Beni-Tulloo (Migration)

[2018] AATA 29

Beni-Tulloo (Migration) [2018] AATA 29 (8 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sharmila Beni-Tulloo
Mr Coomar BENI

CASE NUMBER:  1619572

DIBP REFERENCE(S):  CLF2016/35198

MEMBER:Wendy Banfield

DATE:8 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 January 2018 at 7:48pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector Visa – Wishing to study further courses in Australia –  Exploring small business opportunities in Australia – Using student visa program to maintain ongoing residential status – Not a genuine temporary entrant

LEGISLATION

Migration Act 1958, ss 65, 499
Migration Regulations 1994, r 1.12 Schedule 1 Item 1222 Schedule 2 cls 572.223, 572.223(1)(a)

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 17 June 2016. The delegate decided to refuse to grant the visas on 2 November 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 visas because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because it appeared the applicant had obtained an offer of enrolment for the purpose of remaining in Australia.

   Background

4. The applicant is a citizen of Mauritius and is currently 42 years old. The secondary applicant is her husband who is aged 52.  Ms Beni-Tulloo first came to Australia in November 2007 to study English. As well as her husband, she had two children in Australia.

5. The applicant completed studies in Disability in Australia and has worked as a nursing assistant in that field. She has also worked as a hairdresser and packer. The secondary applicant Mr Beni works as a cleaner. Ms Beni-Tulloo wants to study a Bachelor of Accounting in Australia which will take two and a half years to complete. She has an offer from an education provider but is not currently enrolled.

6. The primary applicant appeared before the Tribunal on 8 January 2018 to give evidence and present arguments. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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)     …

10. 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.

11. 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.

12. The applicant confirmed that she had previously studied courses in disability in Australia but claimed that as she grew up in a business family, she now wants to study accounting. She said she intends to take a Certificate IV in Business Management and then commence a Bachelor of Accounting. The applicant said she would then investigate having her own business. The applicant stated that in addition to working in disability, she had been interested in social work but could not find a suitable institution to study in that field.

13. According to the applicant she and her husband had a grocery shop in Mauritius and she had also worked in a relatives shoe shop as well as being a hairdresser. She said she is working as a packer while her husband works as a cleaner. The applicant’s two children are in Australia as well as her husband. She has her father, sister and in-laws in Mauritius. The applicant said she last returned to Mauritius about five years ago.

14. Although the applicant said she would consider having her own business or finding a employment after her studies, no solid details or plans were provided and no independent evidence to support her claims. When asked what incentive there was for her to return to Mauritius at the end of her course, the applicant said she did not have a future there due to her age and her father being sick. The Tribunal advised the applicant that to be eligible for a student visa she needed to demonstrate that she is a genuine temporary entrant. In response the applicant advised she has been in Australia for ten years and feels safe here, she said Mauritius is no longer safe and it is also not good for her children’s future.

15. The Tribunal has weighed the evidence in the applicant’s case and is not satisfied she is a genuine student. The Tribunal accepts the applicant has studied successfully in the past and completed courses, however, in the ten years she had spent in Australia, Ms Beni-Tulloo has not progressed significantly and is only now considering pursuing a Bachelor degree. This would take the applicant’s stay in Australia to 12 or 13 years. Ms Beni-Tulloo has not demonstrated satisfactorily why she wants to study accounting which is unrelated to her previous courses, how she intends to use those qualifications and what value they will have to employment prospects in her own country. In addition, the applicant has stated she does not want to return to Mauritius as she feels safer in Australia has established herself here which is not consistent with being a genuine temporary entrant for study.

16. Although the applicant said she would study even if she was successful in the Federal Circuit Court in relation to her 457 Temporary Work Visa, this indicates the applicant is pursuing options to stay in Australia, rather than studying for the genuine purpose of improving her career prospects in her own country.

17. 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).

18. 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.

    Member of Family Unit – Secondary visa applicants

19. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria. Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

20. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the secondary applicant is unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.572.223.

    DECISION

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

    Wendy Banfield
    Member