Purdasy (Migration)

[2018] AATA 908

Purdasy (Migration) [2018] AATA 908 (28 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Neelum Purdasy

CASE NUMBER:  1609879

DIBP REFERENCE(S):  BCC2015/3320037

MEMBER:Richard West

DATE:28 February 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 28 February 2018 at 9:30am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether applicant genuinely intends to stay in Australia temporarily – Studies undertaken of limited benefit – Studies undertaken for purpose of maintaining residency – Applicant’s ties to homeland – Weak ties to homeland

LEGISLATION

Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 1, Item 1222, Schedule 2, cls 572.223(1)(a), 573.223(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 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 applied to the Department of Immigration for the visa on 10 November 2015. The delegate decided to refuse to grant the visa on 10 June 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 because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 30 January 2018 and 1 February 2018 to give evidence and present arguments. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, a Bachelor of Business, the relevant subclass in this case is Subclass 573 Higher Education Sector.

7. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(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)     …

8. 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.

9. 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.

10. The Tribunal is satisfied that the applicant had a proper opportunity to present her case both at the hearings on 30 January 2018 and 1 February 2018 and in written submissions filed with the Tribunal before the hearing and subsequently. 

11. The applicant appeared at the hearing on 30 January 2018 and gave evidence that she had applied for enrolment at Holmes College to do a Bachelor of Accounting but she did not have a certificate of enrolment or a written offer of enrolment in relation to that course or any course of study that is a principal course of a type specified for the subclass of visa sought at the time of application.  The applicant was granted a short adjournment to enable her to contact her educational consultant to obtain written confirmation that she was enrolled or had an offer of enrolment in the Bachelor of Accounting course. At the resumption of the hearing the applicant produced her mobile phone to the Tribunal upon which was displayed a copy of an application for enrolment in a Bachelor of Accounting course at Holmes College dated 25 January 2018 sent to her by email from her agent.  The applicant confirmed that she did not have any documentary evidence that the application had been accepted by Holmes College but her agent had said that he expected it in a day or so.  The hearing was adjourned to 2.30 pm on 1 February 2018 to provide the applicant with an opportunity to provide confirmation to the Tribunal that she was enrolled or had an offer of enrolment in the Bachelor of Accounting course.

12. The hearing resumed at 2.30 pm on 1 February 2018. The applicant produced to the Tribunal a Student Letter of Offer and Student Acceptance Agreement issued by Acknowledge Education offering the applicant a place in a Bachelor of Business course to commence on 19 March 2018 and concluding on 31 December 2010.  The student acceptance was signed by the applicant and dated 31 January 2018 but the offer stated that acceptance was conditional on the payment of a deposit of $4,350.  The applicant gave oral evidence that she had been accepted and her enrolment was confirmed by the Institute. 

13. On the basis of the documents provided at the hearing on 1 February 2018 the Tribunal was satisfied that the applicant had a valid offer of enrolment, although in a course appropriate to the Higher Education Sector and accordingly the application is to be regarded as an application for a Subclass 573 Higher Education Sector visa. Subsequent to the hearing the applicant provided to the Tribunal a letter from Acknowledge Education dated 7 February 2018 confirming her enrolment as a full-time student in the Bachelor of Business course.

14. The applicant is a citizen of the Republic of Mauritius.  She first entered Australia on 10 October 2008 having been granted a Student Class TU 572 visa off shore on 23 September 2008.  The visa was valid until 13 November 2010.  Since arrival the applicant has held either a student visa or associated bridging visa.   There is no evidence that the applicant has not complied with her visa conditions throughout this period. 

15. Upon the resumption of the hearing on 1 February 2018 the applicant was advised in accordance with s.359AA of the Migration Act that the Tribunal intended to put information to the applicant that without explanation was something that the Tribunal considered would be a reason, or part of the reason for affirming the decision under review. The information was the applicant’s Provider Registration and International Student Management System (PRISMS) record. It was explained to the applicant that the information was relevant to the review because it may lead the Tribunal to form the view that it documents a long history of unrelated courses, courses that were not started or that were started and shortly after cancelled and that the consequences of the information being relied on may be that the Tribunal formed the view that the applicant is not a genuine student and her visa should be refused. The applicant was given a copy of the PRISMS record and an opportunity to read through it and offered additional time before responding to the document and the Tribunal’s questions related to it.

