SISKALIA (Migration)

[2019] AATA 4611

SISKALIA (Migration) [2019] AATA 4611 (30 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms  SISKALIA
Mr IWAN KURNIAWAN

CASE NUMBER:  1706158

HOME AFFAIRS REFERENCE(S):           BCC2016/3549606

MEMBER:Wendy Banfield

DATE:30 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 30 January 2019 at 12:01pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entry and stay – course attendance, progress and completion – change of subject area – periods of no study – circumstances in home country and Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.12, Schedule 2, cl 500.212(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 and Border Protection on 15 March 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 25 October 2016. 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 it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The primary applicant (the applicant) is a citizen of Indonesia and is currently 25 years old. The secondary applicant is her husband who is aged 24. The applicant came to Australia on 17 February 2014 to study Business. Since arriving in Australia the applicant has studied courses in Business, Marketing and Hospitality.

5. The Department made its decision to refuse the applicant’s visa for the following reasons:

   ·     The applicant did not undertake any study between 12 June and 14 October 2015 and 7 September and 12 December 2016;

   ·     There is no evidence the applicant sought any assistance or deferred her studies;

   ·     The applicant’s enrolment in an Advanced Diploma course was cancelled on 5 October 2016 due to unsatisfactory course progression. The education provider had advised the applicant failed to comply with an agreement to attend and submit work;

   ·     The applicant was only able to provide evidence of having completed 3 out of 4 elective units and 1 out of 4 core study units;

   ·     In the 3 years the applicant has spent in Australia she has only completed a Certificate II in Business;

   ·     Since the applicant did not study for certain periods and displayed unsatisfactory attendance and course progression the delegate was of the view her enrolment was for the purpose of maintaining residency in Australia;

6. The applicants appeared before the Tribunal on 15 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

   Evidence of the visa applicant

7. The applicant confirmed she came to Australia in February 2014 and began studying Marketing because it was her major in Indonesia. She began with enrolment in a Certificate II and III. The applicant said her visa was then refused because there was a gap of 7 months. However, she said this is not correct because she has evidence that she was enrolled from April to August 2015. Then in September the applicant said she had a school break after which she started another course. She claimed she had no gap at all and was still doing the course. She said the Certificate III course began in April 2015 and she has a certificate of attainment for that period.

8. The applicant claimed she then applied to take an Advanced Diploma but the college told her she had not been attending and cancelled her COE in October 2015. The course was meant to run until October 2016. She said the Department called the school and were told she had not been attending. But according to the applicant the college has since closed down and had very bad practices. The applicant said she had finished the Advanced Diploma but also claimed the school cancelled her COE without warning. The applicant handed the Tribunal documents in relation to her claims but stated that because the college was closing they would not give her anything else.

9. The Tribunal put to the applicant that the Department asked her about the Advanced Diploma course being cancelled due to unsatisfactory progression and that she had claimed to have completed it. The Department had then contacted the college who advised the applicant’s enrolment was cancelled. The college advised the Department the applicant was warned about unsatisfactory attendance and not submitting assignments. It was alleged the applicant had agreed to a plan to comply with course requirements but she had not; she had completed three out of four electives and one out of four core units. The applicant advised the college has subsequently confirmed she attended the college from October 2015 to October 2016. The Tribunal then asked about her apparent failure to complete most of the core subjects. The applicant referred to emails with the college but the Tribunal told her she only has a statement of attainment about the units she did complete. The Tribunal asked the applicant to comment on only having completed four out of eight subjects. She said six subjects were completed but there was a change of teachers at the time and the final two subjects were not given.

10. The applicant then applied for a further visa and enrolled in an Advanced Diploma of Hospitality. She said originally she wanted to study Marketing to help her father-in-law’s business but then decided to study hospitality because her husband is a chef and she wants to support him. In addition, she said her husband’s parents gave them land and provided documents in that regard. The applicant said her husband is currently a chef in Australia and she works part-time as a packer.

