Ranaweera Mudiyanselage (Migration)

[2018] AATA 1038

Ranaweera Mudiyanselage (Migration) [2018] AATA 1038 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Pradeepika Priyadarshani Kumari Ranaweera Ranaweera Mudiyanselage
Mr Kaminda Yapa Bandara Yapa Mudiyanselage
Ms Omeshi Kumari Yapa Yapa Mudiyanselage

CASE NUMBER:  1619159

DIBP REFERENCE(S):  BCC2015/2218425

MEMBER:P. Wood

DATE AND TIME OF

ORAL DECISION AND REASONS:          2 March 2018 at 2:21 pm (VIC time)

DATE OF WRITTEN RECORD:                15 March 2018

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decisions under review.

Statement made on 15 March 2018 at 4:00pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – First named applicant’s study history comprises of a series of unrelated courses – Primary and secondary applicant work in Australia – Family members in Australia – Economic incentive to remain in Australia – Intend to continue to stay in Australia

LEGISLATION
Migration Act 1958, s 359AA
Migration Regulations 1994, Schedule 2 cl 573.223

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 28 October 2016 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 573 visas under the Migration Act 1958 (the Act).

2. At the hearing on 2 March 2018 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. You applied for a temporary student visa, namely a Class TU visa, on 3 August 2015. You were refused that application for a temporary student visa by a delegate of the then Minister for Immigration on 28 October 2016. You provided a copy of the delegate's decision record to this Tribunal with your application to this Tribunal. The delegate refused your application on the basis that you did not meet the genuine temporary entrant criterion contained in clause 573.223(1)(a). You appeared, along with your husband, before the Tribunal this day to give evidence and present arguments in support of your review application.

4. The Tribunal sent to you numerous invitations to appear before it on previous occasions.  Several medical certificates were provided to the Tribunal, and ultimately the Tribunal set down today's date for a hearing.  Attached to the Tribunal's invitation to attend a hearing of this kind is a copy of Ministerial Direction 53.  Ministerial Direction 53 relates to the genuine temporary entrant criteria for student visa applications.  You responded to the hearing invitation, and the Tribunal takes it that you also received a copy of Ministerial Direction 53.  In any event, you confirmed to the Tribunal that you were in possession of a copy of the Delegate's decision record and Ministerial Direction 53 is referred to therein. 

5. Of course, you are from Sri Lanka and you have been here in Australia since 2010.  There is nothing particular for the Tribunal regarding the following factors indicated by direction 53, and the Tribunal makes no finding against you in relation to the following factors:  any potential military service requirements in Sri Lanka, economic or political circumstances in Sri Lanka, including civil unrest or the like.  You were first granted a student visa to allow you to come to Australia when you were offshore on 12 August 2010.  That initial visa was valid until 1 September 2013.  Following the grant of this visa you soon thereafter arrived in Australia on 5 September 2010.  You told the Tribunal that you have returned home for short trips on three occasions since coming to Australia.

6. At the time that you came to Australia you wished to study a Diploma of Graphic Design and, you claim, return back to Sri Lanka.  Since arriving in Australia you have completed a Diploma of Interactive Digital Media, a Master of Information Technology, a Master of Management in Human Resources, and a Certificate III in Cookery.  You have also completed a Diploma of Marketing.  In fact, when you submitted this visa application to the Department you had proposed to study the Diploma of Marketing.  Indeed, you indicated that you wished, at that point, to continue on to complete an Advanced Diploma in Marketing.  That is, it was in relation to your proposed study of marketing where the Department refused you the grant of a further student visa.

7. Prior to coming to Australia you completed a Bachelor of Arts degree in Sri Lanka.  You told the Tribunal that you undertook this course through an external provider.  You told the Tribunal that you have studied "so many things".  You told the Tribunal that back in Sri Lanka you also completed a one year English and teaching course.  As I have already said, you, however, arrived in Australia in 2010.  Soon after coming to Australia you, according to your GTE statement provided to the Department, enrolled in a Master's degree in human resource management.  In the GTE statement provided to the Department you say that this occupation was in high demand in Sri Lanka and you go on to highlight that you successfully completed this postgraduate level qualification in 2012. 

