LESTARI (Migration)

[2017] AATA 354

LESTARI (Migration) [2017] AATA 354 (4 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms NI PUTU INDRI LESTARI

CASE NUMBER:  1608319

DIBP REFERENCE(S):  BCC2015/4026720

MEMBER:Mara Moustafine

DATE:4 March 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 04 March 2017 at 5:08pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine student – Unexplained year gap in enrolments – Change of studies from Higher Education Sector – No evidence supporting claimed accounting studies

LEGISLATION

Migration Act 1958, s 65, 359AA, 499
Migration Regulation 1994, Schedule 1, 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 first arrived in Australia on 26 May 2013 on a TU 573 Student visa valid until 22 September 2016. The applicant applied to the Department of Immigration for a TU 572 Student visa on 23 December 2015 to undertake the following courses: Certificate IV, Diploma and Advanced Diploma of Business. The delegate decided to refuse to grant the visa on 31 May 2016.

3. 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).

4. According to his decision dated 18 April 2016, a copy of which the applicant provided to the Tribunal with her application for review, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because he was not satisfied that she was a genuine applicant for entry and stay as a student and that she intends to stay in Australia temporarily. The delegate was particularly concerned that the applicant had previously been enrolled in a Bachelor of Business and breached visa condition 8516 by failing to maintain enrolment in the Higher Education sector while of a subclass TU 573 visa and had not explained the gap of over one year in her studies between November 2014 and January 2016.

5. The applicant applied to the Tribunal for a review of this decision on 7 June 2016. With her application she provided a submission and supporting documents, including current Confirmations of Enrolment (COEs) for the following Business courses: Certificate IV (18/1 – 26/6/2016), Diploma (4/7/17 - 1/6/2017) and Advanced Diploma (3/7/2017 – 10/12/2017); certificates of completion for General English (3/6/2013 to 9/8/2013)and Diploma of Business (issued on 10/10/2014); as well as COEs for a package of Accounting courses (Certificate III to Advanced Diploma starting in January 2015 and ending in June 2016).

6. In her statement the applicant said that she initially came to Australia to study English, a Diploma of Business and Bachelor of Business. She had successfully completed her English course and Diploma of Business course on 13/10/2014. However, she did not continue with her Bachelor of Business as she had struggled with the Diploma and ‘did not require a degree level course for her future plan’ so went to an Education Consultant for ‘a solution’ where she did ‘not have to study the degree course’. The consultant advised her to undertake an Accounting course and apply for another visa later on, assuring her that she would not be breaking any rules. She started her Accounting course but found that Accounting was not her ‘forte’. She then went to another consultant who advised her that she was breaching the rules and that she should apply for a new visa if she did not want to study a degree course. As she was not interested in Accounting, she got admission into a Business package and applied for the 572 visa under review. She claimed that she had been studying throughout, even though she had been struggling and that the reason she did not change her visa subclass earlier was that she was misguided. She was now studying in a course she was enjoying and had applied for a new visa so she could abide by the student visa rules.

7. The applicant appeared before the Tribunal on 3 March 2017 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

10. 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)     …

11. 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.

12. 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.

13. At the beginning of the hearing on 3 March 2017 the applicant presented to the Tribunal a letter from her education provider stating that she had been enrolled in the Diploma of Business in the intake 26 September 2016 and had completed one unit. However, since she had been granted a Bridging Visa E on 13 January 2017 with condition 8207 (No Study) she was no longer a student.

14. The Tribunal discussed with the applicant the reasons her Student visa had been refused in the context of the Genuine Temporary Entrant criterion, noting that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant her circumstances in Indonesia and Australia, her immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.

15. The applicant said she had completed a Diploma of Tourism in Indonesia and worked in administration in a clothing factory before coming to Australia in May 2013 to study for a Bachelor of Business as there was ‘no business blood’ in her family as her mother worked for the government and her father was a musician. She outlined her study history in line with her written account at paragraph 6 and said that she worked in housekeeping at Meriton for about three years while studying, but was not working now.

16. The applicant said she understood she had breached Condition 8516 by not studying for a degree course while holding a TU 573 visa. Asked about her ‘future plans’ in light of her comment that she ‘did not require a degree level course for her future plan’, the applicant said she had recently married her childhood sweetheart and intended to open her own ice cream shop in Bali after she finished studying, though she did not yet have a shop.  She said she only wanted to finish her Diploma of Business, which would only take another two or three months, and would not pursue an Advanced Diploma.

17. When asked to explain the gap of over one year in her studies between November 2014 and January 2016 identified by the Department, the applicant claimed that she had been studying Accounting throughout the period, even though she was not doing well and did not finish. Asked if she could provide any evidence that she had been enrolled in or studied this course, such as a COE, the applicant was unable to remember the name of the college but said she thought she had a student identity card somewhere. The Tribunal does not find this credible given that there is no indication in the applicant’s Provider Registration and International Student Management System (PRISMS) record that she was ever enrolled in any accounting or any other courses during that period. In accordance with s.359AA of the Act, the Tribunal drew this information to the applicant’s attention, showing her a copy of the PRISMS record, noting that this raised doubts about her truthfulness. The applicant responded that she had studied the course but not finished it and changed to a different provider, who told her to apply for a 572 visa. The Tribunal is not satisfied that the applicant is being truthful in her evidence and does not accept that she was ever enrolled in the accounting courses.

18. Asked why she needed to complete a second Diploma of Business when by her own evidence she had already achieved this qualification, the applicant said the school at which she had previously studied had closed down and she wanted a qualification from a school that was still operating. As discussed with the applicant, the Tribunal does not accept that this is consistent with the purpose of a student visa for a student to study and progress academically.

19. In view of the applicant’s migration and study history of only completing an English course and a Diploma of Business since her arrival in Australia in October 2014 on a higher education sector TU 573 visa, the significant gap in her studies and the Tribunal’s concerns about the applicant’s truthfulness, as discussed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student and that she intends to stay in Australia temporarily. In the Tribunal’s view, the applicant has used the Student visa program to maintain ongoing residency in Australia.  

20. 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).

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.

    Mara Moustafine
    Member