Nisha Rani (Migration)

[2018] AATA 1657

Nisha Rani (Migration) [2018] AATA 1657 (24 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Nisha Rani
Mr Devinder Singh
Ms Bhavya Sangwan

CASE NUMBER:  1610295

DIBP REFERENCE(S):  BCC2014/2423017

MEMBER:Stephen Conwell

DATE:24 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 24 April 2018 at 2:38pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine temporary entrant – GTE statement – Study history – Sufficient qualifications – Career plan – Value of courses – Family ties in home country – Length of stay in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 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 decisions made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 24 September 2014. The delegate decided to refuse to grant the visas on 7 July 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of sub-classes: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the sub-class 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 (Sub-class 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Sub-class 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Sub-class 575); whether the applicant has the support of the relevant Minister (Sub-class 576); or whether the applicant has applied on the basis of being a Student Guardian (Sub-class 580).

3. The delegate refused to grant the visa because the first-named applicant (the ‘applicant’) did not satisfy the requirements of the “Genuine Temporary Entrant” (GTE) criterion which applies in each sub-class of the student visa.

4. The applicant appeared before the Tribunal on 13 February 2018 to give evidence and present arguments.

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

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

7. Where used in this decision:

   a.   The applicant refers to the first-named applicant;

   b.   COE refers to Certificate of Enrolment;

   c.   PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   d.   VET refers to Vocational Education and Training;

   e.   The Department refers to the Department of Immigration and Border Protection;

   f.      Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application;

   g.   GTE refers to the Genuine Temporary Entrant criterion for Student visa applications;  and

   h.   IELTS refers to the International English Language Testing System.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Sub-class 580

8. At Hearing, the applicant was informed that the Sub-class 580 visa is for student guardians; where it is a requirement that the person will accompany a relative to or in Australia who is a student, and in order to make a valid application for a Sub-class 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1) and on the evidence it was not and therefore it appeared the application was not a valid application for a Sub-class 580 visa.

9. The applicant confirmed that Form 157G was not used and a Sub-class 580 visa was not sought, and was informed that the application appeared not to be a valid application for that sub-class in any event, and the Tribunal so finds.

10. For the remainder of this decision, a reference to sub-classes or all sub-classes of the Class TU visa does not include a reference to Sub-class 580.

11. Having regard to the applicant’s current proposed course of study, the relevant sub-class in this case is Sub-class 572.

12. 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)…

13. 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.

14. 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.

    At Hearing

15. At Hearing, the applicant was:

    a.   given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;

    b.   informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;

    c.   informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.   given an overview of the considerations laid out in Direction No.53 as summarised above;

    e.   informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the Tribunal Hearing;

    f.      informed that all sub-classes of the Class TU visa have equivalent ‘genuineness’ criteria, and that if the criterion was not met, it would likely not be met for each of those sub-classes.

16. The Tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Background

17. At Hearing, the applicant confirmed the following:

    a.   she first arrived in Australia on a 573 student visa in November 2008, with her husband and young daughter (born in 2006) as dependants;

    b.   she came to Australia after completing her high school education in India;

    c.   upon expiry of her initial 573 Student visa on 15 March 2011, she was granted a 572 Student visa for the period 23 March 2011 to 5 May 2012;

    d.   she was granted a further 572 Student visa for the period 18 May 2012 to 30 September 2014, being her last substantive visa;

    e.   on 24 September 2014 she applied for a third 572 Student visa which was refused, and is the subject of this current merits review.

    Study History

18. At Hearing the applicant confirmed in oral evidence that although she was initially granted a sub-class 573 Higher Education visa on arrival in Australia the applicant has never studied at a higher education level.  Instead the applicant has enrolled in courses entirely in the VET sector. The applicant’s explained that she could not afford the higher costs of studying at the Higher Education level and thus it was her financial constraints which determined that she confine her studies entirely VET sector.

