DURAN (Migration)

[2018] AATA 804

DURAN (Migration) [2018] AATA 804 (19 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss AYSENUR DURAN

CASE NUMBER:  1700356

DIBP REFERENCE(S):  BCC2016/2970902

MEMBER:Wendy Banfield

DATE:19 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 19 March 2018 at 7:47pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Student visa was due to expire – Applied for a further student visa – Completed her course on time – Working in Australia – Submitted to the Tribunal a Conditional offer of Enrolment in another course – Use of student visa program to extend stay in Australia

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994 Schedule 2 cls 500.211, 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 20 December 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 7 September 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.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because her enrolment in a course of study had been cancelled at the time of decision.

   Background

4. The applicant is a citizen of Turkey and is currently 30 years old. She came to Australia on 24 November 2013 to study a Master of Business. The applicant had completed a Bachelor degree in 2007 in her own country and worked in customer service prior to coming to Australia.

5. The applicant studied English when she arrived in Australia followed by a Master’s degree. According to the applicant’s evidence, her English studies took longer than expected which in turn affected the completion of her Masters. The applicant’s student visa was due to expire before she graduated and she therefore applied for an additional visa. Prior to a decision being made in her case, the applicant completed her course and was no longer enrolled to study. As a result, her student visa was refused.

6. The applicant appeared before the Tribunal on 5 March 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 meets the criteria of a genuine temporary entrant for study.

9. 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?

10. 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.

11. 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.

12. The applicant gave evidence about the circumstances that led to her having to apply for a further student visa. She explained that her preliminary English course took an extra term to complete which meant she had to begin her Masters course at a later date. As a result her student visa was due to expire five weeks prior to graduation. The applicant said she was advised by the Department that even though it was a short period, she would need to reapply for a student visa. However, by the time a decision was made in her case, she had completed the course and was no longer enrolled. She therefore did not meet the criteria for the grant of a student visa.

13. In her evidence, the applicant said she had wanted to apply for a Subclass 485 visa to gain work experience following her studies. In a written statement dated 5 February 2017 provided in support of priority processing, the applicant said she had been working for Priceline Pharmacies since December 2014 and the company wanted to offer her full-time employment. As at the date of the statement, the applicant had three months left to apply for an on-shore visa.

14. At the Tribunal hearing, the applicant confirmed she was not enrolled in a course of study. The Tribunal took into account the applicant’s circumstances which are unfortunate, however, it is a requirement that an applicant be enrolled in a course of study to be eligible for the grant of a student visa. The applicant was advised she could withdraw the application for review if she chose and if not, the decision of the Department would be affirmed. The Tribunal granted the applicant time after the hearing to seek advice and decide what she wanted to do regarding withdrawal of the application.

15. On 17 March 2018 the applicant submitted a COE for enrolment in a Diploma of Leadership and Management. The course is due to commence on 6 April 2018 and be completed on 13 June 2019. In her submission the applicant said she had decided to do more study and had chosen the Diploma course to improve herself and her skills.

16. The Tribunal has considered the applicant’s circumstances and the evidence provided during the hearing and afterwards. While the Tribunal accepts the applicant is now enrolled to study and therefore satisfies cl.500.211 of the Migration Regulations, it appears the enrolment has been obtained so that the applicant can stay in Australia rather than for genuine study purposes. The applicant has already completed the Masters course that she came to Australia to study. According to her evidence, while waiting for the outcome of her student visa application, she decided to apply for a Subclass 485 visa but was too late to do so because of the student visa process. This indicates the applicant is no longer interested in studying but does not want to depart Australia.

17. The Tribunal is not satisfied that studying a lower level Diploma course after obtaining a Master’s degree, and already having a great deal of work experience, will be of benefit to the applicant in future. While the Tribunal notes the unfortunate circumstances the applicant found herself in due to the timing of her English studies and the end of her Masters, the grant of a student visa must be for the purpose of genuine study and not to provide a platform from which to apply for another type of visa.

18. 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).

19. 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.

20. 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

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

    Wendy Banfield
    Member