DIMITRAKOPOULOS (Migration)

[2019] AATA 1019

DIMITRAKOPOULOS (Migration) [2019] AATA 1019 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vasileios DIMITRAKOPOULOS
Mrs Dafinka Valkova DIMITROVA

CASE NUMBER:  1713648

HOME AFFAIRS REFERENCE(S):           BCC2017/934736

MEMBER:David Barker

DATE:25 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 March 2019 at 4:41pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – value of course to applicant’s future – marketing – human resource management – intention to establish business – enhanced employment opportunities – retirement age in Greece – familial and social ties – economic incentives – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 and Border Protection on 9 June 2017 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 for the visas on 9 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 there was insufficient evidence to demonstrate that the applicant is a genuine temporary entrant.

4. The applicants appeared before the Tribunal on 5 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.

5. The applicants were assisted in relation to the review by their registered migration agent.

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

   BACKGROUND

7. The applicant is a national of Greece and is 59 years old.  The second named visa applicant, his wife, is a national of Bulgaria and is 50 years old.

8. The Department delegate’s decision record, a copy of which was provided with the review application, states the applicant first arrived in Australia in January 2013, as the holder of a TU-570 Student visa and that an Examination of the Provider Registration and International Student Management System (PRISMS) indicated that the applicant has been enrolled in a English for General purposes certificate and Diploma of Marketing courses, and at the time of application was enrolled to undertake a Certificate IV in Human Resources, Diploma of Human Resources Management and an Advanced Diploma of Management (Human Resources).  The latter course is due for completion in November 2019.

9. A more recent copy of the applicant’s PRISMS records were provided to him at the start of the hearing in the interests of procedural fairness.  These records indicate he has finished the Certificate IV in Human Resources and Diploma of Human Resources Management and is studying the Advanced Diploma of Management (Human Resources). This is consistent with the applicant’s claims.

10. In explaining why they determined that the applicant did not meet required genuine temporary entrant criteria, the delegate was not satisfied the applicant had demonstrated how his proposed course will enable him to achieve his career goals, as he provided no substantive information regarding what his actual goals were, beyond declaring a general intention to open a business at some point in the future. The delegate found the applicant has not completed any courses above the ELICOS and Vocational Education and Training sectors and  that he has maintained enrolment in short/inexpensive courses.  The delegate noted the applicant has, since his arrival in Australia, only been offshore for 36 days in total, as his immediate family was with him in Australia.  The delegate was not satisfied that, given the applicant’s age and the retirement age in his home country, the applicant demonstrated he had a strong incentive to return to Greece.

11. In response to an invitation to the applicant from the Tribunal to provide documents or arguments he wished to rely on in his review, the applicant provided documentary evidence including, but not limited to, evidence of his current and past academic studies and a statutory declaration, which relevantly stated:

    1.I am a Greek citizen.

    2.I was born Pyrgos liras in South West of Greece.

    3.My parents are [name provided] and [name provided]. They are both deceased.

    4.I have two siblings, a sister [name provided], she is married and has four children, they all in Athens Greece. A brother [name provided], he is married and has two children, they all live in Athens Greece.

    5.I am married to [name provided], who is a secondary applicant, we have been married for 11 years. It is the second marriage to both of us.

    6.I have two children [name provided] and [name provided]. Evagelia is 24 years old, she is from my first marriage. She lives and works as a shop assistant in Athens Greece. Miroslava is my step daughter, she is 31 years of age, married and has two daughters, they all live Bulgaria.

    7.I completed my primary education in 1971 at the public school of Pyrgos. Followed by secondary education at the Lyceum School of Periseri Athens until 1977.

    8.I started working immediately upon completing school as a re-treader of tyres at the Autosol Tyresol in Athens until August 1980 when I joint the army for compulsory army service.

    9.I completed my Army service in June 1982 and returned to work at Autosol Tyresol in the same position as I previously occupied until the middle of 1985.

    10.In August 1985, I started driving a a taxi in Athens until the end of 1998.

    11.In January 1999 I started working as a welder and carpenter for a construction company in Greece called Technical Company CH Papadimatos-A Tsikas (TCCH). I stayed in this position until April 2005.

