KAUR (Migration)

[2018] AATA 376

KAUR (Migration) [2018] AATA 376 (22 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss AMARJIT KAUR

CASE NUMBER:  1621178

DIBP REFERENCE(S):  BCC2016/1415449

MEMBER:Warren Stooke AM

DATE:22 February 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 February 2018 at 11:56am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether applicant genuinely intends to stay in Australia temporarily – Value of further studies to applicant’s career – Repetition in studies – Vocational studies undertaken despite applicant undertaking higher studies previously – Limited returns to home country over extended period – Studies used to maintain residency

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 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 11 April 2016. The delegate decided to refuse to grant the visa on 23 November 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).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations. The delegate’s findings were that the applicant had an incoherent selection of courses, a return to India only once in 9 years, a lack of progress beyond vocational study, an immigration history with a lack of ties to the home country and that the Student program was being used to circumvent other migration programmes in order to prolong the stay in Australia.

4. The applicant appeared before the Tribunal on 21 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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)     …

9. 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.

10. 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.

11. At the commencement of the hearing the Tribunal established that the applicant had read and comprehended the decision of the delegate of 23 November 2017.

12. The Tribunal canvassed the findings of the delegate in the decision with the applicant before putting specific questions to the applicant.

13. The applicant confirmed in the hearing that she holds a Bachelor of Arts following university studies in India and that she was a teacher before arriving in Australia to undertake her studies. The applicant will turn 33 years old in June 2018.

14. A written statement was provided to the Tribunal by the applicant before the hearing, which asserted that the applicant was a genuine temporary entrant. The statement valued the quality of education in Australia relative to the standard in her own country; noted that Australia has advanced marketing and management practices; valued the fact that Australia is safe for women; identified the financial stress on her father with supporting two siblings in tertiary education from a crop farming income; that the courses of study will enable the operation of a bakery/coffee shop in India; and that she has strong ties with the home country.

15. The applicant informed the Tribunal that she had a current Certificate of Enrolment and advised that she was undertaking an Advanced Diploma in Marketing and Communications, which the applicant commenced on 18 September 2017 and is scheduled to conclude the course on 18 September 2018.

16. The Tribunal reviewed the courses that the applicant had completed and this included the following:

    §Certificate III in English as a Second Language

    §Advanced Diploma of Hospitality Management

    §Certificate III in Hospitality (Patisserie)

    §Diploma of Hospitality

    §Diploma of Management

    §Advanced Diploma of Management

    §Diploma of Human Resource Management
    Advanced Diploma of Management (Human Resources)

    §Diploma of Marketing

    §Advanced Diploma of Marketing

17. The Tribunal notes that the studies undertaken are both diverse and have contained a high degree of repetition, which places a serious question upon the value of these courses to any future career plan. The courses were also of varying duration, within the VET sector (despite graduate status before arriving in Australia) and relatively inexpensive.

18. The applicant was asked to explain how an Advanced Diploma in Marketing and Communications was going to fill any perceived ‘skills gap’ given that the applicant already had a Diploma in Marketing and an Advanced Diploma in Marketing. This intensity of study contrasts with the applicant’s stated intention to open her own bakery and coffee shop in India. In response, the applicant advised the Tribunal that the course work would assist in the businesses promotion and marketing and communications with staff. The applicant was not able to adequately explain why the former learning, including six discrete Diplomas in Hospitality, Human Resource Management and Marketing, had not provided the relevant skills, especially to operate a bakery/coffee shop.

19. The applicant confirmed in evidence that she did not have a business plan and would prepare such a plan upon return to India after completing her course, however in subsequent evidence concerning an explanation of a skills gap, the applicant advised she has a business plan. This statement was withdrawn when the Tribunal sought clarification concerning the contradictory evidence and the applicant confirmed she has no business plan.

20. The applicant provided evidence that it was not possible to undertake the studies she had completed in Australia, in India, as the education standard is poor and that women were discriminated against relative to men.

21. The applicant advised the Tribunal that she intended to return to India when she completed the Advanced Diploma in Marketing and Communications in June 2018.

22.    The delegate’s decision noted that the applicant at the time of decision had only returned home for a total period of 55 days since arriving in Australia on 25 October 2008. The Tribunal confirmed that at the time of hearing the applicant has not returned to India post the delegate’s decision, however she did maintain contact through the phone and the web. The applicant advised the Tribunal that she had not returned home due to cost and that her father was financially challenged given he is currently supporting two sisters in India.

