GKENOU (Migration)

[2019] AATA 1006

GKENOU (Migration) [2019] AATA 1006 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs FOTEINI GKENOU

CASE NUMBER:  1609415

DIBP REFERENCE(S):  BCC2016/1429237

MEMBER:Michael Ison

DATE:26 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 March 2019 at 5:39pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – genuine temporary entrant – immigration history – preparedness to circumvent the intentions of Australia’s migration program – two adult children in Australia – value of course to applicant’s future – change of career plans – offer of employment in Greece – plan to start a business in tourism – lacking detail and specificity – decision under review affirmed

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

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 is Ms Foteini Gkenou, a 49 year old Greek national who also appears to be known as and use the name Ms Fotini Gkenou.

3. The applicant applied to the Department of Immigration for the visa on 12 April 2016. The delegate decided to refuse to grant the visa on 14 June 2016. 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. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.570.223(1)(a) of Schedule 2 to the Regulations because the delegate found the applicant did not demonstrate her study in Australia will assist her to obtain employment or improve her employment prospects in Greece, did not provide convincing reasons for studying in Australia and did not demonstrate she has significant incentive to return to Greece.

5. The applicant appeared before the Tribunal on 29 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter Ms Eleni Tsakouridou and Mr Andrea Hadjiantoni. The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.

6. The applicant was represented in relation to the review by her lawyer and registered migration agent. The representative attended the Tribunal hearing.

7. On 9 November 2018 the Tribunal obtained updated reports from the Department’s Provider Registration and International Student Management System (PRISMS) database and Movement records.

8. On 13 December 2018 the Tribunal wrote to the applicant inviting her to update the Tribunal on her circumstances since the Tribunal’s hearing in accordance with the procedure set out in s.359(2) of the Act. The Tribunal’s letter included a copy of the applicant’s updated PRISMS report and Movement record. The Tribunal’s letter noted that the Tribunal did not consider the information in the applicant’s updated PRISMS report and Movement record to be potentially adverse to her application because they showed no more than she had continued to study in accordance with the plan she explained during the Tribunal’s hearing.

9. On 27 December 2018 the applicant, through her representative, responded to the Tribunal’s letter providing a certificate of completion for a Certificate III in Commercial Cookery and confirming the applicant’s ongoing enrolment in a Certificate IV in Commercial Cookery, Diploma of Hospitality Management and Advanced Diploma of Hospitality Management. The applicant’s response indicated she had applied for a Bridging B visa and requested further time to provide an academic transcript of the applicant’s progress in her Certificate IV.

10. On 7 January 2019 the Tribunal wrote to the applicant to confirm it granted her an extension of time to 22 January 2019 to complete her response to the Tribunal’s letter, including asking the applicant to provide her reasons for recent applying for a Bridging B visa.

11. On 7 January 2019 the applicant, through her registered migration agent, responded to the Tribunal by electronic mail that they were still waiting for the academic transcript and explained that the applicant applied for a Bridging B visa because she:

    … was planning to visit her father due due (sic) to a serious health issue of his. We have been instructed that the Applicant did not travel eventually in her home country because her father’s health issue was addressed. (sic) [1]

    [1] Tribunal file, folio 75.

12. On 19 February 2019 the Tribunal invited the applicant to a second hearing to be held on 7 March 2019.

13. On 6 March 2019 the Tribunal received an email from the applicant’s representative advising the applicant is currently overseas and unable to attend the hearing and that the representative has no further instructions. A Tribunal officer rang the representative that same day and requested the representative to seek instructions whether the applicant could participate in a telephone hearing and when she would be returning to Australia. The representative told the Tribunal officer they would seek instructions.

14. The applicant did not attend the Tribunal hearing scheduled for 7 March 2019.

15. On 18 March 2019 a Tribunal officer telephoned the representative and left a message for them to return the Tribunal’s call.

16. At the date of this decision no further information has been received from or on behalf of the applicant.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. Having regard to the applicant’s current proposed course of study, a Certificate IV in Commercial Cookery, the relevant subclass in this case is Subclass 572 Vocational Education and Training Sector.

19. 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)…

20. 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.

21. 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.