    12.From April 2005 until June 2007, I worked as a freelancer in Belgium on various contruction sites before returning to TCCH in Greece and remaining in the same position until December 2012.

    13.In January 2013, I arrived in Australia and enrolled in March 2013 in an English course until 30 August 2015.

    14.On 12 October 2015 I started a certificate IV in marketing which I completed on 23 March 2016.

    15.On 9 May 2016, I started studying for a Diploma in Marketing which was superseded on 31 October 2016 by a course in Human resources.

    16.I began a certificate IV in human resources and completed it on 29 October 2017.

    17.On 20 November 2017 I began studies in a Diploma of Human resources Management which I completed on 28 October 2018.

    18.I am now enrolled in an Advanced diploma of Management (Human Resources) which started on 26 November 2018 and the course will finish on 3 November 2019.

    19.While I am studying in Australia, I have also worked in the building industry as a subcontractor in general maintenance.

    20.My studies in Australia will provide me with a better opportunity of gaining employment in my home country when I return there. The job market in Greece is very competitive due to the recession and the skills I gain in Australia will give me an advantage over other applicants competing for Jobs.

    21.The skills I gained through my study in marketing and human resources have given me additional skills, which combined with my background in the building industry in Greece and the exposure to the industry in Australia, will entice employers to prefer my services over younger, unskilled, inexperienced candidates.

    22.In addition, with my newly acquired skills set I am able to start my own business in general construction maintenance. Whereby the marketing studies would assist me in promoting my business and human resources management will assist me in managing personnel in a diversified industry.

    23.I have lived in Greece for all my life except for two form 2005 to 2007 where I lived and worked in Belgium and from 2013 to current in Australia.

    24.I own a house in Ilion, a suburb of Athen and a holiday house in Pyrgos. I also have a share in my parent's estate which consists of a house in Pyrgos.

    25.I have many family and friend in Greece, in addition to my sister, brother and their families. I have uncles, cousins, friends and acquaintances, over 100 people in total. While in Australia I have only three cousins and their families.

    26.My wife Dafinka has her parents, a brother and his family all living in Bulgeria with my step daughter. This also gives us the opportunity to relocate and work in Bulgeria where the economy is growing with a lot more business and work opportunities.

12. The Tribunal gave the applicant time following the hearing to provide further evidence or arguments in support of his claims, including financial information to support his claims he does not have a financial incentive for maintaining his residency in Australia and on 7 December 2018 the Tribunal received bank statements from the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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 whether the applicant intends genuinely to stay in Australia temporarily.

14. 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?

15. 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.

16. 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.

17. The tribunal is satisfied the applicants have no military service requirements which they need to serve in their home countries. There is also no indication that the applicant has concerns about the political or civil situation in his home country.

18. In relation to the relevance to his past employment or future career opportunities regarding the package of human resources courses the applicant is currently studying, he claims these will assist him gain work in the construction industry which is appropriate for his age, when he returns to Greece, or else be of benefit to him if he starts his own business in general construction maintenance. The Tribunal is not persuaded by this claim. The applicant’s study history indicates that after completing an initial English language course he enrolled in a package of marketing courses on the basis that he required marketing skills to enhance his capacity to open a business in the future.  He has provided evidence he completed a Certificate IV in Marketing in October 2016.  He has also provided a letter from the education provider, Queen Anne English College, which states the Diploma of Marketing which the applicant was then due to undertake was ‘superseded and removed from our college offering’.  It is apparent from the applicant’s student records that the Diploma of Marketing would have been a one-semester course, as this is the duration of the Diploma of Marketing which the applicant was initially enrolled in. The Tribunal is as a consequence satisfied that the applicant would have completed the marketing courses, which were the original rationale for his seeking a student visa, by the end of the first academic semester in 2017 at the latest, namely, in or around June 2017.

19. The letter from Queen Anne English College goes on to state: ‘We consulted the student and offered him the human resources courses, an (sic) field of study that is related to marketing and he has expressed interest in’. This has resulted in the applicant enrolling in courses which will extend his studies in Australia until November 2019, considerably longer than would have been provided by the marketing courses he initially enrolled in.

