Kaur (Migration)

[2017] AATA 1305

Kaur (Migration) [2017] AATA 1305 (14 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Amanpreet Kaur

CASE NUMBER:  1608536

DIBP REFERENCE(S):  BCC2015/2411799

MEMBER:Wendy Banfield

DATE:14 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 14 July 2017 at 12:44pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 – Not a genuine temporary entrant – Changed from higher education course to vocational course

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 1, Item 1222, Schedule 2, cl 573.223

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 applied to the Department of Immigration for the visa on 20 August 2015. The delegate decided to refuse to grant the visa on 27 May 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.573.223 of Schedule 2 to the Regulations because she did not meet the criteria as a genuine temporary entrant to Australia as a student.

4. In its decision dated 27 May 2016 the Department considered the following matters:

   ·     The applicant was granted a visa through a streamlined process which required her to study an eligible higher education course with an eligible provider, however; the applicant changed her enrolment from a Master of Education to a Diploma of Hospitality;

   ·     The initial student visa was granted to allow the applicant to undertake a Master of Education but the applicant claimed she now wished to study a Bachelor of Business to develop her family agricultural business in India;

   ·     A Diploma of Hospitality undertaken by the applicant was unlikely to be of value to a family farming business;

   ·     The applicant completed a Bachelor of Education and Master of Science – Information Technology in India which is inconsistent with her study and employment plans;

   ·     The applicant did not demonstrate that she had investigated relevant Business courses in her own country;

   ·     It is unlikely the proposed course of study would significantly increase the applicant’s career prospects or remuneration in India to justify the expense incurred.

5. The applicant appeared before the Tribunal on 11 April 2017 to give evidence and present arguments. 

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

   The hearing

7. The Tribunal put to the applicant that she came to Australia to study at a higher education level but she later changed to a vocational course that was not in line with her original intentions. She said she was not able to commence her studies as she had difficulty with the English course and was advised to start at a lower level, and then return to higher education. The applicant claimed she told it would be best to build up to a Bachelor’s degree, which is why she commenced with a Diploma of Hospitality.

8. The Tribunal asked the applicant why she wanted to take another Bachelor degree when she already has a Bachelor of Education and a Masters in IT that she obtained in India. She said she wanted to continue her education in Australia. The Tribunal explained that her current plans, which are to work for her family agricultural business in India, are at odds with her original intention of studying a Master of Education. The applicant reiterated she had not been able to progress with her original plan due to English language issues, and said she had been confused and unfamiliar with how things are done in Australia. She said since she had not been able to complete the ELICOS course, there was nothing else she could do.

9. The Tribunal asked the applicant why she had taken a Diploma of Hospitality with the intention of then taking a Bachelor of Business. She said she changed her mind, since she was not permitted to take the Master’s course. She said it would be beneficial to her future to learn how to manage a business, and it was the only thing she could do. The Tribunal asked what the benefit was to her in studying hospitality and she said she had thought about opening her own restaurant in India and a Bachelor of Business would allow her to manage a business, as well as assist with her husband’s business in India. The applicant said she no longer plans to pursue a Masters of Education as it was too stressful and she wants to complete her course in Business. She said she has filled in forms to continue a Bachelor of Business. She has completed two semesters so far and stated it will finish in December 2017 or March 2018.

10. According to the applicant, after she completed a Diploma of Hospitality, she then took a Certificate III in Aged Care and then continued to study Business. The applicant said she took a course in Aged Care as she wanted to know how to care for old people in India. The Tribunal asked how that would assist her career prospects in India and she said there are opportunities there and she wanted to know how the elderly are cared for in Australia, as it is different to India. She said the main thing she wants to concentrate on is business.

11. The applicant has an aunt and uncle in Australia while her husband and immediate family are in India. She said her husband has an agricultural business. The applicant said she plans to return to India when she finishes her studies in late 2017 or early 2018 and she is able to open her own business or continue her husband’s business. The applicant said she is working in a factory, around her attendance at college.

12. The applicant claimed although she had changed course, she has nonetheless continued to study and she plans to return to India. Regarding having studied with a non-approved provider which was not permitted through her streamlined visa grant, the applicant again stated she had been forced to change her studies due to English difficulties.  The applicant has not returned to India since she first arrived in 2014 and has not seen her husband since then. The applicant said there were no issues that would prevent her from returning to India. She chose to study in Australia because she will learn more advanced techniques and methods. She said she already knows about the business environment in India and she wants to take ideas from here.

13. The representative submitted that the applicant had applied to enrol in the next semester of her course which commenced in June.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573.

16. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(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)     …

17. 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.

18. 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.

19. The applicant is a citizen of India currently aged 29 who is married. Her husband remains in India and has an agricultural business. The applicant has other family members in India and an aunt and uncle in Australia with whom she has been living. Prior to travelling to Australia for study purposes, the applicant had attained a Bachelor of Education and a Master of Science – Information Technology in her own country.

20. The Tribunal has had regard to the evidence provided by the applicant at the hearing and the written submissions provided prior to the hearing. The Tribunal takes into account the applicant is currently enrolled in a course and is studying; however, it is unrelated to the course she intended to study when first granted a Subclass 573 visa. The applicant had come to Australia to study a Master of Education but instead, she enrolled in and completed a Diploma of Hospitality. She explained that she had been unable to complete the English language course required for university entry and was advised to study at a lower level in order to progress into higher education.

21. The applicant gave evidence at the hearing that the Diploma of Hospitality course will assist her in her own country if she decides to open a restaurant. The applicant claimed she also studied a Certificate III in Aged Care as she wanted to learn how the elderly are cared for in Australia, it being different to India. The applicant’s reasoning for studying aged care was vague and unsatisfactory given she claims her key focus area now is Business. The Tribunal takes into account the applicant’s explanation that she had difficulty with her ELICOS studies which was required prior to commencing her university course, it would have made sense to study an area related to her ultimate goal. The Tribunal is not satisfied the applicant has studied hospitality and aged care, subjects unrelated to the fields of Education or Business, in order to enhance her career prospects in her home country.

22. The Tribunal accepts an applicant may change direction in their studies; however, in this case the applicant has already attained a high level of education in her own country. Despite already having tertiary qualifications, the applicant told the Department she plans to study Business as she wants to apply what she learns in Australia to her husband’s business and possibly a business of her own.  The Tribunal finds the applicant’s academic history and future plans in India are not consistent with her pattern of study in Australia. The applicant’s studies in Australia are unlikely to increase her career prospects or remuneration in India so as to justify the cost she has incurred of studying in Australia.

23. Although the applicant is married and has a husband in India, she has not returned since her arrival in 2014 and she declared her husband has not visited her. During the hearing, the applicant said she was working but was vague as to the nature of her employment, saying only it was in a factory and was undertaken around her study commitments. The applicant has been living with relatives in Australia and together with her employment; she appears to have an incentive to maintain residency in Australia.

24. 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.573.223(1)(a).

25. 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.

    DECISION

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

    Wendy Banfield
    Member