22. The applicant arrived in Australia on 20 January 2016 on a Tourist (Subclass 601) visa that was valid until 20 April 2016. On 12 April 2016 the applicant applied for a Student (Subclass 570 Independent ELICOS sector) visa to study a Certificate I, II, III and IV in EAL (English as an Additional Language).

23. The applicant’s evidence to the Tribunal is that she has had a long career as a hair stylist in Greece and her sister and parents remain in Greece, including her father who has dementia. The applicant told the Tribunal while her father’s dementia is “at a calm stage” and he is supported by the applicant’s mother she needs to return to Greece to care for her parents and to pursue job opportunities she has in Greece, as explained below.

24. The Tribunal shared the applicant’s movement records with her in accordance with the procedure required by s.359AA of the Act. The Tribunal informed the applicant that her movement records showed she had not returned to Greece since arriving in Australia which is relevant to her review because it could lead the Tribunal to the view that the applicant is in Australia to maintain residence rather than study. The Tribunal explained to the applicant the consequences of the Tribunal relying on this information could be that the Tribunal finds the applicant is not a genuine applicant for temporary entry and stay in Australia as a student which would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review.

25. The Tribunal offered the applicant additional time to consider this information before commenting upon or responding to the information. The applicant did not request additional time before responding to the information in her movement records.

26. The applicant told the Tribunal she initially arrived in Australia as the holder of a Tourist visa with her daughter Ms Tsakouridou, to visit her son Savvas, who was already studying in Australia as the holder of a Student visa. Whilst in Australia she met, through her son, Mr Hadjiantoni who agreed to support her to study in Australia. She told the Tribunal that she and Ms Tsakouridou genuinely came to Australia for holidays but then when her family were all in Australia they had a family discussion about the applicant and Ms Tsakouridou studying in Australia. They both decided to continue in Australia so they could acquire qualifications that would assist them to find better employment in Greece, which meant the applicant and her daughter did not return to Greece as planned as they wanted to start and finish their studies as soon as possible.

27. The applicant told the Tribunal that at the time of the Tribunal’s hearing she had not had the financial means to return to Greece to visit her parents or sister since arriving in Australia. The Tribunal accepts this evidence and does not make any adverse findings against the applicant arising from her failure to return to Greece since arriving in Australia just over three years ago.

28. In a statement titled “GTE statement” dated 6 June 2016, the applicant stated in support of her application to the Department for a Student visa:

    I have been a hair stylist for most of my professional life. I live in the second largest city of Greece, in Thessaloniki and I have worked in popular busy salons for the past fifteen years. As recession hit and cash flow has been reduced from the Greek clients, I have looked at other possibilities of continuing my profession by being more involved in the tourism industry. Only an hour drive from Thessaloniki is the area of Chalkidiki, one of the most touristic regions of the country which thrives from tourists for more than six months a year. Many of the hotels and resorts in the region are part of international hotel chains and most of the times the management is not from Greece. In the past year, I have approached three of the five star hotels of the area about work prospects and all three were interested in me running their hair salons and beauty centres but on the condition that I spoke English at a satisfactory level.

    Learning English is mandatory for me at this stage in my career and that is the main reason I came to Australia for a while in order to learn English quickly in an English speaking country now that I had this opportunity. I have chosen St Peter’s institution because it has a good reputation for quality courses and good teachers and I know a few people who are studying there and are very satisfied.

    In Greece and in Thessaloniki specifically there are schools where you can learn English and I enrolled before I left for Australia. But after one month I felt that I was not making any progress as I wasn’t forced to speak any English outside the class and my development would be very slow. For my job prospects in luxury resorts in Chalkidiki, I need to progress quickly and the only way to do that was to study in an English speaking country. I have already improved a lot since I arrived and I am very hopeful for my academic and career developments by the end of my course and upon my return to Greece.

    In Thessaloniki I live in the same building with my parents. My father is gradually suffering from dementia and I need to look after him which is why I can’t be away from Greece for too long. My career plans at the moment are to be employed in a resort in Chalkidiki as a salon manager (from where I already had verbal proposals) and to be able to live with my parents and take care of them, at my house, in Thessaloniki. I have two grown-up children who study here at the moment and I am staying with them in Oakleigh.[2]

    [2] Department file, folio 26.