11. The applicant declared she is planning to finish her Diploma in Hospitality and return to Indonesia. The applicant’s husband has also studied in Australia, having arrived in Australia prior to her. The applicant said she does not have family in Australia other than her husband and has her mother and siblings in Indonesia. Prior to coming to Australia the applicant said she was a student and had not worked. Their plans are to open an Italian restaurant because her husband works with that cuisine in Australia and they will receive financial assistance from his parents. The applicant advised she had been back to Indonesia since arriving in Australia. She asked the Tribunal to consider her valid response to the reasons for her visa being refused.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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 is a genuine applicant for entry and stay as a student as required by the migration regulations.

14. 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?

15. 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.

16. 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.

17. The Tribunal considered the circumstances in the applicant’s home country and in Australia. The applicant’s husband is with her in Australia as a secondary applicant. Her parents, siblings and in-laws continue to live in Indonesia. The applicant advised she completed school in her home country prior to travelling to Australia for further study. The applicant’s husband has also studied in Australia. During the hearing it was claimed the applicants originally intended to study Marketing to assist their family in an existing business but the plans changed and they now want to open a restaurant or similar. The secondary applicant is employed in Australia as a chef while the applicant works part-time as a packer. The applicant declared her husband has property in Indonesia and they will be assisted in business by her father-in-law. The applicants have returned to their home country a number of times since first arriving in Australia. The Tribunal gives some weight to the applicants having ongoing ties to their home country; however the applicants are together in Australia and also have ongoing employment that may act as an incentive for them to remain.

18. Since arriving in Australia in February 2014 the applicant has completed a General English course and a Certificate II in Business. She was enrolled in a Certificate III in Business as well as Certificate IV in Small Business and Diploma and Advanced Diploma of Marketing but those enrolments were cancelled. The applicant provided evidence that she completed part of the Advanced Diploma course but evidence from the college indicates the enrolment was cancelled due to poor academic progress and attendance. In a written submission to the Department and at the Tribunal hearing, the applicant insisted she had attended classes at her college and that the institution mistakenly failed to record her performance properly. However, the applicant was only able to provide a Statement of Attainment for part of the course and not a final certificate. In addition, the education provider gave the Department details of a performance agreement with the applicant that she failed to adhere to. This was given as the reason for her enrolment being cancelled. Instead of continuing to study in the Marketing field, the applicant then changed to a Certificate III in Hospitality.

19. The Tribunal has considered the claims made by the applicant regarding her studies and experience with her education provider. The Tribunal finds the evidence weighs against the applicant in this regard. The evidence demonstrates she only completed part of a course and the college confirmed her failure to progress by providing information about lack of adherence to a study plan. It is not credible that the college would issue a statement of attainment and not a final certificate if the applicant had completed the course, nor would they provide the Department with details of lack of compliance with study requirements if the applicant had been attending and progressing as required. While the Tribunal takes into account the applicant’s claims that the college has since closed, the Tribunal notes the education provider in question has in fact closed in Sydney but still operates in Melbourne. It does not change the Tribunal’s assessment of the evidence as outlined.

20. The applicant is now enrolled to in a Diploma of Hospitality Management. While the completion of this course would no doubt be of benefit to her in future, the Tribunal is not satisfied the applicant is studying for genuine reasons. The applicants gave evidence that they intend to open a restaurant with help from parents but have provided no independent evidence of how or when this may be achieved. Since arriving on 17 February 2014, as of the date of the hearing the applicant had been in Australia for more than four years. By the time she completes a Diploma of Hospitality on 20 September 2019, the applicant and her husband will have spent more than five and a half years in Australia. The Tribunal does not consider this to be adequate study achievement when the purpose of a student visa is for non-citizens or permanent residents to be able to study in Australia and progress academically.

21. 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).

22. 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.

23. 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.

    Member of Family Unit – Secondary visa applicant

24. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

25. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the secondary applicant is unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.500.212.

    DECISION

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

    Wendy Banfield
    Member