19. The Tribunal notes that it is the responsibility of a holder of a Student visa to continue to satisfy all visa criteria during the term of the visa.  By not ever studying at the Higher Education level as envisaged by her sub-class 573 visa, the applicant has been in breach of visa condition 8516 during the term of that visa. However the Tribunal can accept that she was not aware of this technical breach at the time.

20. Prior to the Hearing the applicant submitted a GTE Statement to the Tribunal, confirming that the applicant had completed the following courses, since her arrival in Australia:

    ·       English for Academic Purposes (completed February 2009)

    ·       Certificate III in Patisserie (completed May 2010)

    ·       Certificate IV in Hospitality (completed September 2010)

    ·       Diploma of Hospitality (completed December 2010)

    ·       Certificate IV in Business (completed August 2011)

    ·       Diploma of Business (completed April 2010)

    ·       Diploma of Management (completed January 2014)

    ·       Advanced Diploma of Management (completed August 2014)

    ·       Advanced Diploma Of Hospitality (completed May 2017)

21. In her GTE Statement received  by the Tribunal prior to the Hearing the applicant states that since her arrival from India she has studied in two major fields, hospitality and management, in pursuit of her stated career goal of establishing a successful restaurant business in her home country. She submitted evidence that she has successfully completed most of the courses she has enrolled in, and has done so without accruing any study gaps.  

22. While the Tribunal accepts the evidence of the applicant’s study history it is not persuaded by the applicant’s reasons for studying in Australia nor does it give weight to the applicant’s study plan wherein she states that her studies in Australia will assist her by improving her employment prospects on returning to her home country. 

23. According to the delegate’s decision, the applicant claims to have completed a Certificate III in Children Services although there is no evidence of this in her PRISMS record, nor does she repeat the claim in her visa application or in her subsequent GTE Statements submit to the Tribunal. At Hearing the applicant stated that she obtained her Childcare qualification at New Futures Training College, Footscray.  She stated that she worked at Oak Hill Family Centre, Melbourne from 2011 to December 2015.  Notwithstanding the lack of supporting evidence in respect of these qualifications, the Tribunal accepts the applicant’s oral evidence on this point.

24. What her PRISMS record and subsequent evidence do show is that the applicant has completed diplomas in business, management and advanced diplomas of management and hospitality. As discussed at Hearing, the Tribunal considers that objectively the applicant had more than sufficient skills, knowledge and qualifications to confidently embark upon her stated career path in hospitality in India or elsewhere. Her Diploma of Hospitality (completed December 2010) prepared her for employment in the hospitality sector. Her diplomas in business and management (completed in 2012 and 2014, respectively) added additional commercial and management skills to her overall work knowledge.  On top of that she had, by August 2014, also completed the Advanced Diploma of Management.

25. In fact the applicant’s last substantive (572) visa expired on 30 September 2014, a month after completing her Advanced Diploma of Management; this gave her the opportunity to pause and consider her options.  One option open to the applicant at that time would have been to act upon the personal incentives she claims to have and return to India and seek to apply the knowledge and qualifications acquired in Australia to implement the career plan that she claims has guided her studies whilst in Australia. Instead the applicant sought a further study visa which was refused and is the subject of this merits review.

26. The applicant then enrolled in an Advanced Diploma of Hospitality, commencing in November 2014 and completing the course in May 2017. The Tribunal finds it difficult to accept that the applicant’s decision in late 2014 (when her 572 visa was about to expire) to pursue further studies, was that of a genuine student intending to reside temporarily in Australia. At that time the applicant had sufficient incentives, both personal and professional, to cease her residence in Australia and return to India to embark upon her stated career goals. Her own conduct in proposing a further stay to study a course of questionable value to her future suggests that she will not yield to the incentives she has to leave Australia, but rather that she and her family intend to stay on in Australia indefinitely.

27. The Tribunal finds that the applicant’s study history does not indicate a clear career pathway and the Tribunal is not satisfied that her study history shows the academic progress of a genuine student with a genuine intention to reside temporarily in Australia.

