DODANI (Migration)

[2018] AATA 59

DODANI (Migration) [2018] AATA 59 (18 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  DRITAN DODANI

CASE NUMBER:  1609630

DIBP REFERENCE:  BCC2015/1331189

MEMBER:Lilly Mojsin

DATE:18 January 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 18 January 2018 at 11:16am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Non genuine temporary entrant – Gap in study periods – Applicant was depressed – Family in Italy – Studying in English advantageous to applicant’s career path – No sound reasons for not studying hospitality courses in Italy

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994 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 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 applied to the Department of Immigration for the visa on 8 May 2015 in order to study a Diploma of Tourism and Hospitality.

3. The delegate refused to grant the visa on because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant is a genuine applicant for entry and stay as a student.

4. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the application for review.

5. The applicant appeared before the Tribunal on 6 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. On 29 November 2017 the applicant provided evidence that the applicant is the subject of a current offer of enrolment in General English followed by Certificate IV in Hospitality, Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management at AHTS College in Adelaide.

9. A submission from the applicant’s advisor opines that there is no political or civil unrest in Italy as stated by the delegate, that when the applicant received a letter from the Tribunal he went back to the school where he had previously studied to obtain an offer of enrolment and the school wanted him to study English before continuing hospitality studies, thirdly the applicant has not broken any migration laws and fourthly the applicant has a job offer in Italy once he graduates in Australia. Further, when his visa was refused the school told him not to come back until his visa issues had been resolved.

10. At the Tribunal hearing the applicant said that he came to Australia to study English, he did not complete his studies because he had a few difficulties when he was studying Tourism and Hospitality. He completed 2 certificates and when he went to reregister, 2 weeks ago, he was told he needed to study some more courses, then he enrolled in Tourism and Hospitality.  In May 2015 he studied an Advanced Diploma of Hospitality and Tourism and in November 2016 he stopped studying that course without completing it because he became quite depressed and was waiting for the visa.

11. He is married and has 2 children, 14 and 5.  His wife works for 3 families doing domestic duties and she irons.

12. He does not work now. He worked all his life and he has some money in the bank, in Australia. His parents also supported him for 3 years. He has no family in Australia. He has $37 000 in Australia and in Italy he has 2 bank accounts, one with his wife of Euro15 000 and one in his own name of Euro 10 000.

13. Asked what work he was doing when he was in Italy, he said that he has done many jobs. He was working in a restaurant and depending on what was needed, he was also making pizzas.  He came to Australia in November 2014. Asked if he has not been working since arrival in Australia in 2014, he said that when he arrived in Sydney he worked for 4 hours per day whilst studying. He worked valet parking at the airport and washing the cars. He studied 6 months in Sydney but he only worked for 4 months.

14. Asked why he left Sydney for Adelaide, he said that he wanted to study Hospitality and Tourism and the only school available was in Adelaide. When he came to Australia he brought about $10 000 but he could access money overseas from an account. He said that his wife and children came to visit him in Australia.

15. The Tribunal put that it wrote to him on 14 November 2017 asking him to provide a Confirmation of Enrolment/Offer of Enrolment. His Offer of Enrolment is dated 29 November 2017, and for the last 12 months he has made no attempt to study any course. He said that he did not do anything as he had difficulty as he was waiting for the visa. Put that he was already waiting for visa when he started his previous hospitality course. He said that time went by but as he was depressed his family came and brought money.

16. Asked why he cannot study the same course in Italy, he said that his main interest was to learn to speak English. He paid for a course and it did not give him an advantage, he will study until 2020.  If he can finish earlier he would like to come back.

17. In regard to a career path he said that when he returns to Italy he is hoping to be self-employed and be able to open a restaurant or bar to support his family.

18. The Tribunal expressed its difficulty with his claims that his wife was working in domestic chores in Italy whilst he was in Australia living off their savings and not studying. He said he understands. When put that in doing so he is extending his stay in Australia, he said that he believes that being the father of a family he should not absent himself so long but when the visa was not issued, it extended his time.

