Piotrowski (Migration)

[2017] AATA 337

Piotrowski (Migration) [2017] AATA 337 (25 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stanislaw Piotrowski

CASE NUMBER:  1518007

DIBP REFERENCE(S):  BCC2015/3099732

MEMBER:Mara Moustafine

DATE:25 February 2017

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 25 February 2017 at 12:26pm

CATCHWORDS

Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – cl 572.223 – Genuine temporary entrant – English courses improving career prospects – Employment opportunity in family business –Significant ties to Poland – Joint property ownership

LEGISLATION

Migration Act 1958, ss 65, 499
Migration Regulation 1994, Schedule 1, 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, who first arrived in Australia on 24 November 2014 on a TV651 eVisitor visa, applied to the Department of Immigration for a TU subclass 572 Student visa to study Certificate III in Spoken and Written English on 23 October 2015. The delegate decided to refuse to grant the visa on 8 December 2015.

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 8 December 2015, which the applicant provided to the Tribunal with his application, 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 the applicant intended genuinely to stay in Australia temporarily. The delegate found that the applicant had not clearly demonstrated how undertaking the proposed courses in Australia would improve his career prospects; or that he had made a thorough investigation of his study options in Poland. He was also concerned that while the applicant had personal ties in Poland through his immediate family, these ties did not constitute a strong incentive to return home when considered against the lack of strong employment or economic opportunities in Poland and compared with his potential circumstances and greater economic opportunities in Australia; and noted that, in terms of his immigration history, the applicant had spent 264 days in Australia since his arrival on a visitor visa.

5. On 22 February 2017 the applicant provided to the Tribunal a detailed submission, including a statement addressing the genuine temporary entrant criterion and supporting documents, including:

   ·an offer of enrolment in Certificate IV in Spoken and Written English from the Eagle Academy Brisbane from 13/3/2017 to 11/03/2018;

   ·Confirmation of Enrolment and a completion certificate relating to his previous study –  Certificate III in Spoken and Written English at the Eagle Academy (2/11/2015-15/05/2016);

   ·supporting letters from his father in Poland and relatives in Australia, addressing, among other things, the arrangements to cover his living costs in Australia.

   ·a certificate of his co-ownership of an apartment in Gliwice, Poland; academic certificates of completion of studies in Poland (previously submitted to the Department).

   ·country information about the political and economic situation in Poland, including the OECD Economic Surveys: Poland, March 2016, reporting on its resilient economy, solid GDP growth at 3.5%, falling unemployment and a stable financial sector.

6. In his statement the applicant explained the relevance of his English studies to his future plans to pursue a career in business in the global economy; his significant home ties (including joint ownership of an apartment, immediate family and girlfriend); his reasons for wishing to study English in Australia, including the circumstance which make this the most economical and convenient option for him; his immigration history of compliance with the immigration laws of Australia and intention return to Poland after completing his studies.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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)     …

10. 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.

11. 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.

12. For the reasons that follow the Tribunal has decided to remit the matter for reconsideration.

13. The Tribunal accepts that, like many young Europeans in their twenties, the applicant took the opportunity of gap year to travel to Australia to visit relatives and pursue tourism in Australia and the region. In traveling in and out of Australia over a period of a year, the applicant complied with the terms of his multiple entry Visitor visa. The Tribunal notes that the Student visa that was refused by the delegate was the applicant’s first Student visa application. During the period of his appeal, the applicant completed a Certificate III in Written and Spoken English and now wishes to undertake the next level, a Certificate IV, for which he holds a letter of offer from the same provider.

14. The Tribunal accepts the applicant’s reasons for wishing to study English in Australia, an English speaking country, rather than Poland; and the cost advantages of studying here, where he is able to minimise accommodation and living costs by staying with relatives over another English speaking country. The Tribunal notes that the applicant has already looked into universities in Poland and the UK where he might pursue courses in business in the future.

15. The Tribunal also recognises that, in light of the importance of English in the global business economy, fluency in the language will enhance the applicant’s career prospects in Poland, which is part of the EU. Notwithstanding the delegate’s generalised reference to the comparatively greater economic opportunities in Australia, the Tribunal notes the positive economic report on Poland in the OECD’s 2016 Survey (paragraph 5 above). Furthermore, having regard to the applicant’s particular circumstances, as co-owner of a rental property, coming from a family with the financial means to support his studies in Australia and the concrete possibility of working in his aunt’s printing firm, as described in her letter of support, the Tribunal accepts that his work prospects will be greater in Poland than in Australia, where he has no work experience.

16. The Tribunal is also satisfied that, while the applicant has relatives in Australia, his ties to Poland through his direct family, girlfriend, friends, job prospects and property ownership, as well as cultural connections, as described in his statement, give him significant incentive to return to his country. The Tribunal notes that over the last two years he has visited Poland twice for periods of two months each.

17. 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).

18. 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

19. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the 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.

    Mara Moustafine
    Member