Pratap (Migration)

[2020] AATA 2812

Pratap (Migration) [2020] AATA 2812 (30 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jotika Mohini Lata Pratap

CASE NUMBER:  1830993

DIBP REFERENCE(S):  BCC2018/3241399

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         30 April 2020 at 10:51 am (VIC time)

DATE OF WRITTEN RECORD:                27 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 27 May 2020 at 10:45pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–   genuine temporary entrant criterion not met– economic ties with Australia–no strong incentive to return to her home country – current employment history – a significant incentive to remain in Australia – regression in course studies– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 October 2018 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 30 April 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant’s name is Ms Pratap. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 October 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under section 65 of the Migration Act.

4. The applicant applied for the visa on 28 August 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212(a) of schedule 2 to the Migration Regulations 1994.

5. The applicant appeared before the Tribunal on 30 April 2020 to give evidence and to present arguments. 

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

7. The criteria for a subclass 500 student visa are set out in part 500 of schedule 2 to the Migration Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. The issue in the present case is whether the applicant is a genuine temporary entrant for entry and stay in Australia as a student.

8. In considering whether an applicant satisfies clause 500.212(a) the Tribunal is to have regard to Direction 69 which provides guidelines for assessing the temporary genuine entrant criterion for student visa and student guardian visa applications. The Direction was attached to the applicant’s invitation to attend the hearing and requires the Tribunal to have regard to a number of factors, including the applicant’s circumstances in their home country, circumstances in Australia, the value of the course to the applicant’s future, the applicant’s immigration history, and any other relevant matter.

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. The applicant in this case is a woman from Fiji.  She initially arrived in Australia on 17 July 2011.  Since that date, evidence before the Department indicated that the applicant had only departed Australia five times subsequently. 

11. On 28 August 2018, three days before the expiry of her TU 500 Higher Education Sector student visa, the applicant lodged their current application for the visa that is the subject of this review.

12. The applicant is currently enrolled in an Advanced Diploma of Leadership and Management, which shall extend her stay in Australia until September 2021 bringing her stay onshore to approximately 12 years.

13. At the time the applicant lodged her application for a student visa the subject of this application she proposed to study an Advanced Diploma of Banking Services Management.  The applicant gave evidence at hearing that she did not complete this course.

14. The applicant has whilst being onshore held several student visas and other associated visas.  The applicant was granted their initial TU 573 Higher Education Student Sector visa on 6 July 2011.  The applicant successfully completed a Bachelor of Accounting from July 2011 to December 2013.  The applicant then applied for a further VC 485 Temporary Graduate visa, which is a post-study work visa, on 12 February 2014, which was granted on 26 May 2014.  The purpose of this visa was to allow the applicant to utilise their Bachelor of Business in Accounting skills and knowledge and gain work experience in Australia.

15. The applicant was then granted a further TU 573 Higher Education Sector visa on 14 December 2015.  On that visa the applicant successfully completed a Master of Professional Accounting from 14 March 2016 to 6 November 2017.  The applicant was then granted another TU 500 Higher Education Sector student visa on 27 October 2017 followed by another Higher Education Sector student visa granted on 28 February 2018.

16. The applicant has also subsequently completed another Masters degree, being a Masters of Business Administration, which she undertook between 12 March 2018 to 31 July 2018.  By all accounts the evidence before the Tribunal indicates that the applicant is a highly educated and intelligent woman. 

17. The applicant at hearing informed the Tribunal that it is now her intention to study an Advanced Diploma of Leadership and Management, which commenced in April of this year and which is proposed to conclude in September 2021.

18. In support of her hearing today the applicant has submitted a response to request for information.  The Tribunal has had regard to that material and to the applicant’s evidence at hearing today. 

19. Before arriving in Australia the applicant undertook a Diploma in Business Studies and a Certificate in Advanced Business Accounting in 2001 and 2007 respectively.

20. Whilst being in Australia the applicant has undertaken successfully a Bachelor of Accounting, a Masters in Professional Accounting, a Masters in Business Administration, and she partially undertook a Diploma of Banking Management.  She now proposes to undertake, as I have set out, an Advanced Diploma of Leadership and Management.