19. Asked how his studies will assist him, he said that there is a lot of investment and tourism in Italy. Asked which subjects in his intended course will assist him to open his restaurant and bar, he said that it all depends.  Asked if he knew what subjects he will study, he said that there are various subjects there is management of a business, how to treat customers and personnel and how to have a liquor license. It was put that he can study those subjects in Italy. He said that he is more interested in learning English. He feels when you study these subjects in English you have an advantage, it is the English path that is of interest.

20. The advisor put that some people take longer than usual to learn a subject. Federal government is promoting studies in Australia and that applicant has chosen to study in Australia and if he has financial capability, he should be able to do so. The applicant had a breakdown when the visa was refused and he had therapy by his family visiting twice. The applicant has his own savings and he wants to study a hospitality course and has no intention to stay in Australia.

    REASONS AND FINDINGS

21. The issue in the present application is whether the applicant meets the time of decision criterion in cl.572.223.

22. 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)     …

23. 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;

    ·….; 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.

24. 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.

25. The Tribunal accepts that studying English in Australia is advantageous to the applicant’s intended career of owning a restaurant/bar. The Tribunal also accepts that the applicant has an incentive to return to Italy because the applicant is married and has 2 minor children who live there.  His wife works for 3 families doing domestic duties and irons. His wife and family have visited him twice since his arrival in Australia. The applicant does not have an adverse migration history.

26. The applicant claims that he does not work in Australia. He worked for a short time when he first came to Australia in a car wash but has not worked since he moved to Adelaide. He has some money in the bank in Australia and his parents also supported him for 3 years. He has no family in Australia. He claims that he has $37 000 in Australia and he has 2 bank accounts in Italy, a joint account with his wife of Euro15 000 and an account in his own name of 10 000 euro.  In Italy the applicant worked in various jobs.

27. There are no military service commitments that would present as a significant incentive for the applicant not to return to Italy.  There is no political or civil unrest in his country.

28. The applicant states that he intends to return to his home country at the completion of his studies.

29. The Tribunal places greater weight on  the following:

    ·The applicant arrived in Australia as the holder of a student visa in November 2014, to study English. He completed 2 certificates. The applicant in May 2015 commenced studying an Advanced Diploma of Hospitality and Tourism. In November 2016 he stopped studying without completing the course. Whilst his advisor claims his reason for ceasing studies was that he had a breakdown and he claims he became quite depressed because he was waiting for the visa, his advisor opined that the visits of his wife and children on 2 occasions were the therapy needed for his medical condition. The applicant does not suggest that he received any medical treatment for his condition.

    ·The applicant has not provided any sound reasons for not studying in Italy. He said that his main interest was to learn to speak English. When asked about the subjects he would be studying he said that there are various subjects, there is management of business, how to treat customers and personnel and how to have a liquor license. He agreed that he could study those subjects in Italy. Whilst he claims that he is more interested in learning English as it will give him an advantage the applicant’s evidence in relation to his future career was vague and generalised. He claims his career path when he returns to Italy is to be self-employed and to open a restaurant or bar to support his family.  Asked which subjects in his intended courses will assist him to open his restaurant and bar, he said that “it all depends”.

    ·The applicant waited a year before enrolling in a course of study and only after he had received correspondence from the Tribunal asking him to provide a copy of his Confirmation of Enrolment or an Offer of Enrolment. His explanation was that he was waiting for the visa and he was depressed. His advisor states that the school told him not to come back until he sorted out his visa. I do not accept that waiting for the visa, prevents an applicant from studying. The applicant was the holder of a bridging visa. Further the applicant does not suggest that he needed or received any medical treatment for his depression. Further, at the time when he commenced the previous Tourism and Hospitality course he was waiting for the visa and was on a bridging visa. He studied for over a year without completing the course.

    ·When put to the applicant that the Tribunal had difficulty accepting that the applicant, a married family man with 2 minor children would live in Australia without working and without studying, and he was living off the family savings whilst his wife worked as a domestic in Italy, he responded that he understands. He provided no other explanation. The Tribunal does not accept his explanation and is not satisfied the applicant has been truthful about his circumstances in Australia.

30. On balance the Tribunal is satisfied that the applicant has applied for a Student visa primarily for maintaining ongoing residence in Australia,

31. 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).

32. 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

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

    Lilly Mojsin
    Member