29. The applicant told the Tribunal she shares a house with her parents in Greece and they take care of all bills and therefore she did not need to return to Greece when she decided to study in Australia. The Tribunal accepts this evidence and finds the applicant has a comfortable standard of living compared to others in Greece.

30. The applicant also explained that even though both of her children are in Australia that they are both on temporary Student visas and intend to return to Greece when they complete their studies. The applicant told the Tribunal her son is studying refrigeration at Holmesglen Institute as he was already working in refrigeration in Greece and has a job waiting for him in Greece with a very good refrigeration company when his course finishes and visa expires in March 2018.

31. The applicants’ daughter, Ms Tsakouridou, told the Tribunal she intends to return to Greece to work as an employee or volunteer social worker when she completes her study in Australia. Ms Tsakouridou, at the time of the Tribunal’s hearing, was studying a Certificate IV in Community Services and provided the Tribunal with a copy of her confirmation of enrolment.[3] Ms Tsakouridou told the Tribunal the Certificate IV was the only qualification she needed to pursue her plans back in Greece which means if she completed the Certificate on time she would be returning to Greece at the end of 2018. Ms Tsakouridou also told the Tribunal she is currently living in Oakleigh where she rents accommodation and works at a cafe on a part-time basis.

    [3] Tribunal file, folio 54.

32. Ms Tsakouridou gave evidence that at the time of the Tribunal’s hearing she had been in Australia for almost two years, having arrived in Australia at “a similar time” to when her mother arrived. This evidence created the impression for the Tribunal that Ms Tsakouridou and the applicant arrived in Australia separately, which is not the evidence of the applicant. Nothing material turns on this apparent inconsistency in the evidence of the applicant, which the Tribunal accepts, and the evidence of Ms Tsakouridou on this point.

33. The Tribunal does not accept the applicant’s evidence she came to Australia for a holiday and only decided to pursue study after arriving in Australia. It is apparent from the applicant’s GTE statement from June 2016, quoted above, that there was an element of pre-planning in the applicant’s decision to study in Australia, reflected in her cancellation of her English studies in Greece before coming to Australia on the basis that at that time she felt she needed to study English in an English speaking country.

34. The Tribunal finds the applicant came to Australia with an intention to study and in obtaining a Tourist visa on the basis she intended to only holiday in Australia did not make full and proper disclosure to the Department of her true intentions.  This evidences a preparedness behalf of the applicant to circumvent the intentions of Australia’s migration program by arriving in Australia on a Tourist visa with intent to study. This in turn causes the Tribunal concern that the applicant has not come to Australia as a genuine temporary entrant to study but is using the Student visa program to maintain residency in Australia as the applicant has shown a preparedness to tell immigration authorities what she believes she needs to tell them to obtain the immigration outcome she seeks rather than telling the truth.

35. The Tribunal accepts the applicant believes she had genuine reasons for studying in Australia rather than in Greece.

36. The applicant’s representative submitted in a written submission to the Tribunal dated the day of the Tribunal hearing that:

    (22) The Value of the course to the applicant’s future is significant given the nature of the course and the prospect of the applicant to find employment within the area of tourism in Greece.

    (23) The Applicant submits that Greece is well known for its tourism industry. Recent statistics show significant increase of Greece’s tourism performance.[4] (sic)  

    [4] Tribunal file, folios 43 to 53 (including five attachments) at folio 49.

37. The applicant provided a report from the SETE Institute in Greece showing improvement in significant economic indicators for Greece’s tourism industry for the year ending in December 2017. While it has been widely reported in the popular media that the Greek economy has performed poorly with a falling gross domestic product and high (above 20%) unemployment in recent years the Tribunal accepts that the tourist areas of Greece have been more insulated from these factors and there continues to be strong employment and business opportunities in those tourist locations of Greece.

38. The Tribunal remains concerned about the applicant’s evidence of the economic situation in Greece and its impact upon her and whether this provides economic incentive for the applicant not to return to Greece. However, the only information before the Tribunal is that the applicant is not working in Australia which indicates to the Tribunal if there is some economic incentive for the applicant to remain in Australia, if she is not working it is not a significant incentive.