23.    The Tribunal raised the matter of the inadequate response to the delegate’s invitation to provide material concerning the status of genuine temporary entrant. The delegate stated in the decision:

“I note however that you have provided no direct comment that explains how these courses will contribute to your stated career plan.

Given that you have enrolled in courses that will bring your period of study in Australia to almost ten years, I consider it reasonable to expect that you would have established a plan for your future that clearly articulates how all past, current and planned studies will assist in your stated goals. I find it significant that you have not provided this information.

You have professional qualifications and experience from your home country. You are currently working in a field that does not appear to draw upon any qualifications you have obtained in Australia but which relates to your past professional experience. You have been studying in Australia for a considerable period at a vocational level without progressing to higher education or returning to your home country to utilise the vocational skills you have obtained. On balance I am not satisfied that there is an established relevance between your current enrolments and your past academic or employment background.

In the letter sent to you, you were requested to explain the relevance of your current enrolments to your future career and/or educational plans. In your GTE response you make vague and general comments relating to marketing in a business context. You provide no clear or discernible indication of the value of these courses to your stated career plan or how these courses will add value to the qualifications you have already obtained in Australia.

Despite asserting that almost ten years of study is for the purposes of opening a business in your home country, you have provided no indication of having researched opportunities for this business or having prepared a plan to achieve your aims as might be expected after such an investment in international education.

On the basis of the above considerations I find the value of your current courses to your future career and remuneration prospects in your home country is not established.”

1. The applicant advised the Tribunal that she prepared the response herself without the assistance of a lawyer or agent and stated that she had not been deliberately evasive and the omissions were “accidental”. 

2. The applicant confirmed to the Tribunal that she has Australian resident friends, whom she had met through the workplace.

3. The applicant gave evidence that she has been engaged in work in Australia in child care; however she does not intend to work this year whilst undertaking her studies and will be financially supported by her father.

4. The applicant confirmed that she does not have any relatives in Australia and has a father and two sisters in India.

5. The Tribunal asked the applicant why it would take 10 years of study, across a myriad of subject areas, to run a bakery/coffee shop. The applicant was unable to provide an adequate response.

6. The applicant confirmed to the Tribunal that she would be able to assimilate back into India upon return from Australia and that she did not think there was any reason that would preclude a return to India. In this regard, the applicant stated that she wanted to see her family.

7. The Tribunal asked the applicant if it was her motivation to gain permanent residency, to wit the response was no!

8. The representative provided a written submission on behalf of the applicant prior to the hearing, which the Tribunal has read and considered in its deliberations. The submission ostensibly covered the evidence provided by the applicant. A notable comment related to the cost of courses in a mainstream university of $30,720 in a single year, which compares to the lesser cost of study of VET based courses of $16,400.

9. The representative appealed for consideration from the Tribunal to enable the applicant to complete the current course, which has covered 66% of the course requirements for the award of Advanced Diploma of Marketing and Communication.

10. The Tribunal is not satisfied that the applicant is a genuine temporary entrant, as envisaged under the education framework for international students undertaking study in Australia. The Tribunal is not satisfied that the myriad of courses have any particular theme other than to maintain residency, particularly given that the applicant is a university graduate who could be expected to study at that level but has chosen instead to pursue VET based short courses that are relatively inexpensive, as denoted in the submissions of the representative.

11. The Tribunal finds that the applicant has no business plan and that the repetition of course studies does not compute when considering that the stated objective is to run a bakery/coffee shop. The ten years of academic study does not support such a basic business objective.

12. Further, the Tribunal is not satisfied that the applicant has maintained substantive relationships with her own country having only returned for a period of 55 days in almost 10 years. This is not the expected behaviour of a genuine temporary entrant.

13. Overall, the Tribunal is of the view that the study programme is being used to maintain residency in Australia and that the applicant is abusing the student study scheme to achieve that objective.

14. The Tribunal is satisfied that in the context of Direction 53 that there is no reason on the evidence of the applicant to preclude the applicant from returning to India. In this regard, the applicant’s father is a farmer who is currently sufficiently financially stable to support his daughters in higher education both internationally and at home.

15. 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).

16. 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

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

    Warren Stooke AM
    Member