21. The Tribunal has had regard to the applicant’s circumstances in her home country.  The applicant’s family members are in her home country.  She has returned to her home country five times for a total of approximately three months since arriving in Australia in mid-2011 to visit her family.  In her response to request for information the applicant contends that she owns land in Fiji to the value of $37,000, however, there is no objective evidence before the Tribunal to establish that contention.

22. The Tribunal acknowledges that the applicant’s family, although not dependent family members, reside in her home country, however when considered against her potential economic circumstances in Australia, the Tribunal is not persuaded that thee family present as a significant incentive to return home.

23. The applicant has given evidence of her work history and economic ties to Australia.  She contended in her response to request for information that she has worked as an accountant at Tax Accounting and Professionals between September 2013 to March 2019, earning a salary of $20,000 per annum whilst working part-time.  From April 2019 until the date of this hearing the applicant has been working part-time at Atrim Resort as an accountant earning $30,000 per annum.

24. The applicant has stated in her response to request for information that she has chosen this particular course in Australia because of the quality of education and global recognition as to the reason why she is not studying in her home country.

25. The Tribunal is unable to find that the applicant has acceptable reasons for not studying in her home country as she has failed to provide any objective evidence of any research she has undertaken into the availability of the course in her home country notwithstanding that the Tribunal acknowledges she may wish to study in Australia generally.

26. The Tribunal finds that the applicant does not have significant incentives by way of family ties to return to her home country demonstrated by the fact that she has been in Australia since 2011 and has returned home only a handful of times to visit her family.  In those circumstances it would suggest to the Tribunal that they do not provide a significant incentive to return home there at the conclusion of her studies.

27. The Tribunal finds that the applicant has not objectively demonstrated that she has significant financial ties or any financial ties to her home country notwithstanding that it acknowledges the applicant contends that she owns land in her home country.  The Tribunal notes that there is no objective evidence offered to substantiate the applicant’s claims as to financial ties, however in any event, the applicant’s alleged financial ties to her home country are not outweighed by the economic incentive the applicant currently has to remain in Australia, which is demonstrated by her extensive and impressive work history whilst remaining onshore since 2011.

28. The Tribunal finds that the applicant’s strong employment history and her current employment history present as a significant incentive to remain in Australia on a more permanent basis.

29. The Tribunal, however, places significant weight on the fact that the applicant has been in Australia since 2011 and has undertaken a significant number of courses in accounting and administration at the Bachelor and Masters degree level and she now proposes to regress academically to undertake a course in an Advanced Diploma of Leadership and Management, as being behaviour which is not consistent with a genuine student.

30. The Tribunal informed the applicant that her regression in course studies might be a reason or part of the reason for affirming the decision under review and invited the applicant to respond.  The applicant informed the Tribunal that she did not consider the undertaking of the Advanced Diploma of Leadership and Management to be a downgrading in her studies.  She informed the Tribunal that many students these days graduate from school and undertake Masters degrees and that it was important to her to have a qualification that demonstrates that she has management skills for the purpose of increasing her employment prospects in the future.

31. While the Tribunal accepts that individuals may choose different areas of study on the basis of a change of decision as to career course, the Tribunal in these particular circumstances cannot be satisfied that the current course in which the applicant is enrolled will further assist her career development or earning potential in view of the high level Bachelor and Masters degree qualifications that she already holds, particularly when that fact is coupled with the fact that she has extensive work experience as an accountant.  And on that basis the Tribunal can’t be satisfied that a further vocational level degree will improve her employment prospects or remuneration prospects in the circumstances.

32. The Tribunal has had regard to the applicant’s potential circumstances in Australia.  The Tribunal notes that the applicant’s evidence at hearing was that her cousin is living in Australia.  Her cousin was most unwell in 2019 with a serious illness and that is the reason why the applicant was not studying in 2019.  She candidly informed the Tribunal that on account of her cousin’s illness that caused a gap in her studies at that time when she had to attend to that particular family member.

33. The Tribunal finds that the existence of a family member in Australia may provide an incentive coupled with the applicant’s employment circumstances in Australia to remain in Australia on a more permanent basis.  The applicant has enrolled in multiple courses, as I have set out, since 2011.  She is now seeking to regress academically with a vocational level course.