39. There is no information before the Tribunal of the applicant having military service commitments or being affected by political or civil unrest in Greece that would act as a significant incentive not to return home.

40. The applicant told the Tribunal that she is not living with her children in Australia, both of whom live in Melbourne. The applicant told the Tribunal that she lives with Mr Hadjiantoni and he provides for her accommodation, food and assistance with her course fees, such that he pays for “everything” and she relies almost totally on Mr Hadjiantoni for financial support.

1. The applicant says she has not worked during her time in Australia and is not a member of any groups, clubs or associations and has a very limited social life, preferring instead to devote her time to her studies. The applicant gave evidence she is religious and worships regularly by going to church, most recently in Oakleigh and prior to that in Albert Park. She told the Tribunal she knows very few people in Australia and does not have any ties to Australia other than her studies, given her understanding her adult children will return to Greece upon completion of their studies. The Tribunal discussed with the applicant that it is commonly known that Melbourne has a large Greek community but the applicant says she has no ties to that community, which the Tribunal accepts.

2. Mr Hadjiantoni told the Tribunal he met the applicant after meeting her son at a coffee shop and agreed to become her benefactor because it is part of his beliefs as a Freemason to help others and do charitable deeds and works without expecting anything in return. He told the Tribunal he has a three bedroom house in Albert Park which he lives in alone as he is estranged from his family. Mr Hadjiantoni told the Tribunal the applicant had been living with him for nearly two years and they live in separate rooms, her children do not live with them and he is happy to support and assist the applicant until she completes her studies. He said a lot of youth and knowledge had left Greece because of the economic situation there but he expected the applicant to return at the end of her studies because of the high tourism levels in Greece.

3. In an undated written statement provided to the Tribunal before the Tribunal hearing Mr Hadjiantoni stated:

   I am … a member of St. George’s Club, Cypriot Club, Greek Orthodox Community and am also a member of the Victorian Free Mason (sic) … .

   Our principles include charity and helping others in need. I offer Fotini G. free accommodation and help with school fees. I have known Fotini since she came to Australia, and she is a very dedicated person, and a good single mother, who worked in her country, Greece. It was very hard to raise her two kids and educate them. Her kids came to Australia for further and better education.

   Please take all the above information into consideration to extend her visa, so that she is able to finish her studies and can be with her children, wherever they are until they finish their studies.[5] (sic)

   [5] Tribunal file, folio 43.

4. Mr Hadjiantoni’s evidence at the time of the Tribunal’s hearing in January 2018 that the applicant had been living with him for two years means the applicant moved in with Mr Hadjiantoni shortly after arriving in Australia, even though she did not apply for a Student visa until April 2016. Mr Hadjiantoni’s evidence is not consistent with other information before the Tribunal.

5. The applicant’s application for the Student visa dated 12 April 2016 stated she and her two children lived at 110 Atherton Road, Oakleigh. The applicant’s statement to the Department dated 6 June 2016, quoted above, states she has two adult children in Australia and the applicant is “staying with them in Oakleigh”. The delegate’s decision dated 14 June 2016 was addressed to the applicant’s Oakleigh address. The applicant’s confirmation of enrolment from her education provider dated 9 January 2018 was to the Oakleigh address.[6] The submission by the applicant’s representative handed up at the hearing on 29 January 2018 states that the applicant currently resides at the Oakleigh address.

   [6] Tribunal file, folio 38.

6. On the totality of evidence before it, the Tribunal does not accept Mr Hadjiantoni’s evidence that the applicant has lived with him since shortly after arriving in Australia. The Tribunal finds that the evidence before it indicates that at least up until January 2018 the applicant was living with her adult children in Oakleigh and their presence in Australia provides a strong incentive for the applicant to remain in Australia. This raises the concern for the Tribunal that the applicant has been using the Student visa program to maintain residency in Australia rather than to progress academically and return home to Greece.

7. There are no secondary applicants and the Tribunal does not find that there are any relationships of concern in the sense envisaged by Direction 53.

8. The applicant claims to have completed the following courses in her time in Australia:

   ·Certificate I in EAL (Access) – studied May to November 2016;[7]

   ·Certificate II in EAL (Access) – studied January to July 2017;

   ·Certificate III in Commercial Cookery – studied October to September 2018.[8]

   [7] Tribunal file, folio 41.