20. It is not apparent to the Tribunal that there is a clear ‘relatedness’ between marketing courses and human resource management courses.  Taken at face value, a Diploma of Marketing would have consolidated the skills and qualifications the applicant would already have achieved through completing the Certificate IV in Marketing.  Whilst the applicant has not provided the Department with particularly detailed information about the sort of business he intended to establish in his future, he has now indicated it would be general construction maintenance business.  The Tribunal accepts marketing skills could be useful in running this sort of business, but is not persuaded why specific qualifications would be required, given the applicant would be the business owner.  The tribunal is equally not persuaded why human resource management skills, to the level currently being pursued by the applicant,   would be necessary in order for him to establish his own general construction management business.

21. The Tribunal acknowledges it is open to a person to re-evaluate their study options at any stage of their academic studies.  The Tribunal also acknowledges the applicant has indicated he may also seek employment back in the construction industry upon his return to Greece after he has completed his studies in Australia.  He now claims that at his stage of life, qualifications in human resources management will enhance his future employment options.  The Tribunal has placed some weight on this claim.  However, the weight accorded to this claim is mitigated by the following factors. 

22. The applicant is currently 59 years of age and will be approaching 60 years when his current studies are completed.  As has been discussed by the delegate, the retirement age in Greece is 67 years and whilst acknowledging that it is open to the applicant to work up to that retirement age, the Tribunal is not persuaded delaying his return a further 12 months in order to undertake the further Advanced Diploma of Management (Human Resources) outweighs the disadvantage accruing from job seeking at a progressively older age. The applicant has also not demonstrated  that he made any attempt to research the availability of human resource courses in his home country once progression through the initial package of marketing courses was disrupted in 2016. 

23. As to his ties to his home country, the tribunal accepts the applicant has familial ties to both Greece and the home country of his wife, Bulgaria. The tribunal also accepts the applicant  has economic assets in his home country and that when considered cumulatively these ties provide him with an incentive to return to Greece, or the European region, at some stage in the future. The applicant also has relatives in Australia, a cousin in Wollongong and two cousins and their families on the Central Coast of NSW.

24. The applicant gave evidence that he and his wife live in a house nearby to his cousins on the Central Coast of NSW and that they are not charged rent as it is a friend’s holiday house. He said that he was some time ago working with one of his cousins, and that apart from this he has had other casual employment as a subcontractor in the general maintenance construction industry in Australia. I am therefore satisfied that the applicant also has significant familial and social support networks in Australia.

25. The applicant said that his wife has not had any employment in Australia and that she does not have English language skills. The applicant conceded that there is a significant disparity between the Greek and Australian economies, especially since the global financial crisis, during the fallout from which he lost employment in 2012. He denies, however, that he has had an economic incentive for seeking to maintain his residency in Australia and points to improved economic circumstances in his home country and surrounding parts of Europe. The applicant gave evidence that he has current savings of around $12,000 from his employment in Australia.  This is supported by the financial records he provided following the hearing. He said that whilst he has been here he has periodically remitted funds to his children in Europe.  The applicant has supplied evidence of the taxable income he has declared to the Australian Taxation office, which was $29,437 in the 2015 income year, $30,564 in 2016 and $30,564 in 2017.  Whilst these are relatively modest amounts, given the applicant has no accommodation expenses, I am not satisfied that when considered with other factors, such as his loss of employment in the context of the fallout of the global financial crisis in Europe, that the applicant has not had and does not continue to have an economic incentive for maintaining his residency in Australia. I am not satisfied the evidence is sufficient to establish that the applicant has genuinely undertaken courses that are likely to significantly improve his future career opportunities.

26. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction No.69, as detailed above, the Tribunal is not satisfied, having regard to the evidence advanced and considered cumulatively above, that the applicant intends genuinely to stay in Australia temporarily.

27. 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.

    The second named visa applicant

1. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the second named visa 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.500.212.

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

   DECISION

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

   David Barker
   Member