MENOZZI (Migration)

[2017] AATA 2329

MENOZZI (Migration) [2017] AATA 2329 (1 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Franca MENOZZI

CASE NUMBER:  1613460

DIBP REFERENCE:  BCC2016/2229145

MEMBER:Lilly Mojsin

DATE:1 November 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 01 November 2017 at 3:24pm

CATCHWORDS

Migration – Student (Temporary)(Class TU) visa – Subclass 572 Vocational Education and Training Sector – English language studies – Not genuine student – Maintaining residence in Australia – Family circumstances in Australia – Babysitting grandchildren

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 30 June 2016. The delegate decided to refuse to grant the visa on 5 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 on 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, attaching a copy of the Department decision to the application.

6. The applicant appeared before the Tribunal on  26 October 2017 to give evidence and present arguments.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.

8. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing via telephone.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant has applied for a student visa in order to study English commencing on 2 October 2017 and ending on 2 February 201 and a Certificate IV in Business, commencing on 9 February 2018 an ending on 31 August 2018.

10. The delegate of the Department, assessing the application for a Student Visa, found that the applicant had not provided any substantial reason as to why she chose to study these courses other than better quality of education in Australia, the business course was a very basic and cannot assist someone to significantly improve their career prospects, that she gave a vague explanation about the competitive hospitality market in Italy, and that she failed to explain how knowledge of English language or studying a course in the English language can be helpful to set up a business in Italy. The delegate found that the applicant did not genuinely intend to stay in Australia temporarily and she was using the student visa program as a means of maintaining residence in Australia.

11. The applicant’s advisor forwarded a submission to the Tribunal dated 20 October 2017. In that submission the advisor opined that the applicant has an elderly mother and two siblings who reside in Italy. She has the ownership of real estate and this is a significant incentive to return to Italy. Her reason for not undertaking the course in Italy is based on the belief that she would gain a further understanding of the course and be able to practice speaking and writing English in a predominantly English-speaking country the course delivery by English-speaking teachers expediates the learning process and learning outcomes in comparison to an English course undertaken in Italy. Her reasons for undertaking the course in English is to assist the enhancement and development of her knowledge of English to return to Italy and establish a business in a high tourist area. She is also considering the possibility of establishing a Bed and Breakfast facility to predominantly attract tourists who mainly speak English when she returns to Italy. This would assist her with the running of the day-to-day operations of the business and include her English skills as part of an advertising campaign online to promote her business in the future.

12. At the Tribunal hearing the applicant said that she arrived in Australia in 2014 and stayed for three months. She returned to Italy and then came back to Australia four months later when she travelled with her family. Her daughter, son-in-law and grandchildren are not Australian permanent residents but her son-in-law has been sponsored and expects to eventually obtain Australian residency. The applicant applied for three visitor visas which were granted. She does not work. Her daughter and her son-in-law both work.

13. It was put to the applicant that she was babysitting for her grandchildren whilst her daughter was at work. She agreed and said that her grandchildren are attending school. It was put to the applicant that the cost of her study, $3000, was possibly cheaper than paying for childcare.

14. The applicant said that in Italy she worked in the hospitality industry. She owned places, and worked. Remaining in Italy are her two sisters, her daughter-in-law and her dog. Her partner is now deceased.

15. Asked why she did not study English in Italy if she wanted to start a business there, she said a few years ago she attended a course but that studying in Australia she has to speak English. She goes to the course Monday to Friday, it is held in George Street and she is now studying General English. She is studying reading, speaking and grammar.

16. The applicant said that she is 56 years of age and that on her return to Italy she intends to start a business, a Bed and Breakfast business. Asked how her studies in Certificate IV in Business would assist her to run this business she said that the certificate would assist her in innovative ideas. She has experience running a bar and a pizzeria. When asked what subjects she would be studying she said that she did not know, the school told her the course would be difficult and she would need to study more English prior to commencing the business studies.

17. It was put to the applicant that she is extending her stay in Australia in order to assist her daughter with childcare of her grandchildren particularly as childcare is expensive in Australia. She said that she intends to go back to Italy and feels more independent.

18. A post hearing submission provided by the applicant dated 26 October 2017 stated that the applicant’s grandchildren, who are 8 and 10 years of age are collected after school by their mother. The applicant attended English classes from 4.00pm to 10.00pm.  The applicant spends the earlier part of the day studying and completing the homework tasks required to fulfil course requirements.  On weekends the grandchildren are supervised by their parents and occasionally by the applicant’s son-in-law when the applicant’s daughter is rostered to work on a Saturday.  Further the applicant is unsure whether her son-in-law is able to transition to a permanent visa.  The applicant has concentrated on her English skills As the College has advised her she would not be able to participate in the Certificate iv course until their English skills improved.

19. The applicant has provided an updated Confirmation of Enrolment.

    REASONS AND FINDINGS

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

21. 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)     …

22. 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.

23. 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.

24. The Tribunal has considered and accepts that:

    ·     The applicant is 56 years of age and she has worked in the hospitality industry in Italy, and on her return to Italy she states she intends to start a Bed and Breakfast business, in a high tourist area, and she has made enquiries to do so.

    ·     The applicant ‘s reasons for not studying in Italy are that she is able to learn English from native speakers in Australia, that English skills would assist her promoting her business online, especially as she intends to cater to English speaking tourists

    ·     In relation to her ties in Italy the applicant has an elderly mother, 2 siblings, her daughter-in-law and her dog who live in Italy. She owns real estate there.

    ·     The applicant’s daughter, son-in-law and two grandchildren are temporary residents in Australia and her son-in-law hopes to remain in Australia and obtain permanent residence. Her son-in-law and daughter both work and the applicant cares for her grandchildren when they are not at school. She does not work in Australia and attends to her studies in General English, where she is learning reading, speaking, and grammar.

    ·     As the applicant is 56 years of age, the applicant does not have any military service commitments in Italy and the Tribunal notes that there is no political or civil unrest in Italy.

    ·     The applicant states that she intends to return to Italy at the completion of her studies to establish a business in a high tourist area.

    ·     There is no adverse information before the Tribunal about the applicant’s immigration history.

25. The Tribunal asked the applicant what subjects she would be studying in her intended course of Certificate IV in Business and how those subjects would assist her to run a Bed and Breakfast Business. The applicant did not know what subjects she would be studying or how these subjects would assist her to run her business.  She was only able to state that this course would assist her to obtain innovative ideas.

26. The Tribunal places great weight on the applicant’s inability to explain the subjects she intends to study in a business course and also places great weight on her inability to explain how these business subjects would assist her to run a Bed and Breakfast Business in Italy.

27. The Tribunal also places great weight on the applicant’s family circumstances in Australia, that is, her daughter and husband presently live in Australia temporarily and intend to obtain permanent visas in the future. The applicant assists her daughter and son-in-law with the childcare whilst they both work.

28. The Tribunal rejects the applicant advisors post-hearing submission that the applicant’s daughter and son-in-law care for their children, the applicant’s daughter picking them up from school every day and being at home with them in the afternoon and on weekends the children being supervised by their parents. This submission is contrary to the evidence provided by the applicant at the Tribunal hearing. The Tribunal is of the view that the applicant is extending her stay in Australia in order to assist her daughter with the childcare of her grandchildren.

29. On balance, 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.

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

31. 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

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

    Lilly Mojsin
    Member