    Value of Course to Applicant’s Future

28. The applicant’s study choices in Australia do not support a clear career plan, but suggest instead that her study selection was, and remains, motivated by migration and visa considerations. 

29. The Tribunal finds that the applicant’s enrolments since 2014 have been motivated by her wish to secure a further student visa for the purposes of prolonging the applicant’s already lengthy stay in Australia. The Tribunal finds this explanation to be more persuasive than the reason put forward by the applicant - that the two Advanced Diploma courses she most recently completed hold distinct value to complement the business, management and hospitality qualifications she had already attained.

30. Although the Tribunal accepts that some educational and career pathways require many years of study, on the evidence before it, the Tribunal is not satisfied that the applicant’s stated future plans fall into this category. Overall, the Tribunal finds it difficult to reconcile the applicant’s lengthy stay onshore with her claim that she is a genuine temporary resident. Rather, the significant period of time she and her husband have spent in Australia, coupled with her infrequent departures out of the country, suggest that her potential circumstances in Australia outweigh any incentive she may have to depart.

31. Having remained in Australia for three years longer than what the Tribunal finds a genuine student would stay, the applicant completed the Advanced Diploma of Hospitality in May 2017. The Tribunal is not persuaded that this last completed course or indeed her current enrolment (a Diploma of Leadership and Management) – add any appreciable value to her skills as they were in 2014 or further advance her stated career.

    Applicant’s Future plan

32. As mentioned, the applicant’s oral evidence and several GTE Statements indicate that her career plan is to “run a successfully (sic) restaurant business” on her return to India.  However the applicant was unable to imbue this plan with further details on the business strategy she has in mind, the set-up costs of such a venture, how it might be funded, etc. This lack of planning suggests to the Tribunal that little thought has gone into its practical implementation. As a consequence the Tribunal finds the applicant’s stated plan to be vague and inchoate.

33. On the evidence, the applicant’s claimed career aspirations appear tailored to fit with the applicant’s current, or then current, course selection in Australia.  That is not as it should be.  If the applicant has career aspirations that are claimed to lead out of Australia back to the home country, the courses selected should seek to serve those purposes, and not the other way around. 

34. The Tribunal is not persuaded that the applicant’s stated future plan of establishing a restaurant business in India is a well-developed or genuinely held business goal.

    Ties to India

35. The applicant submits that she has strong ties to India, most importantly because the couple’s 11 year old daughter is living there and being raised by her in-laws. The applicant states that her parents and two brothers are also resident in India and she shares a strong bond with them.  Her husband’s parents and family are also in India with the exception of his sister, who is an Australian citizen residing in country Victoria. 

36. The Tribunal accepts that the applicant and her husband have established family ties in India, and most importantly, their 11 year old daughter lives there with her grand-parents. Indeed being apart from their eldest daughter should give the applicant and her husband a singular personal reason to quit residence in Australia and return to India at the earliest opportunity. However the Tribunal places weight on the fact that the applicant’s youngest daughter (born in Australia in 2016) is here in Australia and is a secondary applicant.

37. The Tribunal finds that the applicant’s decision to extend her stay beyond 2014, (when the completion of her studies coincided with the expiry of her last 572 visa) in order to pursue further study of questionable value to her future, suggests that she will not yield to the array of incentives she has to leave Australia, but rather intends to stay on in Australia indefinitely.

38. The applicant claims that she has always intended to stay in Australia temporarily and she continues to have that intention.  If that is and was so, the Tribunal finds the applicant would have departed Australia to reunite with her eldest daughter and to set in motion her plan to establish a restaurant business in India, if not at the end of 2014, then certainly by the end of 2017, after completing yet another Advanced Diploma course which she claims was vital to achieving her career goals. Instead she proposed further stay and study in Australia, which if her visa is granted, would extend her stay to in excess of 10 years.

