Bernareggi (Migration)

[2018] AATA 1389

Bernareggi (Migration) [2018] AATA 1389 (5 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Gabriela Flavia Bernareggi

CASE NUMBER:  1617453

DIBP REFERENCE(S):  BCC2016/2444832

MEMBER:S Witts

DATE:5 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 05 April 2018 at 11:14am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is a genuine temporary entrant – Arrived on a working holiday visa – Provider Registration and International Students Management Systems record – Enrolled in several courses – Cancellations for non-commencement of studies – Able to study in home country – No real desire to return home to pursue a hospitality career

LEGISLATION
Migration Act 1958 ss 65, 359AA, 499

Migration Regulations 1994 Schedule 2 cl 500.212

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 on 7 October 2016 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 22 July 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 16 March 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is that the applicant does not genuinely intend to stay in Australia temporarily.

   Genuine applicant for entry and stay as a student (cl.500.212)

7. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

8. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian 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.

9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. At the hearing the Tribunal had a discussion with the applicant regarding the relevance of Ministerial Direction 69.

    Background

11. The applicant arrived in Australia on 25 July 2014 holding a TZ417 working holiday visa. At that time the applicant indicated that she was staying for a 1 year holiday. Apart from 1 trip to New Zealand the applicant has remained here.

12. Prior to Australia the applicant was in the UK for 6 months and has not been back to her home country, Argentina, since. The tribunal is concerned that the applicant has not returned home since 2013 and has not left Australia apart from a trip to New Zealand. The tribunal is concerned that this indicates that the applicant does not intend genuinely to stay in Australia temporarily.

13. The GTE criterion requires that the applicant is a genuine student because the applicant intends to stay in Australia temporarily when assessed with consideration of the factors outlined in Ministerial Direction 69.

    Circumstances in home country

14. Before coming to Australia the applicant finished high school and, for a time, studied Tourism and Events Management.

15. The applicant testified that she originally came as a tourist to Australia on a Working holiday Visa but loved the country and decided to stay for an indefinite period.

16. The applicant indicated that she has parents and brothers and sisters at home in Argentina. The applicant did not indicate that she had any issues remaining in contact and maintaining her personal relationships during her stay in Australia. She did indicate that she remained in reasonable contact with her family back at home.

17. There is no significant relevant evidence regarding factors indicated by Ministerial Direction 69 based on: military service, economic or social factors or things such as civil unrest.

    Circumstances and study in Australia

18. Adopting the procedure in Section 359AA of the Act, the Tribunal informed the applicant of the potential of adverse information:

    I am going to share with you some potentially adverse information from a Departmental database.

    It is called PRISMS (the Provider Registration and International Students Management System) and it tracks, based on information reported by Australian education providers, the enrolment and education achievements of international students in Australia.

    The information from PRISMS is:

    1.        PRISMS show you have enrolled in a significant number of courses during the time spent on student visas in Australia.

    2         PRISMS show that a number of the courses you enrolled in are recorded as being cancelled for reasons of non-commencement of studies.        

    This information is relevant because it shows that you have not started, have cancelled or not completed all courses you have enrolled in. It indicates a lack of academic progress that in the absence of other explanation may not be consistent with you intending to live in Australia temporarily.

    If the Tribunal relies on this information in making its decision, it may lead me to believe that you are not a genuine student, and that you do not meet cl.500.212. If the Tribunal so finds, this information would be a reason, or part of the reason, for me to affirm the decision of the Department in your case and refuse your application for a student visa.

    I invite you to comment on or respond to that information. You do not have to respond or comment now. You may seek additional time to comment on or respond to that information. If you do want additional time, I will consider your request and will grant you a reasonable amount of time to consider the information I have given to you and to consider your response to that information.

    Do you understand this and do you require more time or do you wish to comment?

19. The Tribunal enquired if the applicant understood the information put to her in accordance with s.359AA. The applicant confirmed she understood. The applicant did not seek an adjournment and elected to respond in the hearing. The applicant did not ask for any more time to consider the information presented.

20. The information showed that the applicant originally enrolled and completed a Certificate III in Commercial Cookery which was finished in September 2017. This was followed by a Diploma of Hospitality which was cancelled. The applicant is currently studying a Diploma of Hospitality Management due for completion in January 2019. A Diploma of Hospitality and a Certificate IV in Commercial Cookery were also cancelled. The applicant did not give any real reasons why she had cancelled these courses other than to say that she had been busy here and travelling a lot.

21. In her GTE statement the applicant explained that she wants to work in the restaurant business as a chef or cook. She indicated that she could study for this back at home but loves Australia’s multi cuisine environment. She also indicated she could go to places such as Europe to pursue her goals. This is of concern to the Tribunal because it indicates no real desire to return to Argentina to pursue a hospitality career.

22. The tribunal is concerned that this plan appears hastily cobbled together subsequent to the applicant’s decision to wish to stay in Australia indefinitely after the expiry of her working holiday visa.

23. The applicant also noted in her GTE statement that she may go to Holland after Australia to further her study and/or pursue her cookery career.

24. The applicant stated that she rents in North Melbourne and works in a restaurant in the city at the moment, approximately 15 hours per work. In her GTE statement to the Tribunal dated 9 March 2018 the applicant indicated that she had friends in Australia and a boyfriend who is an Australian citizen. The tribunal is concerned that this constitutes a reason to remain a resident in Australia.

25. She indicated that her father assists in paying for her study.

26. The Tribunal is concerned that the applicant hasn’t chosen Australia as a location to achieve qualifications to return home in order to deploy them in a restaurant but rather as an excuse to remain here for a prolonged period of time.

27. The Tribunal is also concerned that the applicant doesn’t have a credible study plan to finish and then return home. In her GTE statement to the delegate the applicant spoke highly of Australia’s multi cuisine environment as a reason for studying here. However the applicant also indicated that Argentina also provided great opportunities to develop skills in hospitality. She also indicated that places she had been to such as Italy and the UK were also great places that developed her knowledge of hospitality in general.

28. The Tribunal has significant concern that the value of the study now proposed, the Diploma of Hospitality Management, does not lie outside Australia, but in the grant of further student visas for the purpose of continued residence in Australia. The Tribunal has no confidence that the study now proposed will be completed and therefore has no confidence that the applicant will depart Australia.

29. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

    Conclusion on cl.500.212

30. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

31. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Stephen Witts
    Member