Kahandawa Pathirannahalage (Migration)

[2017] AATA 971

Kahandawa Pathirannahalage (Migration) [2017] AATA 971 (24 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Janaka Nuwan Pathirana Kahandawa Pathirannahalage
Leewani Nuwangi Amarasuriya
Natasha Dilki Pathirana Kahandawa Pathirannahalage

CASE NUMBER:  1610367

DIBP REFERENCE(S):  CLF2016/12947

MEMBER:Lilly Mojsin

DATE:24 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 24 May 2017 at 10:51am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 570 Independent ELICOS Sector – Genuine temporary stay – Genuine student – English for Academic Purposes enrolment – No application for MBA – Studying and working in Australia for 12 years – Prolonging stay in Australia

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulation 1994, Schedule 2, cl 570.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration 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 to the Department of Immigration for the visas on 23 February 2016. The delegate decided to refuse to grant the visas on 21 June 2016.

3. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student 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), or whether the applicant has the support of the relevant Minister (Subclass 576).

4. The delegate refused to grant the visa on 21 June 2016 because the applicant did not satisfy the requirements of cl.570.223(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.

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

6. The applicant appeared before the Tribunal on 18 May 2017 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant was granted his initial Student (Class TU subclass 573) visa offshore on 22/12/2004, valid until 17/02/2005. He arrived in Australia on 2/01/2005 and has been granted a number of student visas since that time.

8. At the Tribunal hearing the applicant confirmed that at time of application, the applicant was enrolled to undertake English for Academic Purposes course from 29/02/2016 until 03/03/2017 at Global English College.  He produced a further Letter of Offer to undertake another English course for Academic Purposes. He also produced a Statement of Attainment for the English Course he has just completed, indicating he had a B average explained as 80-89 Grade of Very Good, Able to express/grasp ideas effectively relative to the class level.  

9. He said that he had intends to work as a consultant in Sri Lanka, he proposes to return there once he completed his MBA. He has been working in Australia and looking for a job in Sri Lanka but could not find a job and so has stayed to obtain further skills in Australia. In Australia he works as a support engineer since 2016, before he worked at Fujitsu as support engineer and also worked at the Australian Turf Club to obtain management experience.

10. When his 485 visa ceased, he went to enrol for an MBA, but their English requirements are at a high level. He needs to reach that level.

11. In relation to his circumstances in his home country, he said that he wanted to work as a consultant, but there are so many graduates there. When asked why he could not do an MBA in Sri Lanka he said it is standard. MBA specializes in particular languages. 

12. In relation to his family, he said that his mother and brother are in Colombo but his brother is planning to move down south. Mother is ill and this is main reason he wants to go back. 

13. In Australia living with him are his wife and daughter, his wife has family. His daughter is 5 years of age, she was born in Australia.

14. He said that he had no military service commitments in Sri Lanka.

15. The Tribunal noted to the applicant that one of the considerations in the Ministerial   Direction was whether there was political and civil unrest in the applicant's home country, including situations of a nature that may induce the applicant to apply for a student visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. He said he was from Colombo and arrived in Australia prior to the end of the war in 2009. His goal is to finish English.

16. The Tribunal discussed the applicant's study history in Australia and noted that he had completed a university qualification in English. He agreed that he had.  He said that the value of his course to his future was that after completing an MBA his plan was to go back and start IT consultancy in Sri Lanka.

17. In relation to his immigration history and travels outside Australia he said that he does not go back home every year and he cannot remember how many times he has been back. He had not had a visa cancelled.

18. When discussing with him the amount of time he has spent in Australia and whether the student visa program may be being used primarily for maintaining ongoing residence, he said ‘no’ he is going back, his father is overseas and his brother wants to expand his business.

19. The Tribunal put to the applicant that he had provided a letter from UNSW MBA course requirements and it indicated in that letter that as a graduate from Southern Cross University he was able to apply and have this qualification recognized in order to be able to enrol in the MBA course as he has not done so the Tribunal was of the view that he was using his studies in English to prolong his stay in Australia. It was put that he had not made an application for English requirements waiver. He said that it is an English requirement and he has not achieved the require band of English, he could not achieve in each one. The applicant said that he struggled with English when he was studying and had to repeat some subjects that required English language skills. It was put to him that nevertheless he had completed the course.

20. Post hearing, the applicant provided an email that he had applied to UNSW in order to study an MBA.

    REASONS AND FINDINGS

21. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 570.

22. The issue in the present application is whether the applicant meets the time of decision criterion in cl.570.223. Clause 570.223(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)…….; 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.

    Applicant’s Circumstances

25. The applicant, from Sri Lanka, is a married man, his wife and child live with him in Australia. He child was born in Australia. The applicant’s father works overseas, whilst his mother and brother live in Sri Lanka. His brother intends to start his own business and move away from his mother. The applicant claims that he intends to return to Sri Lanka after completing an MBA in Australia. The applicant works in Australia in the IT sector. He has obtained experience in management additionally.

26. Applicant’s Immigration History

27. There is no information before the Tribunal to suggest that the applicant has breached Australian migration laws. He has returned to Sri Lanka since his initial arrival in Australia.

    Other Relevant Matters

28. The applicant has been studying and working in Australia for the past 12 years. The applicant has successfully completed a Bachelors Degree from Southern Cross University, studying in the English language. The Tribunal accepts that there were subjects in the applicant’s course that he struggled with and that he repeated. Nevertheless he finished his degree and has been employed in Australia in the IT field.

29. The applicant has also completed a course in Australia English for Academic Purposes. His results indicated he had a B average explained as 80-89 Grade of ‘Very Good, Able to express/grasp ideas effectively relative to the class level’.  The applicant seeks to study another course in English, English for Academic Purpose, with the ultimate aim of enrolling in an MBA at UNSW. The applicant claims that these courses are of value to his career and intention to return to Sri Lanka, after completing an MBA at UNSW.

30. The Tribunal accepts that the applicant has, post hearing, applied to UNSW online to study an MBA. The correspondence does not suggest that the applicant has been accepted in the course and the University has provided him with an offer of enrolment.

31. The Tribunal places great weight on the applicant not making an application to UNSW to have his prior studies in English at an Australian university recognised in order to obtain entry to his chosen course, a course of action which has been available to him. Instead the applicant applied for and has been studying a number of English courses, maintaining that he needs better English language skills before he will be accepted for enrolment at UNSW. The Tribunal is of the view that the applicant is studying English courses in Australia in order to prolong his stay in Australia.

32. Weighing up the applicant’s circumstances the Tribunal is of the view, on balance, that the applicant does not intend genuinely to stay in Australia temporarily.

33. 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.

34. Accordingly, the applicant does not meet cl.570.223(1)(a).

35. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. 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.

36. As the primary applicant does not satisfy the requirements for the grant of a visa, it follows that the dependent secondary applicants are not eligible for the grant of a visa.

    DECISION

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

    Lilly Mojsin
    Member