KUSHNA (Migration)

[2017] AATA 1631

KUSHNA (Migration) [2017] AATA 1631 (28 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr YUDISH BISSONDIAL KUSHNA

CASE NUMBER:  1609085

DIBP REFERENCE(S):  BCC2016/1102445

MEMBER:Wendy Banfield

DATE:28 August 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 28 August 2017 at 10:41pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine student – Sufficient reasons for proposed courses – Application of studies to a future career – Plans to start a restaurant business in Mauritius – Parents seeking permanent residency in Australia – Greater incentive to remain in Australia

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulation 1994, Schedule 1, Item 1222, 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 14 March 2016. The delegate decided to refuse to grant the visa on 1 June 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 of Schedule 2 to the Regulations because they were not satisfied the applicant provided sufficient reasons for his proposed courses of study or demonstrated how he will apply his knowledge in a future career.

4. The applicant appeared before the Tribunal on 2 June 2017 to give evidence and present arguments.

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

   The hearing

6. The applicant came to Australia in 2006 with his parents and brother. He commenced his education in Year 9 and completed Year 12. He then took a gap year and engaged in casual work. The applicant advised the Tribunal his parents are currently on Bridging visas and have applied for permanent residency. He is not a secondary applicant to his parent’s visa applications. The applicant’s mother first came to Australia as a student and he was a secondary applicant at the time.

7. The applicant is enrolled in and studying a Certificate III in Business and is approved to study further Certificate and Diploma courses. His father has a pizza restaurant but the applicant feels it has not reached its full potential because his father is a good chef but does not have business experience. The applicant said his qualifications to date and the proposed courses of study would allow him to find work in Mauritius or open his own business there. He said he would also consider working for a 5 star hotel.

8. The applicant said he currently works in his father’s pizza restaurant as well as working at a food supply company. After the applicant finished his studies and a gap year he decided to study hospitality as a career. The applicant has his immediate family in Australia and extended family in Mauritius. He has only been back to his own country twice since his arrival, while family members have visited here. The applicant said he will be able to adjust to life in Mauritius with the help of family and he also has property there. The applicant lives with his parents in Toongabbie and began his current course of study last year.

9. The Tribunal invited the applicant to make any further comments on the Departments decision to refuse his visa application. According to the applicant he decided to study Business to help his father with the financial side of his restaurant and also because it would help him in his casual job. He said it would also assist him on his return to Mauritius with regards to his career plans and possibly opening his own business. The Tribunal asked the applicant about the Department’s findings that given the amount of time he has been in Australia, the education the applicant is pursuing will be more beneficial to him while he is here. The applicant agreed the courses he is studying now will help him in Australia but he also stated that since it is difficult to get into good colleges in Mauritius, it will help him there too.

10. Regarding his parents applying for permanent visas in Australia, the applicant said although he lives with them now, he is nonetheless focussed on going back to his own country. He said he will be independent of his parents and do his own thing. The applicant has not applied for a permanent visa himself and declared he does not have military commitments or civil or political issues that would prevent him from returning.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 553.

13. 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)     …

14. 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.

15. 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.

16. The Tribunal considered the applicant’s circumstances in Mauritius, his potential circumstances in Australia, his immigration history and other relevant information in making its decision. The evidence submitted to both the Department and the Tribunal has been taken into account.

17. The applicant came to Australia from Mauritius in 2006 as a minor when his mother was granted a student visa. He completed high school in Australia and took time off for a gap year and to engage in casual employment. He then enrolled to study hospitality and is now studying business with plans to continue to Advanced Diploma level. The proposed courses in Business studies would take him until August 2020 to complete. The applicant has declared in his written statement provided to the Department and the Tribunal that he plans to go back to Mauritius and open his own restaurant and may work in a hotel or restaurant beforehand.

18. On the evidence available to the Tribunal, the applicant’s circumstances in his home country are that he has extended family member there. However, he has only returned to Mauritius twice since arriving in Australia; once in 2009 and once in 2012 for approximately one month on each occasion. The applicant said he wants to continue studying in Australia as it will benefit him in future. He said that although he has some experience as a chef, he wants to complete qualifications in business as he plans to open a restaurant in Mauritius. The applicant told the Tribunal he will be able to readjust to life in his home country with the help of family members who live there. The applicant declared Mauritius is a tourist destination and he will take advantage of the industry there in future to run a business. Despite this he does not have definite plans for the future or demonstrated any particular knowledge about the hospitality environment there or career prospects.

19. The applicants potential circumstances in Australia are that he has been in the country for more than 10 years and has worked and studied here. He has ongoing ties to Australia through his parents who are seeking permanent residency and a brother who lives here. The applicant’s father has a pizza restaurant and the applicant wishes to assist him with the business because it was claimed his father is a good chef but not a good manager. The applicant is working in his father’s pizza restaurant and also at a food supply company. During the Tribunal hearing the applicant said his qualifications in Business will assist him in both of these positions. The Tribunal finds that on the applicant’s evidence, his studies will be of benefit in Australia, the place where he has spent his formative years since age 14 and where he actively plans to assist his father’s small business.

20. The Tribunal considered the value of the courses undertaken in Australia to the applicant’s future. He said he plans to return to Mauritius and work in hospitality with a plan to open his own restaurant. The Tribunal accepts the applicant’s qualifications in business would assist him in finding a job but regarding plans to open a restaurant, as he has spent very little time in Mauritius since the age of 14, he is not familiar with the local environment and does not have local experience. The Tribunal notes the applicant has not made significant academic progress since completing high school, even taking into account his choice to take a gap year.

21. The Tribunal assessed the applicant’s immigration history in Australia and as stated, the fact that he has lived in Australia since the age of 14. He has only returned twice to his home country since arriving in 2006 which indicates that although he has extended family, it is not an incentive to spend any significant time there. Despite his claims he could readjust to life in Mauritius in future, the applicant lives with his parents in Australia and he would have to reside in that country without them if they were successful in gaining Australian residency. The Tribunal finds that on balance, the applicant has a greater incentive to remain in Australia. The Tribunal does not accept the applicant enrolled in a suite of Certificate and Diploma Business courses until 2020 with the genuine intention of remaining in Australia as a temporary entrant.

22. The other matters considered by the Tribunal are the applicant’s ability to support himself in Australia through his work in his father’s pizza restaurant and in a food supply company. He has not worked in Mauritius and the Tribunal is not satisfied he genuinely plans to return there after completing his studies.

23. 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).

24. 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

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

    Wendy Banfield
    Member