8. In the GTE statement provided to the Department you go on to claim that your husband was keen for you to complete a master's degree in information technology because information technology has "a good career in many countries", and you thereafter enrolled in a master's degree in information technology.  In the statement, you highlight that you completed this course in 2015.  According to the GTE statement, after completing the Master of Information Technology you decided to go back and start a new information technology business in Sri Lanka.  However, at the time the market conditions were not, in your view, favourable for IT and start-up companies.  It was in these circumstances that you claim, according to the statement, that your husband then highlighted to you that your bachelor degree and your master's degrees in Australia both lack a marketing component.

9. The Tribunal questioned you at some length regarding your plan for the future.  The Tribunal also questioned your husband concerning your plans for the future and your husband echoed your claimed plans.  You told the Tribunal that your husband has a spice-related farming business back in Sri Lanka where he employs around 20 people.  You told the Tribunal, and the Tribunal accepts, that this business is presently operated by a family member of his whilst the two of you continue to reside in Australia.  When the Tribunal questioned you further in relation to your plan for the future you were initially somewhat vague in your replies, but you ultimately settled upon a claim that you wish to return to Sri Lanka to develop a cooling system to preserve foods for the spice-related farming business. 

10. When the Tribunal questioned you as to why you are presently enrolled in a Certificate IV in Cookery your stated plan seemed to change.  You said that, in addition to your previous claimed plan of hoping to develop a cooling system to preserve food, you also wished to open a café.  The Tribunal notes that you have completed, already, a Certificate III in Cookery, and that you are presently completing the Certificate IV at RTO Connect Pty Ltd trading as Australian Study Link Institute. 

11. You told the Tribunal that the quality of education offered in Australia is better than the quality of education that you would be able to achieve back in Sri Lanka.  The Tribunal accepts that Australian education providers are generally highly recognised, but has concerns in relation to your continued desire to study here and remain in Australia.

12. I now turn to your circumstances in your home country.  The Tribunal has already outlined above your previous study in Sri Lanka and your claimed reasons for wanting to pursue study here in Australia.  In relation to your personal ties to your home country, you said that your retired parents continue to live in Sri Lanka and that your husband has 18 acres of land from which you propose to continue to generate income from conducting business there in the future.  The Tribunal questioned you in relation to your economic circumstances, which may be an incentive for you not to return home.  You told the Tribunal that you presently work for the Woolworths supermarket group in Hawthorn, Victoria, and that you earn $420 per week.  You told the Tribunal also that your husband has been able to find work in Australia and that he works as a cleaner. 

13. You told the Tribunal, and the Tribunal accepts, that you have a brother here in Australia, along with an uncle.  On reading the documentation before the Tribunal, it is clear to the Tribunal that your uncle in Australia is your mother's brother.  Indeed, your uncle came to the Tribunal today to support you in person.  Both your brother and your uncle here in Australia are citizens.  You told the Tribunal that your brother came to Australia as a student and was ultimately able to obtain citizenship.  Your brother lives in Australia with his wife. 

14. The Tribunal has some concerns that there is evidence that the student visa program is being used to circumvent the ordinary migration program by you.  This will be outlined further below. The Tribunal is concerned that the student visa program is being used by you to maintain ongoing residence in Australia.  Again, this will be expanded upon further below.

15. Whilst there are secondary applicants in this case, the relationships are not of the concern referred in 11d of Ministerial Direction 53.  The Tribunal was able to identify from speaking with you that you have a solid knowledge of living in Australia, with you of course having lived here now for approximately seven-and-a-half years. 