34. The Tribunal has had regard to the applicant’s reasons in her response as to why she chose her particular education provider in Australia.  The applicant stated that the university was chosen based on reviews and recommendations by her friends.

35. The Tribunal is unable to conclude that the applicant has undertaken any significant research into her proposed course, course contents, education provider or educational objectives, which is not the behaviour that is consistent with that of a genuine student.

36. Due to the nature and the number of courses the applicant has undertaken to date and the length of time she has been in the country the Tribunal is of the view that the applicant is enrolling now in a lower level course with the primary intention of seeking to circumvent the intention of the student migration program and remain in Australia on a more permanent basis.

37. The Tribunal gives significant weight to the fact that the applicant has demonstrated an ongoing successful work history in Australia as a motivating factor which may see her seek to remain in Australia on a more permanent basis.  And whilst it is not, the Tribunal acknowledges, uncommon for applicants to re-educate themselves or make a change in study plans or work pathways the Tribunal finds that it is not consistent with the behaviour of a genuine student to seek to change pathways to the extent that the applicant has by her chosen course in leadership and management, which is a substantial regression academically from the qualifications that she already holds.  Further, it has not been objectively demonstrated how the downgrading in the applicant’s course will be beneficial to the applicant in the future to the extent that would outweigh the financial commitment involved in doing further study.

38. The Tribunal finds that the applicant is an educated and intelligent woman with a successful and demonstrated work history in her chosen fields of study over many years.  The Tribunal finds that the applicant is more than qualified to return to her own country and seek out employment in her chosen field in accordance with her stated objective.

39. The Tribunal has had regard to the value of the course to the applicant’s future and it acknowledges the applicant’s statement that she wishes to obtain managerial skills in the current course she is undertaking for the purpose of obtaining a better job in her home country.

40. The Tribunal acknowledges the applicant’s statement that she would like to look for work as an accountant in a corporate firm in a senior or top level role.  The Tribunal acknowledges the applicant’s contention that she needs leadership and management skills to obtain employment in a large corporate firm.  In the circumstances the Tribunal acknowledges the applicant’s contention that the applicant believes she will earn approximately $50,000, that is Fijian dollars, as a result of the qualifications she seeks to undertake presently.

41. However, based on all that evidence the Tribunal cannot be objectively satisfied that the applicant has demonstrated the value of the proposed course to her future.  The Tribunal is unable to accept the applicant’s assertions as to the value of the course to her future as she has not provided any objective evidence as to how the completion of her current Diploma level course will add value to her earning capacity given the high level Bachelor and Masters degrees she already holds in the accounting and business areas.

42. Having regard to the applicant’s study history the applicant’s current course is a regression from her Bachelor and Masters degrees that she already holds and the Tribunal is not satisfied that the applicant has demonstrated a completion of her current nominated course will improve her remuneration prospects in her own country to an extent that is outweighed by the current cost of completing the course.

43. The Tribunal notes that the applicant has extensive and high level accounting and business qualifications.  She has extensive work experience as an accountant and as such the Tribunal is of the view that objectively speaking the applicant has demonstrated that she is more than qualified to return to her home country and obtain employment in a large corporate firm in accordance with her stated objective.

44. I have already set out the applicant’s immigration history as set out above.  The length of time the applicant has spent in Australia coupled with her extensive and impressive work history as an accountant throughout her time in the country leads the Tribunal to the conclusion that the applicant is motivated to remain in Australia for purposes other than study in the circumstances.

45. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily recognising the possibility that this may change over time to utilise lawful means to remain in Australia. 

46. Although the applicant has provided information to the Tribunal clearly demonstrating that she has been a successful student to date considering all the circumstances and all the evidence before the Tribunal the Tribunal does not accept the applicant’s claims to be those of a genuine temporary entrant.

47. On the basis of the above the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and accordingly the applicant does not meet clause 500.212(a).

48. Given the above findings the Tribunal finds that the grant for a subclass 500 student visa are not met.  The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    DECISION

    The Tribunal affirms the decision under review.

    Vanessa Plain
    Member