16. Based on the applicant’s responses to the Tribunal’s questions regarding the PRISMS record and the other evidence provided to the Tribunal by the applicant the Tribunal makes the following findings in relation to the applicant’s study history:

    ·Prior to arriving in Australia the applicant had completed post-secondary courses in Mauritius in Effective Human Resource Management (16 November 2005), The Practice of Human Resource Management (13 June 2006) and a computer course in software applications.

    ·Upon arrival in Australia the applicant initially enrolled in an Advanced Diploma of Hospitality Management course.  The enrolment was cancelled on 13 October 2008.

    ·The applicant completed a Certificate III in Frontline Management leading to a Diploma of Management on 5 February 2012.

    ·The applicant enrolled in a Bachelor of Business course on 15 March 2012.  The enrolment was deferred on 25 May and 23 November 2012 on compassionate grounds following the death of the applicant’s mother in Mauritius. The course was cancelled due to the non-payment of fees on 29 August 2013.

    ·The applicant completed an Advanced Diploma of Business course from 23 September 2013 to 8 September 2014 (the applicant provided a certificate of completion dated 6 February 2018 subsequent to the hearing on 1 February 2018).

    ·The applicant studied for a Certificate IV in Accounting from 1 September 2014 to 10 September 2015, but no documentary evidence was provided as to the completion of the course.

    ·The applicant enrolled in a Diploma of Marketing leading to an Advanced Diploma of Marketing on 25 January 2016.  The enrolment was cancelled on 19 October 2016 due to the non-payment of fees.

17. The Tribunal has considered the reasons advanced by the applicant for undertaking these courses in Australia and accepts that they are sound reasons.

18. The Tribunal is satisfied that the applicant gave consideration to study options in her own country.  She gave evidence that she had considered whether to study Human Resource Management in Australia or Mauritius and had decided that it was better to study the specific courses in Mauritius because of the different employment laws and to do the general courses such as management and accounting in Australia.

19. The applicant was asked to explain why her enrolment in the Advanced Diploma of Hospitality Management had been cancelled in 2008.  She stated that she had been enrolled in the course by her agent whom she had asked to find her a course in Human Resource Management.  She mistakenly thought the course was in Hotel Management but soon realised that it was essentially a cookery based course and after 5 or 6 months she decided it was not suitable for her and she withdrew from the course.

20. The applicant was asked to explain why she had not completed her Bachelor of Business course in 2012.  She explained that her mother passed away in April 2012 (a death certificate was provided to the Tribunal) and that this necessitated her returning to Mauritius. As a result of her associated grief and distress she deferred her course and eventually the course was cancelled because she did not pay her fees.  The applicant admitted that she did not make any significant progress in this course.

21. The applicant was asked to explain why she had not continued with her studies in the Advanced Diploma of Marketing course which she started on 25 January 2016.  She stated that she studied in the course for 6 months until her application for a TU 572 visa was refused by the Department (10 June 2016) when she ceased study leading to the cancellation of her enrolment on 19 October 2016.  She stated that she had enrolled in the course at the suggestion of her agent solely for the purpose of obtaining a visa and she did not have any real interest in marketing.

22. The applicant further stated in her evidence that she has not studied since withdrawing from the marketing course in June 2016. She claims to have spent the time working on her personal development, meditating and reading.  She has some casual cleaning work and lives rent free with Mauritian friends.  She claims to be supported financially by her father’s sister who lives in London.

23. Direction 53 requires the decision maker to consider whether the applicant has used the student visa primarily for maintaining ongoing residence and/or to circumvent the intentions of the migration program.  The Tribunal is concerned with several aspects of the applicant’s explanation for the incomplete aspects of her study history.  Her withdrawal from her hospitality course in 2008 indicates a lack of genuine interest in her course of study.  She accepted enrolment in the course without properly understanding what it involved. The Tribunal accepts that the applicant’s failure to complete the Bachelor of Business course in 2012 was affected by her mother’s death and the Tribunal gives little weight to this matter.  However, the Tribunal gives great weight to the applicant’s admission that she enrolled in a marketing course in 2016 solely to obtain a visa and that she discontinued the course as soon as her application was refused by the delegate.  This conduct demonstrates a lack of genuineness on the applicant’s part and strongly suggests that she has used the student visa program to maintain residence rather than as a means to enhance her employment prospects in her home country.  The Tribunal also puts significant weight on the fact that the applicant did not undertake any study between June 2016 and the present time and that she applied for enrolment in her current course at the very last minute before the Tribunal hearing commenced.