16. I now turn to the value of the course proposed, namely the Certificate IV in Cookery, to your future. At this point the Tribunal highlights that the course proposed, the Certificate IV in Cookery, is not consistent with your previous level of education and the Tribunal considers it unusual for someone with two Australian master's degrees to want to continue in a certificate level program, that being a program even lower than the TAFE level diploma program.  You told the Tribunal that you wish to study cookery because you want to be able to assist your husband with his businesses back home.  It is not clear to the Tribunal how the Certificate IV in Cookery which you now put forward will assist you to obtain employment or improve your employment prospects in Sri Lanka. 

17. The Tribunal is also concerned by the number of unrelated courses that you have pursued, including where you have changed disciplines or changed your education stream between unrelated courses.  Put simply, the Tribunal cannot see the link between a Certificate IV in Cookery and the array of different qualifications you have already completed, including, of course, a bachelor degree and two master's degrees. 

18. When the Tribunal considers the remuneration that you could expect to receive in Australia compared to what you could expect to receive back in Sri Lanka, the Tribunal considers that there is an economic incentive for you to remain in Australia simply because of the economic disparity which exists between Sri Lanka and Australia. Put even more simply, the Tribunal considers that it is common knowledge that you would be able to earn more money working in Australia than you would be able to if you returned to Sri Lanka. 

19. The Tribunal asked you whether there were applications made by you for any other Australian visa, and you said that there was not.  You also told the Tribunal that you have never previously travelled to any country other than Australia, and therefore 14a of Ministerial Direction 53 is not directly relevant. 

20. You told the Tribunal that you had returned to Sri Lanka on three occasions since coming to Australia.  The first trip was for a period of 20 days, the second was for a period of two weeks, and the third was for a period of one week.

21. The Tribunal has had regard to the amount of time you have spent in Australia maintaining residence; it is a significant period, more than seven years.  The Tribunal is concerned that, in more recent times, that is after you completed the master's degrees, you have maintained residence by undertaking a series of short, inexpensive vocational level courses. 

22. The Tribunal has no information before it that you have not always complied with immigration laws.  As you say that you have never travelled to any country other than Australia, Ministerial Direction clause 14b is not particularly relevant. 

23. The Tribunal has had regard to the 138 folios comprising the Tribunal file.  In some instances these documents are, of course, copies of Tribunal documents which the Tribunal sent to you, and the Tribunal also observes, of course, that this documentation also includes case notes relating to your communication with the Tribunal on those occasions where you have made telephone contact with a Tribunal officer. 

24. In accordance with section 359AA of the Migration Act, the Tribunal put to you information from the Provider Registration and International Student Management System, known as PRISMS. The Tribunal explained to you why this information was relevant to the review and explained that it would be the reason, or a part of the reason, for affirming the decision that is under review, subject of course to any comments you made. The Tribunal explained to you that this information is relevant to the review because, when considered alongside all the other information that the Tribunal has before it, including the Department's file and the Tribunal's file, the Tribunal could have reason to believe that you are seeking to circumvent the ordinary migration program by using the temporary student migration program as a means to maintain ongoing residence in Australia. The Tribunal informed you that the consequences of this information being relied upon by the Tribunal may be that the Tribunal forms the view that you do not meet the requisite criteria for the grant of the relevant Class TU visa. The Tribunal explained this to you and highlighted that you may be refused the visa for which you have applied.

25. You understood the Tribunal's summary of your PRISMS records.  The Tribunal informed you that you could comment or otherwise respond to the information put to you, or that you could seek additional time to comment on or respond to the information.  You did not elect to seek additional time and rather you chose to personally respond during the course of the hearing.  In response to the information about your PRISMS records you said that you initially commenced studying interactive digital media, but that the reason you went on to complete a master's degree was to be able to assist or manage your husband's business.  You also said that you selected marketing to be able to develop the business and that you are now studying cookery to be able to go back to Sri Lanka and start a café-related business.

