Corraya (Migration)

[2018] AATA 595

Corraya (Migration) [2018] AATA 595 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jone Dominic Corraya

CASE NUMBER:  1617629

DIBP REFERENCE(S):  BCC2016/799294

MEMBER:Mara Moustafine

DATE:2 March 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 March 2018 at 4:57pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether applicant has a genuine intention to stay in Australia temporarily – Multiple short term vocational courses undertaken – Lack of academic progression – Applicant currently nominated for a separate temporary visa

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 2, cl 572.223(1)(a)

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 first arrived in Australia on 7 March 2010 on a TU subclass 573 Student visa and was subsequently granted a TU 572 Student visa which was valid until 15 March 2016. He applied to the Department of Immigration for another TU 572 Student visa on 26 February 2016 to undertake a Diploma of Leadership and Management. The delegate decided to refuse to grant the visa on 17 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. 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 intended genuinely to stay temporarily in Australia. Among other things, the delegate was concerned about the applicant’s immigration and study history, noting that he had arrived in Australia on 7 March 2010 on a TU 573 Student Visa to undertake Higher Education studies but never commenced either of the two Bachelor courses in which he was enrolled. Instead he had studied a series of short courses, including English, Diploma and Advanced Diploma of Engineering; Certificates III and IV in Commercial Cookery and Diploma of Hospitality. Further, he had not provided evidence of any employment ties, assets or business ties or social ties to Bangladesh which would provide incentive for him to return to home; and had only spent 20 days outside Australia since his arrival. The delegate was concerned that the applicant was circumventing the Student visa program to maintain an ongoing residency in Australia.

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

6. The applicant appeared before the Tribunal on 15 November 2017 to give evidence and present arguments. 

7. Ahead of the hearing, the applicant’s migration agent emailed to the Tribunal a submission and documents in support of his claims, including Confirmations of Enrolment (COEs) for a Diploma of Leadership and Management (23 May 2016 to 17 November 2017) and an Advanced Diploma of Leadership and Management (8 January 2018 to 5 July 2019), created on 26 October 2017;  a confirmation of enrolment status and course progress tracking record for the Diploma of Leadership and Management at Stanley College date 31 October 2017; a completion certificate and academic transcripts for Certificate III in Commercial Cookery; and reference letters from various employers in the hospitality industry, including the applicant’s current employer, for whom he had been working for the past 2 years.

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 his 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 his circumstances in Bangladesh and Australia, his immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.

14. The applicant told the Tribunal that he originally came to Australia in March 2010 to study a Bachelor of Information Technology (IT) and later switched to a Bachelor of Engineering under the influence of his mother, who wanted him to do something different to his father, who was a chef. However he failed the IT course and only completed an Advanced Diploma of Engineering because he found mathematics and physics difficult. He then undertook courses in hospitality, an area in which he had worked and studied previously in Bangladesh, where he completed a Certificate course in Food and Beverage production.

15. The applicant told the Tribunal that in the seven years since he arrived in Australia, he had completed General English, Foundation Studies in IT, an Advanced Diploma of Mechanical Engineering and a Diploma Hospitality. He was currently studying a Diploma of Leadership and Management, which he was due to complete in November 2017. In addition to the documents provided directly, the Tribunal has sighted on the Department file copies of the applicant’s completion certificates and academic transcripts for the Foundation Studies program in IT, Diploma and Advanced Diploma of Engineering, Certificates III and IV in Commercial Cookery. While it accepts that the applicant has completed most of his courses, like the Department, the Tribunal is concerned that he has studied diverse short courses at the Vocational Education and Training level, not progressed to the Tertiary level for which his original Student visa was granted; and that the majority of these courses were unrelated to his stated career intention of working in hospitality. This suggested that he was using his Student visa to prolong his stay in Australia.

16. The Tribunal is dubious as to the applicant’s career intentions on completion of his current studies. While he told the Tribunal that, after finishing his Leadership and Management courses, he would return to Bangladesh to run his own restaurant business, he confirmed that he did not have a concrete business plan or job offer; only that his father, who had worked as a chef in various Middle Eastern countries, was researching a location for the business, in which he would collaborate with the applicant.

17. By contrast, the applicant provided evidence that he had been employed in various roles in the hospitality industry during his time in Australia, most recently for about two years as a chef at a waterfront bar, earning around $400 per week.

18. The Tribunal’s reservations about the applicant’s intention to stay in Australia temporarily as a student are compounded by the fact that, according to Department records, his nomination for a Temporary Work (Skilled) visa submitted by Perth Waterfront on 4 April 2017 was approved on 24 July 2017. The Tribunal raised this information with the applicant in accordance with s.359AA of the Act. The applicant responded that he had been nominated by his current employer to work as a cook for 2 years before returning home and that this would help him gain experience as a cook and in running his own business and managing staff back home.

19. The Tribunal does not question the benefits the applicant describes and accepts his agent’s submission that there is no legislative requirement for the applicant to return home after his studies, should he be eligible to apply for a further visa. However, as discussed with the applicant the Tribunal is not satisfied that being nominated for a Skilled work visa is consistent with a genuine intention to stay in Australia temporarily as a student.

20. The Tribunal accepts that the applicant has family ties to Bangladesh, where his parents and siblings live, and has no family in Australia. However, it is not satisfied that in themselves these constitute a strong incentive to return home. The applicant told the Tribunal that, since his arrival in Australia he has departed only once – to attend his sister’s engagement. In the face of expensive airfares to Bangladesh, the applicant stated that he found almost daily communication with his family over skype and social media quite effective.

21. 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).

22. 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

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

    Mara Moustafine
    Member