   [8] Tribunal file, folio 71.

9. The applicant provided copies of her completion certificates for the Certificate I and III. The applicant provided a transcript of her academic results for the Certificate II, which showed a ‘not yet competent’ or NYC result for one of the eight units shown, the applicant being assessed as competent in the other seven units shown. This means Tribunal has not been provided evidence of completion of the Certificate II by the applicant.

10. As noted above the applicant is currently studying a Certificate IV in Commercial Cookery which she is due to complete on 12 May 2019, followed by enrolments in a Diploma of Hospitality Management (completed date due 8 March 2020) and an Advanced Diploma of Hospitality Management (completed date due 6 September 2020).

11. The Tribunal discussed with the applicant that she had come to Australia to study English to assist her to obtain a job running a beauty salon in a major hotel in Chalkidiki. During the hearing the applicant said her plans had changed. She told the Tribunal she has now decided to work in hospitality as it is part of the tourism industry and like the hair and beauty industry involves dealing with and serving people.

12. The applicant told the Tribunal her current plan is to open her own business in tourism, a business in which she hopes her children can help and which is in connection with food. The applicant’s evidence is she has a job offer from a Zithos Greek Restaurant and Cake Shop in Thessaloniki with an undated written job offer provided by a Mr Katranitsas, who the applicant’s representative submitted is the owner of the restaurant. That letter does not identify when the applicant worked at Zithos, for how long or in what role that led to the job offer or when the job offer was made. In the letter, Mr Katranitsas states:

    [The applicant] has decided to further her skill and knowledge working in a commercial kitchen by going to work and train in Australia. Following this training, and upon her return to Greece, I offer her the position to work in my restaurant’s kitchen… .[9]

    [9] Tribunal file, folio 44.

13. The Tribunal discussed this job offer with the applicant and noted that she is not due to complete her studies in Australia until September 2020. The applicant told the Tribunal Mr Katranitsas is offering her a job that has whatever to do with a chef’s employment that is what the applicant is studying for. The Tribunal asked whether Mr Katranitsas’ job offer will remain open until the applicant completes her studies to which the applicant replied yes, because tourism has increased substantially in Greece and the area the restaurant is located in is well known for attracting tourists.

14. The Tribunal asked the applicant whether working for Mr Katranitsas would assist her in her aim to set up her own business later on to which the applicant replied “of course”.

15. The Tribunal shared the applicant’s PRISMS records with her in accordance with the procedure required by s.359AA of the Act. The Tribunal informed the applicant that her PRISMS records showed she had completed her English language studies in accordance with her original plan for coming to Australia but has not returned to Greece and has enrolled in another three years of study which is relevant to her review because it could lead the Tribunal to the view that the applicant is in Australia to maintain residence rather than study and progress academically. The Tribunal explained to the applicant the consequences of the Tribunal relying on this information could be that the Tribunal finds the applicant is not a genuine applicant for temporary entry and stay in Australia as a student which would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review.

16. The Tribunal offered the applicant additional time to consider this information before commenting upon or responding to the information. The applicant did not request additional time before responding to the information in her movement records.

17. The applicant confirmed her PRISMS record is accurate and explained she would like to complete her studies and return to Greece as well as her children returning to Greece because Australia has given them certificates they can use in Greece and Australia has given the applicant the opportunity to learn so much more in the area she wants to work in and has also improved her English. The applicant said due to the decision of the delegate she cannot find employment in Australia and already has been assisted so much by Mr Hadjiantoni she is indebted to him but is not yet in a position to return to Greece and wants to complete her studies and also act as a mother to her children in Australia and told the Tribunal when “we all”, meaning the applicant and her adult children, complete their studies they will be able to return to Greece.

18. The applicant has cancelled enrolments in a Certificate III and IV in EAL in May 2016, which she did not end up studying, and also had a course cancellation in September 2017 for her Certificate III in Commercial Cookery, which she completed in September 2018. The Tribunal notes that despite these course cancellations the applicant has studied reasonably continuously in Australia since applying for a Student visa in April 2016, which is consistent with the applicant being a genuine temporary entrant.

