GONZAGA (Migration)

[2017] AATA 3173

GONZAGA (Migration) [2017] AATA 3173 (9 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jayne GONZAGA

CASE NUMBER:  1510176

DIBP REFERENCE(S):  BCC2015/930674

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          9 March 2017 at 11:00 am (VIC time)

DATE OF WRITTEN RECORD:                22 March 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 22 March 2017 at 2:19pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training Sector) – genuine temporary entrant – fourth student visa application – failure to commit to and complete courses – incentive to return – son in home country – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2 cl 572.223

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 July 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).

2. At the hearing on 9 March 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

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

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

5. You applied for a student visa on 24 March 2015.

6. Your application was refused on 13 July 2015 because having considered your circumstances, the delegate was not satisfied you were a genuine temporary entrant but found you were using the student visa programme to maintain residence in Australia.

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

8. As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant, decision makers need 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

9. 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 the applicant satisfies the genuine temporary entrant criteria.

10. 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.

11. You told the Tribunal you had read and had come to understand the primary decision which was discussed in detail at today’s hearing.

12. The primary decision and its detailed references to the issues of Direction No 53 put your notice of the issues in your case. When we sent you the invitation to today’s hearing we advised that we would assess whether you met the genuine temporary entrant requirements and asked you to provide a statement addressing the issues in Direction No. 53 again clearly putting you on notice about the issues the Tribunal would consider.

13. In response you provided a submission in which you made a number of claims. You gave reasons for the gaps in your studies and stated that you decided you didn’t want to continue hairdressing. In fact you told us today you did not want to study hairdressing from the start and you spoke of the problems you faced being a single mother with your son back home in the Philippines.

14. Your statement did not satisfactorily address many of the issues of Ministerial Direction No 53 but at today’s hearing you responded to a range of questions that went to those issues.

15. Before coming to Australia you had studied one year of a Liberal Arts degree with an English major, you studied three years of a Bachelor of Secondary Education.

16. You say you studied the three years of the Bachelor of Secondary Education over a period of eight years and stopped studying when your son was born in 2003.

17. You say you were never employed other than doing some cooking at home for parents of your son’s school friends once he went to kindergarten which is how you made ends meet. The Tribunal does not find this to be a particularly satisfactory answer.

18. You came to Australia as a 34-year-old to study hairdressing and were initially enrolled in Australia Hair and Beauty in Sydney before you transferred to Melbourne College of Hair and Beauty where you studied a Certificate III and a Certificate IV in Hairdressing over an extended period of time.

19. This is your 4^th student visa application – you have previously held 3 student visas.

20. You have been enrolled in a number of courses, most on multiple occasions, many of which have been cancelled , they include

    ·Certificate III in Hairdressing (3)

    ·Certificate IV in Hairdressing (5)

    ·Diploma of Hairdressing (2)

    ·Diploma of Salon Management (3)

    ·Certificate III in Commercial Cookery (2)

    ·Diploma of Hospitality

    and now you are enrolled in a Certificate IV in Commercial Cookery and another Diploma of Hospitality scheduled to run until May 2018.

21. Your failure to commit to and complete courses in which you have been enrolled suggests your desire and intention to remain in Australia outweighs your desire to achieve educational outcome.

22. You have been in Australia for 6 years and in that time have only completed a 12 month Certificate III Hairdressing, a six month Certificate IV in Hairdressing and a 12 month Certificate III in Commercial Cookery. So in 6 years you have successfully completed 2½ years of study. I do not believe this is the progress of a genuine student seeking to progress academically and certainly with your change of disciplines shows you are not travelling down a considered academic pathway but rather indicates you are using the student visa programme to maintain residence in Australia.

23. I believe that someone who comes to Australia at age 34 would have done research into what they intended studying, would complete their studies and return home.

24. The Tribunal is not satisfied you have provided any satisfactory explanation of how your proposed courses are relevant to your academic or employment background, and you have been unable to explain how your proposed studies would substantially improve your employment or remuneration prospects in the Philippines or a third country or assist in achieving your educational and career goals.

25. You say what you would like to do is to work to qualify to become a chef. A broad statement but you provide no further detail. You say you have great difficulty working under pressure which you find stressful which was the reason you resigned from your previous job in November last year because of the stress of working with other people when you were working as a cook.

26. You repeatedly have claimed you do not make decisions but that your actions are dictated by what your brother has suggested or told you to do.

27. As the Tribunal has said, it does not believe that someone who is incapable of working in a pressurised environment and does not make decisions is a candidate to be a chef.

28. You have had very significant study gaps. One a gap of some nine months between finishing your Certificate IV in Hairdressing and commencing your Commercial Cookery course. When the tribunal asked you about that gap you said the gap was because you were stressed and your circumstances were difficult. As the tribunal said, if that was the case it believed what you should have done was gone home and resolved your stresses before returning to study. You remained in Australia on a student visa.

29. Student visas require students to remain enrolled and studying. The Tribunal finds this study gap without an acceptable explanation indicates you are not a genuine student.

30. You have provided no sound reasons for not undertaking your studies at home other than saying Australian qualifications are more highly regarded.

31. You say your motivation is to support your son who you left behind as a seven year-old when you came to Australia. He is now a young man of 14 and you wish to stay here for more than a year and you claim that what you want to do is to return and support him.

32. You are qualified as a hairdresser which you say was your mother’s business and so the Tribunal questions that if what you want to do is support your son, why would you not go back with Australian hairdressing qualifications, which you say are highly regarded, and get employment which would enable you to support your son. You respond that you would like to do a job that you enjoy and you don’t enjoy hairdressing.

33. While the Tribunal accepts that having a son in the Phillipines is an incentive for you to return home, the fact you have been here 6 years and seek to stay longer indicates you see incentive to remain in Australia.

34. The fact that you live with your brother who is an Australian permanent resident clearly provides a comfortable existence and the relative economic opportunities in the Philippines and Australia in the Tribunal’s opinion provide an incentive for you to remain in Australia.

35. As was mentioned in the primary decision, your previous visa was due to expire on 27 March 2015. You got your enrolments on 20 March 2015 and lodged this application on 24 March 2015. The timing of those events indicates your motivation was to get a visa to remain in Australia rather than a genuine desire to study.

36. When we come to this year, you say you received a Certificate III in Commercial Cookery on 6 February 2017 which the Tribunal finds a little unusual given it is dated 20 December 2016.

37. However you say you received it on 6 February which was the same day you received the invitation from the Tribunal to attend today’s hearing, which was the same day you enrolled in your proposed courses. Once again the timing of those events leads the Tribunal to find your motivation was to be granted a visa rather than an intention to study.

38. 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 572.223(1)(a).

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

40. This decision was made at 11 AM on this 9 March 2017.

    DECISION

41. The Tribunal affirms the decision under review.

    Tim Connellan
    Member