PABLA (Migration)

[2018] AATA 3761

PABLA (Migration) [2018] AATA 3761 (9 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs HARBHAJAN KAUR PABLA
Mr PARMINDER SAINI

CASE NUMBER:  1709017

HOME AFFAIRS REFERENCE(S):           BCC2017/939365

MEMBER:Stephen Witts

DATE:9 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 09 August 2018 at 3:28pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – Duration of study – Applicant’s economic circumstances – Generic courses – Changes in study trajectory – Number of low level courses – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

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 and Border Protection on 12 April 2017 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 9 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because a delegate was not satisfied but the applicant genuinely intends to stay in Australia temporarily.

4. The applicants appeared before the Tribunal on 7 August 2018 to give evidence and present argument. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant genuinely intends to stay in Australia temporarily.

   Genuine applicant for entry and stay as a student (cl.500.212)

7. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

8. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian 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.

9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. At the hearing the Tribunal had a discussion with the applicant regarding issues for consideration outlined in Ministerial Direction 69.

    Background

11. According to the Delegate’s decision record, supplied by the applicant, the applicant initially arrived in Australia on 24 May 2009 after being granted a Student visa (TU572). According to the delegate since the applicant’s arrival here she has held either a student visa or associated bridging visa. On 12 April 2017 the delegate refused the applicant’s application for a student visa.

12. According to the applicant she is currently enrolled to study a Bachelor of Commerce which began on 20 February 2017 and is due for completion on 25 August 2019.

13. According to the applicant and to the applicant’s PRISMS record (reviewed with the applicant in accordance with section 359AA) the applicant has been enrolled in the following courses since her arrival here in 2009: a Certificate III in Hairdressing finished in 2010, a Certificate IV in Hairdressing finished in 2010, a Diploma of Hairdressing Salon Management finished in 2011, a Certificate IV in Business finished in 2011, a Diploma of Management finished in 2012, a Certificate IV in Project Management finished in 2013, a Diploma of Project Management finished in 2013, a Diploma of Business finished in 2014, a Certificate IV in Marketing finished in 2015, a Diploma of Marketing finished in 2015, and an Advanced Diploma of Marketing finished in 2016.

    Circumstances in home country

14. The applicant stated that she completed high school back in her home country and did not have any other qualifications prior to coming to Australia. She stated that she came here because she “wanted to make my future better and go home and make my future better”. She also stated that she “wanted to study here but also back at home”. The applicant did not give any other specific reasons for her stay and study here in Australia. The Tribunal is concerned by this evidence as no other reasons were given by the applicant as to why she wanted to come to Australia to study hairdressing almost 10 years ago and why she is still studying here.

15. The applicant stated that she has her parents, three sisters and a brother back in her home country that she remains in regular contact with. The applicant did not indicate she was having any problems maintaining her personal relationships from here in Australia, and the Tribunal attaches no weight to this as evidence of an intention to return.

16. There is no significant relevant evidence regarding the following factors indicated by Ministerial Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, political circumstances in the home country, civil unrest in the home country, and the applicant’s circumstances in the home country relative to others in that country.

    Circumstances and study in Australia and the value of the proposed course to the applicant’s future

17. The applicant stated that she lives here in Australia with her husband who is on a dependent visa. She stated that she returns home most years but has not travelled anywhere else outside Australia.

18. The applicant stated that she rents in Woodville in Adelaide with her husband. She stated that she works as a cleaner for 20 hours per week earning $1000 per fortnight and that her husband was working in a warehouse and earning approximately the same amount of money. She stated that her parents, and her sister in the USA, were assisting her in paying for her studies. The Tribunal is concerned by this evidence as the applicant’s economic circumstances here in Australia would present as a significant incentive for the applicant not to return to her home country.

19. Adopting the procedure of the Act 359AA, the Tribunal read out the following statement to the applicant:

20. I’d like to talk to you about your study history and to do that I’m going to put to you formally under the law, a piece of information that I have. The information that I will put to you is something I consider would be the reason, or part of the reason, for affirming the decision under review.

21. I have before me, Provider Registration and International Student Management System records, otherwise referred to as PRISMS. This PRISMS record from a database that is kept by the education providers and details all of your certificates of enrolments, the dates that you remained enrolled and the outcome of the courses.

22. This information is relevant to the review because it may lead me to form the view that it documents a history of unrelated courses. It could list many courses that weren’t started, or that were started and shortly thereafter cancelled.

23. The consequence of this information being relied on by me may be that I form the view that you do not meet the requisite criteria, more specifically that you are not a genuine student. This may mean that you are refused to visa which you have applied for.

24. You may comment on or otherwise respond to this information. You may wish to ask for additional time to comment on or respond to the information.

25. The applicant stated that she did not require any more time and was able to discuss her study history with the Tribunal at this point.

26. When asked by the Tribunal to explain her study history here since 2009, a period now of almost 10 years, the applicant explained that she had originally intended to come here and study hairdressing. She then stated that after her hairdressing courses she then decided she wanted to acquire business and management knowledge which would allow her to return home to start a hairdressing business back in her home country. When asked by the Tribunal why she then went on to study project management courses after her business courses once her hairdressing courses were completed the applicant stated that she did not know why she did these courses other than to say she wanted to study. When asked by the Tribunal why she then went on to study several marketing courses the applicant also stated that she thought these courses would assist her in opening her hairdressing business back in her home country. The Tribunal is concerned by this evidence as the applicant was unable to explain why, after having studied several hairdressing courses, she then went on to study seven other generic management, business, and marketing courses in the eight years since she had actually finished her hairdressing qualifications. The applicant was unable to explain why she was doing these courses other than to say that she “needed more knowledge in business and management to open a hairdressing salon”.

27. The Tribunal finds that the applicant was unable to give any specific coherent response or set of reasons to explain nearly 8 years of study here in Australia. The Tribunal finds that this is evidence that the applicant is using the student visa system to maintain residence in Australia.

28. When asked by the Tribunal why the applicant was now studying for a Bachelor of Commerce after having completed 10 low-level VET courses in hairdressing, project management, business, and marketing, the applicant stated that she wished to go back to her home country with a good degree as this would assist her in pursuing her hairdressing business. The applicant was unable to explain what current skills she is acquiring in her bachelor level course that would assist her in this endeavour after having finished so many other business and management courses since 2009. The Tribunal finds that the applicant is using the student visa system to circumvent the migration program and does not genuinely intend to stay in Australia temporarily.

29. The applicant in her statement to the delegate (delegates file Folio 46-47) dated 3 March 2017 stated that at that time she was studying for a Bachelor of Commerce and that would assist her in giving her a sound background in business. Her statement however did not address her many enrolments, the many changes that she made to her study trajectory, and the reasons why she had been here for a number of years studying low-level courses in areas such as hairdressing. The Tribunal is concerned by this evidence as the applicant did not make any real attempt to outline a coherent study plan. The Tribunal finds that this is evidence that the applicant is using the student visa system to maintain residence in Australia.

30. The applicant in her statement to the Tribunal (AAT file Folio 52) stated that she has an intention to go back to her home country as she was missing her parents. This statement however also did not address the many enrolments the applicant has made here in Australia, the significant amount of time she has been here, now almost 10 years, and the applicant now is intending to stay and study until August 2019. The Tribunal finds that this is evidence that the applicant is using the student visa system to circumvent the requirements of the migration program.

31. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

    Conclusion on cl.500.212

32. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

33. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

34. In regard to the secondary applicant the Tribunal finds that he is not the member of a family unit in accordance with cl.500.311.

    DECISION

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

    Stephen Witts

    Member