19. Having studied in Australia for over two and a half years and having completed at least two, and possibly three certificate courses, the Tribunal finds the applicant has a realistic knowledge of living and studying in Australia and her education provider who she has completed her Certificate III with.

20. The Tribunal asked the applicant if she intends to do further English language studies to which the applicant replied that if she is given the right to find some employment in Australia that would help her English otherwise she cannot do anything. The Tribunal asked the applicant if she and her children would like to settle in Australia to which the applicant replied they would really like to go back to their country though Australia is a “lovely country”. The Tribunal asked the applicant her plan with her studies and when she expects to return to Greece. The applicant responded she intends to be a diligent student and when she acquires all of her certificates she will return to Greece and resume the work which is waiting for the applicant.

21. There is no evidence before the Tribunal of what income the applicant expects to earn in Greece using her Australian qualifications and the Tribunal has no information of what the applicant could earn in Australia using those qualifications given the applicant’s evidence that she has not been able to find work in Australia and intends to return to Greece.

22. The applicant’s evidence about her changed career plans was not convincing and did not appear to the Tribunal to be a genuine plan. This calls into question the value of the applicant’s studies to her future. The applicant did not describe her job offer back in Greece with any specificity, other than she would do whatever a chef does. The job offer itself is in very broad terms with no job title, no description of the role beyond the applicant will “… work in my restaurant’s kitchen…” and with no details of terms and conditions, including remuneration.

23. In relation to the applicant’s future plans beyond working for Mr Katranitsas the applicant again did not describe her business with a level of detail that may indicate it was a genuine plan which would then justify the applicant’s decision to go to the cost and expense of studying in Australia and being away from her home, friends and parents, particularly her father who the applicant described as having increasing care needs. The applicant only told the Tribunal she wants to open a hospitality business because it is part of the tourist industry, it will have a food focus and she hopes her children will be involved. The applicant did not tell the Tribunal what type of business she plans to establish, what food it may sell, what her or her children’s roles would be or any other details about this proposed business such as its size, location, competitors or similar.

24. The applicant’s evidence in this regard seems at odds with her daughter’s evidence that she is studying community services in Australia so she can return to Greece to work as a volunteer or employee social worker. Similarly, it seems inconsistent with the applicant’s own evidence that her son is studying refrigeration in Australia, consistent with his past employment in the refrigeration industry and that he has a job waiting for him in Greece with a  good company. The Tribunal accepts that working with their mother in hospitality could be a longer term plan for the applicant’s children, although her daughter gave specific evidence of wanting to work as a social worker and did not mention any discussions or plans to work with her mother at some stage in the future.

25. The Tribunal does not find the applicant’s future plans to be credible and therefore finds her current and proposed studies in Australia provide at best limited value for the applicant’s future. The Tribunal finds that the applicant is using the Student visa program to maintain ongoing residency in Australia contrary to the intentions of Australia’s migration program.

26. The applicant’s registered migration agent submitted at the end of the hearing that the applicant:

    ·has been committed to her studies;

    ·changed her plans to improve her employment opportunities back in Greece;

    ·is a genuine student with an extremely strong intent to return to Greece;

    ·has no ties to Australia other than her studies, given her children are in Australia on temporary Student visas and intend to return to Greece;

    ·has not returned to Greece since arriving in Australia in January 2016 because she has not wanted to jeopardise her studies;

    ·has complied with her visa conditions since being in Australia and intends to comply in the future; and

    ·overall is a genuine student. 

27. The Tribunal has considered these submissions. The Tribunal accepts that there are no known adverse immigration findings against the applicant in Australia or overseas and there are also no known visa cancellations or refusals (other than for this Student visa) or breaches of visa conditions.

28. However, on the applicant’s written and oral evidence the Tribunal has found that the applicant had a pre-existing intention to study in Australia when she came to Australia on a Tourist visa leading the Tribunal to find the applicant intended to circumvent the intentions of Australia’s visa program at that time. 

29. The applicant and her registered migration agent did not bring any other matters to the attention of the Tribunal that have not been addressed in the Tribunal’s reasons above.

    Conclusions

30. 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).

31. 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

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

    Michael Ison
    Senior Member