 September 2006 as the holder of a Student Visa, and reiterated that he had a good academic history (outlined above), that now included a Diploma of Leadership and Management (2016) and that he was currently enrolled in a Diploma of Software Development;

   ·The applicant reiterated that he has a deep interest and desire to start his own business developing websites and providing other computer and software related services.  He went on to say he could not start the Masters of Networking in April 2014 due to ill health, and that he was unable to obtain later entry wants his condition improved;

   ·The applicant stated that after completing his current course he will be totally equipped with high levels of skills, knowledge and qualifications to develop software in the IT industry and would be ready to kick-start his business career in his home country.

10. The applicant appeared before the Tribunal on 10 January 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

11. During the hearing the applicant confirmed that he had successfully completed the Diploma of Leadership and Management.  Asked why he continued with his appeal (as he had completed the courses listed in his Student Visa application) the applicant said he now wanted to complete a Diploma of Software Development because he wants to open a business in Poland and Australia has a high level education system.

12. The Tribunal raised that the applicant had previously submitted, via written submissions, that he would complete his previous course and then return to Poland, but that he had failed to do so. The applicant said he changed his enrolment, but that he would definitely return to Poland after he has completed his current course. The tribunal raised that it had difficulty accepting the applicant’s evidence on face value, as he had previously made the same submission but had failed to do so.

13. Later in the hearing the migration agent made submissions, including that the applicant had re-enrolled in a further course of study because he was unaware of the timelines associated with appealing to the Tribunal.

14. The applicant confirmed that he arrived in Australia on 2006, and had not departed since. Questioned as to why he had not travelled overseas, the applicant said that he often worked in his holidays and travelled within Australia during his breaks. The Tribunal raised the extensive amount of time that the applicant had spent in Australia, and his failure to return overseas, indicated that he saw Australia as his long-term home.

15. The tribunal also raised that despite being in Australia for more than 10 years the applicant had not progressed above the relatively low level Vocational Education and Training sector level (572).  During the hearing the applicant gave evidence that he previously attempted to enrolled in a Higher Education Level course (573) but was unwell and able to do so.

16. Later in the hearing the migration agent made submissions including that although the applicant had been studying in Australia for more than 10 years all courses had been related to Information Technology, therefore supporting his claims that he wanted to start his own business; the applicant had never attempted to obtain a permanent Visa in Australia, going against any finding that he saw Australia as his permanent home; and the applicant currently works in a nursing home contributing to the Australian community. In the present case the Tribunal has decided that the applicant does not satisfy the genuine temporary entry criteria

17. Toward the end of the hearing the Tribunal referred to Direction 53, and the factors that it needed to take into account, (as outlined in the hearing in that letter). At the end of the hearing the Tribunal invited both the applicant and migration agent to make any further submissions in support of the application, however both declined. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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 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)     …

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 Tribunal has decided that the applicant does not satisfy the genuine temporary entrant criteria. The reasons for this are outlined below.

24. In relation to the applicant’s migration history, the Tribunal notes the applicant arrived in Australia in 2006, and has not departed since. The amount of time that the applicant has spent in Australia, and his repeated enrolment in a series of short, and inexpensive courses, indicates that he is using the Student Visa system to maintain ongoing residence.  The Tribunal also notes that the applicant previously submitted that he would return to Poland upon completion of his previous course, but has failed to do so.

25. In making this finding the Tribunal notes there is no evidence before it that the applicant has applied for a long-term Visa, as raised by his migration agent. However, although the Tribunal considered this evidence it did not find it strong enough to counterbalance the issues outlined above.

26. In terms of the value of the course of the applicant’s future, the Tribunal notes the applicant has already studied extensively at the Vocational Education and Training (572) level, it does not accept that further training at this level would provide a benefit to the applicant sufficient to counterbalance the time and expenses associated with further study.

27. In considering this evidence the Tribunal also considered the applicant’s evidence that he previously enrolled in Higher Education (573), but was unable to complete his studies due to ill health. However, the Tribunal notes the applicant’s current application is in relation to Vocational Education and Training sector (572) in which he has already studied extensively.  Also, the Tribunal again notes that the applicant previously submitted that he would return to Poland upon completion of his previous course, but has failed to do so.

28. In relation to his circumstances in his home country, the Tribunal has considered the applicant’s evidence that he would like to set up a business upon return, and that he would like to return to care for his mother and his children’s sister, but it has also taken into account the applicant’s evidence that he is not married and does not have any children.  Therefore, although the applicant has indicated strong reasons to return, the Tribunal finds his actions over the last 10 years indicates he has limited incentive to return to Poland.

29. In relation to his potential circumstances in Australia, the Tribunal notes the applicant has been engaged in relatively long-term part-time employment as an Assistant in Nursing, and has concluded this would provide the applicant with a strong incentive to remain in Australia.

30. Having considered the applicant circumstances overall, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criteria. 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).

31. 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

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

    Gina Towney
    Member