MOSHABBO (Migration)

[2018] AATA 906

MOSHABBO (Migration) [2018] AATA 906 (7 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Emanuel Moshabbo

CASE NUMBER:  1617437

DIBP REFERENCE(S):  BCC2016/21421222

MEMBER:Penelope Hunter

DATE:7 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 07 March 2018 at 9:12am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether applicant genuinely intends to stay in Australia as a student – Evidence of significant academic progress – Strong family ties in home country – Credible reasons for undertaking studies

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 572.223(1)(a)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visas on 23 June 2016. The delegate decided to refuse to grant the visas on 3 October 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(1)(a) of Schedule 2 to the Regulations. The delegate refused the visa because the delegate was not satisfied that the applicant was a genuine applicant for temporary stay in Australia as a student.

4. The applicant appeared before the Tribunal on 12 February 2018, via video conference from Perth, to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent, although his agent did not attend the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CLAIMS AND EVIDENCE

7. The applicant is a citizen of Zimbabwe and arrived in Australia on 16 October 2013 and a dependant on his wife’s student visa. The applicant’s wife had returned to Zimbabwe, where their two children resided.

8. The applicant applied for the visa in order to undertake study in a Certificate III in Bricklaying and Blocklaying and a Certificate IV in Leadership and Management with course dates from 15 August 2016 to 27 September 2019.

9. In a statement in support of his application to the Department the applicant set out the following relevant information;

   i.He came from an under-developed country where housing and accommodation is a very serious problem. His wish is to develop his community through the skills that he will develop in Australia. He had a dream of constructing housing for people in his community who lost their houses or who were left homeless through operation Murambasvina. He also wished to own a construction company in which he would build housing and at the same time make a living out of it and provide employment to his community.

   ii.He chose to study in Australia because of the high standard of education. He also liked the high standard of construction equipment and machinery available. Studying in Australia would help him to gain experience in operating these machines and how to maintain them as they are not available in his home country. He will also gain knowledge of a modern way of construction.

   iii.He only studied to the equivalent of year 12 in his home country. It had always been his dream to further his education.

10. In their decision, a copy of which has been submitted to the Tribunal by the applicant, the delegate provided the following reasons for refusing the visa;

    i.The applicant had already been onshore for 3 years and his proposed study would extend his stay in Australia for a further 3 years. Since his arrival he had been away from Australia for only 39 days. This indicated his intentions were to remain onshore.

    ii.[Paragraph removed].  

11. Prior to the Tribunal hearing the applicant submitted a copy his record of attendance for his Certificate IV in Bricklaying/Blocklaying, his Confirmation of Enrolments and [other documents].

    CONSIDERATION, FINDINGS AND REASONS

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

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. On the material before it the Tribunal finds that the applicant satisfies the genuine temporary entrant criteria for the reasons as specified below.

17. The Tribunal acknowledges that the applicant had undertaken and successfully completed several courses while in Australia and progressed academically. The application under review is the second student visa for the applicant. He has not changed his courses or course direction but maintained enrolment and progression in his courses. This is the general expectation of applicants in Australia on a student visa. The study history of the applicant to date indicates that he will continue to comply with these expectations.

18. The Tribunal has considered the concerns of the delegate that the applicant’s proposed courses will extend his period of stay in Australia to 6 years. It is noted that the applicant had spent some time in Australia as a dependent. Overall he has only been studying since May 2014. He has explained to the Tribunal that he supported his wife for the first couple of years of her studies. They did not have the financial resources for the applicant to commence studies immediately.  She has completed her courses and on the evidence returned to Zimbabwe to operate a business. The Tribunal accepts as credible the reasons presented by the applicant as to why he did not study immediately on his arrival in Australia.

19. The applicant has presented credible reasons for choosing to study his proposed courses. It accepts that he plans to operate his own building business when he returns to Zimbabwe. The Tribunal accepts the evidence of the applicant that the training and structure of building related courses and the management skills he proposes to obtain will help him both practically with the work he proposes, and provide the skills to grow and develop his business. The Tribunal accepts his evidence as to why he sees Australia as a preferable place to study to gain well regarded qualifications.  

20. The applicant had recently returned to his home country, between 6 December 2017 and 14 January 2018. The Tribunal does not consider the fact that the applicant has only returned to his home country on two occasions since 2013 as indicative of a lack of ties to his home country. The Tribunal accepts that some students from less economically developed countries cannot afford multiple trips home during their stay in Australia and prefer to focus on their studies. The applicant has his wife and children in Zimbabwe. His children are aged 7 and 9 years. Additionally, the applicant had his mother and siblings in his home country. His wife is currently providing him with financial support while he is studying in Australia. The applicant claimed to own with his wife the business she now operates, as well as some cattle. The applicant maintains he has a strong relationship with his family and it is his intention to be able obtain the skills to provide economically for his family in the future. The Tribunal accepts that these family ties operate as a strong incentive for the applicant to return to Zimbabwe at the conclusion of his courses.

21. [Paragraph removed]. 

22. As to the applicant’s immigration history, there is no evidence before the Tribunal that he has applied for a permanent visa or other visa to Australia or other countries or has an adverse immigration record.

23. There is no evidence that the applicant has entered into a relationship of concern in Australia. The applicant submitted to the Tribunal that he was not undertaking his course in order to improve his employment prospects in Australia. He claimed that he had not been able to obtain any employment in Western Australia in the building industry due to the economic downturn and saw that there was considerably more potential to build a profitable business in his home country. The applicant does have family in Australia in the form of his sister-in-law, however the Tribunal is not satisfied that this relationship outweighs his family, business and community ties to his home country. The applicant told the Tribunal that he does not intend to undertake any further study once he has completed his enrolled courses and the Tribunal accepts his evidence that it is his intention to return to his home country at the end of his Advanced Diploma of Leadership and Management in 2019.

24. Overall, on the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.572.223(1)(a).

25. As the Tribunal has found the applicant meets the requirement of cl.572.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

26. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

    ·cl.572.223(1)(a) of Schedule 2 to the Regulations.

    Penelope Hunter
    Member