Devi (Migration)

[2017] AATA 3148

Devi (Migration) [2017] AATA 3148 (29 August 2017)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Reena Devi

Mr Yashpal Yashpal

CASE NUMBER:  1605157

DIBP REFERENCE(S):  BCC2016/697433

MEMBER:  Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          29 August 2017 at 3:02 pm (VIC time)

DATE OF WRITTEN RECORD:               14 October 2017

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decisions under review.

Statement made on 14 October 2017 at 2:17pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the applicant is a genuine temporary entrant – Studies undertaken at a significantly lower level than initially declared – Limited value of further studies – Strong incentive to remain in Australia – Limited incentives to return home – Limited knowledge of courses currently enrolled in – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, 572.223

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 1 April 2016 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 573 visas under the Migration Act 1958 (the Act).

1. At the hearing on 24 August 2017 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. To be eligible for the grant of a student visa, applicants must be both genuine temporary entrants and genuine students.

1. To be a genuine temporary entrant your circumstances must support a genuine intention to remain in Australia temporarily

1. You applied for a student visa on 18 February 2016 and your application was refused on 1 April 2016 because having considered your circumstances, the delegate found you were not a genuine temporary entrant but were using the student visa programme to maintain residence in Australia.

1. You appealed the decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.

1. As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant, it is necessary to have regard to what is known as Ministerial Direction No. 53 and the issues in that direction. They were detailed in the primary decision and they include:

   ·     Your circumstances

   ·     The value of your course/s to your future

   ·     Your Immigration history

   ·     Your incentive to stay in Australia or return home

   ·     If you are using the student visa programme to maintain ongoing residence in Australia

   ·     Any other relevant matters

1. This is not meant as a checklist but as a guide to weigh up an applicant’s circumstances as a whole, in reaching a finding about whether an applicant satisfies the genuine temporary entrant criterion.

1. The role of the Tribunal is to take a fresh look at your application, consider your circumstances and the issues in Direction No.53 and be satisfied you are a genuine student who genuinely intends to stay in Australia temporarily.

1. You told the Tribunal you had read and understood the primary decision which was discussed in detail.

1. The primary decision and its detailed references to the issues of Direction No 53 put your notice of the issues in your case.

1. When we sent you the hearing invitation we advised we would assess whether you met the genuine temporary entrant requirements again putting you on notice of the issues we would

consider and asked you to provide a statement addressing those issues in Direction No. 53 and we provided a copy of that direction.

1. You did not respond to this request and did not provide a statement however today you have responded to a number of questions relevant to the direction and you referred the Tribunal to an earlier statement you had made about you being a genuine temporary entrant which addressed some of the issues.

1. You provided evidence you are currently enrolled and studying a Diploma of Leadership and Management scheduled to run until 22 July 2018 and you said should you be granted a visa, following that course you would study a Bachelor of Business for which you provided a CoE from Cambridge International College scheduled to run August 2018 to July 2020. So you are seeking to remain in Australia for at least another three years.

1. We asked you to provide evidence of your past studies. You provided evidence of having completed a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and a Diploma of Hospitality.

1. You came to Australia as a 27-year-old having completed both a Bachelor of Arts and a Master of Arts after five years of study in India and you came here to study a Master of Management at Curtin University.

1. It was a pre requisite that you complete a preparatory English course which you initially failed however after completing the English course you say Curtin advised that the Master of Management was no longer available but they offered you a place in a Master of Commerce which you started in February 2015. You studied four units in that course but failed all four units.

1. So you came here to study at a Masters level but have only completed courses at the Vocational Education and Training sector level, at which level you still study, and you say you are undertaking current studies as they will give you credits towards a Bachelor of Business.

1. When the Tribunal asked about your future plans you say you would like to get a job in the Tourism or Hospitality sector as a Manager or as a Chef.

1. You told the Tribunal you have been working in Australia in a cafe making burgers and fish and chips. When asked how your proposed studies provide value to your future, you say there are more job opportunities for hospitality graduates from Australia. The Tribunal accepts this may well be the case and notes you have completed a Certificate III and a Certificate IV in Hospitality. You are now studying Leadership and Management and say you intend to go on and study a Bachelor of Business. It seems you have done all of studies you intend doing in hospitality and therefore have all the qualifications required to get your desired job. The Tribunal does not believe your proposed studies add any value to your future plans or improve your employment prospects.

1. The fact that you say your plan is to be a Manager or a Chef leads the Tribunal to find you do not have a real considered plan for your studies which are not based on an academic plan leading to a career.

1. When asked why you don’t do the studies at home, you provide no satisfactory answer simply saying that Australian qualifications are better, and you wish to get practical experience in Australia. The Tribunal believes that there would be plenty of opportunities to get practical experience in India should you choose to return and it would be far cheaper to study your proposed courses back in India at recognised universities.

1. You have a seven-year-old daughter at home which no doubt provides some incentive to return however you appear settled in Australia. You have been here for well over 3½ years, have a history of work in Australia and you say your husband has a job working in air- conditioning which he has done for the last couple of years, and you want to stay for another three years. This means your daughter will be more than 10 when you finish your studies. It seems that while you say it is your intention to return home, your words and your actions are to be different.

1. The Tribunal believes your current circumstances present as a strong incentive for you to remain in Australia and does not believe you have provided evidence of any incentive to return which outweighs the issues we have discussed and your immigration history

1. When I enquire about your proposed studies of a Bachelor of Business and ask about the subjects you would do in that course, you are unaware of the contents of the course and say you have not researched it yet. The Tribunal does not believe it is reasonable that someone who chooses to stay in Australia to do a 3-year Bachelor of Business who already has completed a Bachelor of Arts, a Master of Arts, a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, a Diploma of Hospitality, and an Advanced Diploma of Leadership and Management would not have done research to know what the course entails. The fact you do not know the contents of the course leads the Tribunal to find your motivation in enrolling in a three year course is to maintain residence in Australia rather than a genuine desire to follow an academic pathway.

1. Having considered your circumstances as a whole, including the issues in Direction No 53, I am not satisfied you are a genuine student who intends to stay temporarily in Australia. Therefore I find you do not meet clause 573.223(1)(a).

1. It is therefore the decision of this Tribunal to affirm the decision under review.

1. As your husband’s application is as a dependent on your application and he has no application in his own right means the decision to affirm your decision it also applies to your husband.

DECISION

1. The Tribunal affirms the decisions under review.

Tim Connellan Member