24. Direction 53 also requires the Tribunal to have regard to whether the student is undertaking a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. In this regard the Tribunal is not satisfied that the applicant’s current enrolment in a Bachelor of Business course is appropriate.  The applicant described the course in her evidence as a degree in accountancy and insisted that she needed to study accountancy in order to improve her job prospects in Mauritius as a Human Resource Manager in the hotel industry.  The Tribunal expressed reservations about the importance of an accountancy degree to a career in human resource management and offered the applicant an opportunity to provide further materials to substantiate her view subsequent to the hearing.  In response the applicant provided a course outline for the Bachelor of Business course in which she is enrolled and the Tribunal notes that far from being an accounting degree as the applicant claimed, the course has only a minor accounting content and is in substance a general business degree.  The Tribunal suspects that the applicant has not properly considered the course content of the course and has enrolled at her agent’s suggestion at the last minute just to satisfy the enrolment prerequisite for the grant of a student visa.  The Tribunal notes that this is consistent with the applicant’s explanation for not proceeding with her initial hospitality course in 2008 when she mistook it for a hotel management course and also her admission that in 2016 she enrolled in a marketing course in which she had no interest just to obtain a visa at the suggestion of her agent.  Having regard to all of these matters the Tribunal finds that the applicant’s current course is not intended to assist her in obtaining employment or improving her career prospects in her home country.  Rather she has enrolled in the course for the purpose of satisfying the enrolment prerequisite for the Tribunal proceedings with the intention of obtaining a visa to remain in Australia.

25. Having regard to all of these matters, the Tribunal concludes that the primary applicant has enrolled in her current course for the purpose of maintaining ongoing residence in Australia contrary to the intention of the student visa system.   The Tribunal attaches significant weight to this factor.

26. Direction 53 also requires the Tribunal to consider whether the primary applicant’s ties to her homeland provide an incentive for her to return and whether her ties to Australia provide an incentive for her to remain in Australia.  The applicant gave evidence about both matters.

27. [Paragraph removed].

28. The applicant also stated in her evidence that since her mother passed away in April 2012 she has no personal connections with people in Mauritius other than one friend.  She said that she has no attachment to her brother who still lives in Mauritius and that she does not talk to her cousins.  She said that no-one in Mauritius knows she is in Australia and she has not had any contact with anyone there since she came to Australia.  She said she has not been back to Mauritius for over 4 years since her mother’s death.  She said she had bad memories of Mauritius, although she is used to the culture and it would be easier for her to gain experience there than in Australia. The principal attraction for her to return to Mauritius that she identified in her evidence was the job opportunities for her in the hotel industry and particularly in human resource management.  She said she was attracted to the secure employment in Mauritian hotels which are generally semi-government owned.

29. The applicant did not paint an encouraging picture of her life in Australia although she did say that it had been a positive environment for her and she had been able to build her self-esteem and overcome her fears while she was here.  She said she shared a house with friends who did not charge her rent and she earned money working as a part-time cleaner.

30. [Paragraph removed].

31. The Tribunal has considered the economic circumstances of the applicant in Australia and Mauritius.  The applicant does not appear to have any financial resources in Australia nor did she give any evidence of having assets in her home country.  In the circumstances and in the absence of any evidence the Tribunal gives no weight to this factor. 

32. Similarly the Tribunal has no evidence before it to meaningfully assess in quantifiable terms a comparison between the remuneration the applicant could expect to receive in Australia and in Mauritius and it gives no weight to this factor.

33. There are no issues of military service or civil unrest relevant to the applicant’s circumstances.

34. On the basis of the above, 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.573.223(1)(a).

35. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. With the exception of Subclass 580, the other subclasses 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 subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. 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.

    DECISION

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

   Richard West
   Member