Kitayama (Migration)

[2017] AATA 1940

Kitayama (Migration) [2017] AATA 1940 (11 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Yukie Kitayama

CASE NUMBER:  1612836

DIBP REFERENCE(S):  BCC2016/1760852

MEMBER:Lilly Mojsin

DATE:11 October 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 11 October 2017 at 13:14pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Genuine temporary entrant – Intention to study – Intention to return to home country – Applicant failure to appear

LEGISLATION

Migration Act 1958, ss 65, 360, 362B, 499

Migration Regulations 1994, 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 applied to the Department of Immigration for the visa on 17 May 2016. The delegate decided to refuse to grant the visa on 4 August 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 because the applicant did not satisfy the requirements of cl.572.223(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 and attached a copy of the Department decision to her application for review.

6. The applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 11 October 2017. The invitation stated that if she did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.

7. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

8. The applicant did not appear before the Tribunal on 11 October 2017 to give evidence and present arguments. The applicant did not contact the Tribunal to explain her non-attendance.

9. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant arrived in Australia on 6 April 2005 and was granted a student Visa onshore on 18 April 2006. The applicant was subsequently granted a number of student visas. The applicant was granted a Subclass 457 visa on 17 May 2012, in order to work in the occupation of a cafe or restaurant manager. The applicant has now enrolled in a Certificate III in Information Digital Media Technology commencing on 23 May 2016 and ending on 21 August 2016, Certificate IV in Information Technology Support commencing 22 August 2016 and ending on 20 August 2017 and Diploma of Information Technology Systems Administration commencing on 21 August 2017 and ending on 19 August 2018. The applicant has also been nominated for an EN 186 Visa by the same sponsor as her 457 Visa in the same position.

11. In response to a request by the Department for information about the genuine temporary entrant criteria, the applicant stated that she considered IT as a beneficial career path and that seeking Australian permanent residency should not be looked at negatively. She opined that she studied in Australia because tuition fees are cheaper and she has more of a chance to practice English and to gain IT knowledge. She plans to advance to a degree course if she does not obtain employment with her sponsor. She intends to return to Japan after she completes her current and future course. She comes from a rich family but wants to earn money by herself to spend for her studies. She has a strong tie with her family, and Japanese people generally have strong family ties with a burning instinct to return home once their mission is over in foreign countries.

12. The delegate was of the view that the applicant had recommenced studying for the purposes of the visa application only in order to secure a student visa rather than a genuine interest in the area of study and overall academic progress. The delegate noted that the courses that the applicant had chosen were of short duration, relatively low-cost and in unrelated fields of study. Further the applicant has been studying for six years in Australia without progressing to the Higher Education Sector Level. The delegate found that the applicant was using the student Visa program as a means of maintaining ongoing residence in Australia and did not have a genuine intention to stay in Australia temporarily.

    REASONS AND FINDINGS

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

14. 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)     …

15. 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.

16. 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.

17. As the applicant did not attend the Tribunal hearing, the Tribunal is unable to be satisfied that the applicant is enrolled in a course of study or has a confirmation of enrolment in a course of study in Australia. Whilst the applicant claims that she is studying because IT is a beneficial career path, that she studied in Australia because tuition fees are cheaper and she has more of a chance to practice English and to gain IT knowledge, the Tribunal has been unable to explore her claims with her. The Tribunal is unable to be satisfied, without further information from the applicant that she plans to advance to a degree course if she does not obtain employment with her sponsor.

18. The Tribunal is unable to be satisfied, without further information from the applicant, that she intends to return to Japan after she completes her current and any future course. Further without information from the applicant, the Tribunal is unable to be satisfied about her current family situation in Australia or her current family situation in Japan. The Tribunal is unable to be satisfied in relation to the applicant’s economic circumstances in Japan or in Australia, or to the value of the applicant’s course of study to her future. The Tribunal is unable to be satisfied in relation to the applicant’s immigration history and her previous travel to Australia and other countries.

19. 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.

20. Accordingly, the applicant does not meet cl.572.223(1)(a).

21. 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

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

    Lilly Mojsin
    Member