    Immigration history

39. The applicant gave evidence that her Student visa application September 2014 was refused by the Department on the basis that she did not satisfy the requirements of Schedule 5A of the Regulations.  The applicant appealed to the Tribunal and by decision of 11 November 2015 the matter was remitted back to the Department for reconsideration.

40. The delegate also found that at the time of her decision, since arriving in Australia on 20 November 2008, the applicant has been onshore for 1964 days and out of Australia for 170 days.  At Hearing the applicant submitted that her lengthy stay onshore was in order that she focus on her studies.  In the context of the rest of the applicant’s immigration history, the Tribunal gives no weight to this explanation.

41. At Hearing the applicant gave evidence that she applied for Permanent Residency in 2017, which application is still in progress.  She also sought work as a cafe manager in Ballarat, Victoria in mid-2017. The Tribunal asked the applicant if she was aware of the “skilled visa” program and paths to Permanent Residency that are available under Australia’s migration law. She stated that she was not conversant with these other options, however the Tribunal gives little weight to this statement since her actions in seeking employment in rural areas and sitting for an Academic English (PTE) test in 2016, eight years after her arrival, suggests that the applicant has some knowledge of the Australia’s ’skilled visa’ requirements.

1. The applicant’s claim that she is a genuine temporary resident is difficult to reconcile with her immigration history and length of stay in Australia. The Tribunal finds that the applicant is seeking to pursue further vocational studies not as a genuine student intending to progress academically, but in order to maintain residency in Australia while she and her family explore other avenues of obtaining long-term residency in Australia.

   Circumstances in Australia

2. The applicant and her husband have been in Australia almost 10 years; her youngest daughter was born in Melbourne in 2016 and lives with her parents. This daughter and the applicant’s husband are secondary applicants on her visa. The applicant gave evidence that her husband works part-time as taxi driver.

3. The Tribunal finds that the economic disparities between Australia and India are such that the applicant and her husband have economic and financial reasons to seek to remain in Australia indefinitely.

4. The Tribunal is not persuaded by the applicant’s stated intention to return home without delay, upon completion of her current studies, to work in hospitality and eventually open her own restaurant. The Tribunal finds that the applicant has established a working lifestyle in Australia in the almost ten years that she and her husband have been here; the Tribunal places more weight on these factors than on the applicant’s evidence that she and her family intend to return to India upon completion of her current studies.

5. Consequently the Tribunal finds that the applicant has sufficiently strong incentives to remain in Australia indefinitely and that she is using the Student visa program to maintain residence in Australia.

   Findings

6. Overall, the Tribunal finds that despite having incentives to quit residence in Australia, the applicant has, by her conduct shown that she is unwilling to depart Australia even after having acquired qualifications and knowledge through studies of her own choosing, in order to pursue a stated career plan overseas.

7. The Tribunal considers that the applicant’s actions in seeking further stay to complete an  Advanced Diploma of Leadership and Management indicate that the proffered reasons and incentives she has to return to her home country do not carry the weight she claims.  Instead her actions indicate that she would prefer to prolong her stay in Australia by proposing to study more vocational courses of limited value over and above the many VET qualifications she has already attained. For these reasons, the Tribunal discounts the weight to be placed on the applicant’s claims to have sufficient reasons and incentives to return to India. 

8. The Tribunal is not satisfied that the applicant intends to cease her residence in Australia as claimed.  Rather, for the reasons above, the Tribunal finds that if given the opportunity the applicant will continue to seek to prolong her stay in Australia indefinitely.

9. On the basis of the above, and having regard to Direction 53 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).

10. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Sub-class 580, the other sub-classes 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 sub-classes. In respect of Sub-class 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that sub-class. 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.

11. The application of each of the secondary applicants, her husband, Devinder Singh and her daughter, Bhavya Sangwan is dependent on that of the primary applicant, and was made on no other basis. Having found that the applicant does not meet the essential criteria referred to above, the refusal decision in respect of each of the secondary applicants must also be affirmed.

    DECISION

12. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Stephen Conwell
    Member