26. Having considered your response, the Tribunal remains concerned that your study history, whilst for the most part very successful, comprises a series of unrelated courses in different disciplines.  The Tribunal, as has already been indicated above, is concerned that more recently, that is following the completion of your master's degree level programs, you have simply sought to maintain enrolment in vocational education level courses.  The Tribunal questioned you as to when you plan to return to Sri Lanka.  You responded that you would return to Sri Lanka following the completion of the Certificate IV. The Tribunal questioned you, given it is now March 2018 and your Certificate IV in Cookery is due to end in the coming months, namely May 2018, as to what arrangements you had made to return to Sri Lanka.  You seemed unable to elaborate further in response to this line of questioning.  Indeed, it appeared to the Tribunal that you have actually made little, if any, plans concerning returning to Sri Lanka.  The Tribunal remains significantly concerned in relation to your claimed plans of wanting to develop a cooling system to preserve food and also to open a café back in Sri Lanka. 

27. The Tribunal considers that several years ago, when you had already completed postgraduate qualifications, you would have already had the sufficient skills, knowledge, and qualifications to cease residence in Australia and embark upon your claimed plan overseas, that is the Tribunal considers that several years ago you had a very definite choice, and that choice was between returning home, as you claim to want to do, and seeking to remain in Australia through future student and/or associated bridging visas.  You did not, however, of course, depart Australia.  Instead, what you have done in recent years is propose yet further study and a further stay, which would of course have the real effect of prolonging an already significant period in Australia, prolonging your separation from your claimed personal ties in Sri Lanka and incurring significant additional expenses in the form of tuition fees and living expenses. 

28. As the Tribunal considers that several years ago you would have already had sufficient skills and knowledge to be able to return to Sri Lanka and pursue your claimed plans, significant doubts are cast on the value of the study thereafter, and presently, to your future.  Put more simply, if your stated claim that you wish to work in your husband's business or open a café associated with that business is true, you would have been able to do that today, and you would have been able to have done that several years ago.  The Tribunal finds that your very own conduct in now proposing a further stay to finish a Certificate IV level program, which is completely unrelated to your previous tertiary level, including postgraduate level, qualifications suggests that you will not yield to the claimed incentives that you have to leave Australia, but rather that you intend to continue to stay in Australia despite your claimed future plans lying outside of Australia.

29. Taking the considerations indicated by Direction 53 as a whole, the Tribunal finds that little weight should be attached to your claimed incentives to depart Australia.  You told the Tribunal in your own evidence that your brother, who lives here in Australia, obtained permanent residency and Australian citizen status after initially having come to Australia on a student visa.  It is your claim the intention by you has always been to stay in Australia temporarily, and you claim that that intention is still held.  The Tribunal considers that, if that is and was so, the Tribunal considers that you would have departed Australia and returned to Sri Lanka to set in motion your claimed future plan several years ago. 

30. The time for that to have reasonably occurred has now passed, and the Tribunal finds that you have proposed further study and a stay in Australia because you do not intend to action a future plan outside of Australia, and that you do not intend to reunite with your personal ties overseas.  Indeed, it appears from the evidence before the Tribunal that you have largely been able to manage your personal relations overseas whilst you have been in Australia.  The Tribunal is of course concerned that you intend to stay in Australia indefinitely and that you have proposed courses of limited additional value to your claimed future plan so as to be granted a further student visa, with the primary purpose of maintaining ongoing residence in Australia for as long as you can.

31. On the basis of the above, and having considered your circumstances overall, including your immigration history and each of the considerations indicated in Direction 53, and other matters it considers relevant, the Tribunal is not satisfied that you intend to stay in Australia temporarily. Accordingly, the Tribunal finds that you do not meet clause 573.223(1)(a). The decision of this Tribunal is to affirm the decision of the delegate to refuse to grant you a Class TU visa. Following this, it is also the decision of the Tribunal to affirm the decision in relation to each of the other named visa applicants.

    DECISION

1. The Tribunal affirms the decisions under review.

   P. Wood
   Senior Member