TAVARUVA (Migration)

[2018] AATA 2481

TAVARUVA (Migration) [2018] AATA 2481 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss PELAGIA RUTENDO TAVARUVA

CASE NUMBER:  1701638

Home Affairs REFERENCE(S):                BCC2016/2862464

MEMBER:Meredith Jackson

DATE:5 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 05 June 2018 at 12:46pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – Change in courses – Lack of academic progression – Continuity of studies – Familial ties in Australia – Career prospects – Current enrolment status

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

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 10 January 2017 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 for the visa on 29 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). 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 visa 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 the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 9 May 2018 to give evidence and present arguments.

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

   Criteria for a Student visa

6. 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.

   Genuine applicant for entry and stay as a student (cl.500.212)

7. 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?

8. 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.

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.

   What is the issue in the present case?

10. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student. The delegate found that she was not, and refused to grant the visa.

    Tribunal’s consideration of claims and evidence

11. Consistent with the requirements of Direction 69, the Tribunal considered the following claims and evidence in reaching its conclusion that the applicant is not a genuine applicant for entry and stay as a student.

12. The delegate’s decision, provided to the Tribunal, indicated that on 17 February 2013 the applicant arrived as the holder of a TU573 student visa valid until 30 August 2016. The visa was granted offshore and was subject to condition 8516 which requires the visa holder to continue to be a person who would satisfy the primary condition for the grant of the visa. The visa was granted under the streamlined visa processing arrangements (SVP) applying at that time, in order for the applicant to undertake the principal course Bachelor of International Business at Griffith University. The applicant did not commence the Bachelor of International Business at that time, instead enrolled in the following vocational level courses, most of which were cancelled:

    a.Diploma of Commerce (cancelled)

    b.Certificate IV in Tertiary Preparation (cancelled)

    c.Diploma of Commerce (cancelled)

    d.Bachelor of International Business (cancelled)

    e.Bachelor of International Business (cancelled)

    f.Diploma of Health Care (2/3/2015 commenced to 6/2/2016 finished)

    g.Diploma of Health Care (cancelled)

    h.Bachelor of Nursing (cancelled)

    i.Diploma of Business and Advanced Diploma of Business (studying/approved).

13. At the Review hearing, the Tribunal questioned the applicant about the courses she had completed since arriving in Australia. she submitted that she had enrolled in a Diploma of Healthcare at Griffith College but had not completed the course; rather she had completed a Certificate of Business while waiting to get her IELTS (English) certificate.

14. The applicant stated she was currently enrolled in a Diploma of Enrolled Nursing at the Australia Institute of Business & Technology, and provided a signed letter from the provider certifying that she was a student. She did not provide a Confirmation of Enrolment document. The letter stated she was studying a Diploma of Nursing.

15. The applicant said when she completed her Diploma she would return to Zimbabwe to help her parents as things were picking up there. Her study in Australia was to enable her to “grow a backbone” and experience new cultures.

16. The applicant said she has cousins in Brisbane who are Australian citizens, and that they meet up whenever they get a chance, perhaps six times a month. The applicant said her parents and two brothers live in Zimbabwe.

17. The applicant claimed that once she has returned home she will seek to set up a health facility in her parents’ shopping centre. With her Diploma she would be at an advantage through her exposure to technology and equipment here. She stated she would be better off to work in Australia but wants to go back home, and there were no obstacles to returning home at the moment.

18. The applicant said her decision not to pursue a Bachelor degree and other courses since arriving was due to her parents’ financial difficulties in the midst of political instability in Zimbabwe. At that time her parents preferred her to stay overseas rather than return home, because of the instability.

19. She said a change of study path from business to nursing was because her parents wanted her to study the former, but she wanted the latter and her parents were now on board. Her mother was a nurse.

20. After completing her Diploma she hoped to study a Bachelor of Nursing, and had considered studying in Australia and online in Zimbabwe. She submitted she would be better off here when it came to study placement.

21. The Tribunal said this raised a concern that study conditions and placement might be a significant incentive to remain in Australia beyond her Diploma. The applicant said at this stage she was just concerned with completing her Diploma. If she did pursue a degree, she would apply to Griffith University but was talking about it only because the Tribunal had raised it (the question of higher education study for which she came to Australia).

22. The applicant claimed she has a partner here whom she does not live with, but the two had been together for four years. He is a Zimbabwean student on a student visa who is studying a Master’s degree in Certified Public Accounting. He has 8-12 months to go on his course whereas she has about five months in the Diploma.

23. The Tribunal raised that the delegate’s decision stated she was subject to a visa condition that she had not complied with: visa condition 8516, which requires the visa holder to continue to be a person who would satisfy the primary condition for the grant of the visa. Her course was cancelled for non-commencement and this constituted a breach.  Further the delegate said the applicant had breached visa condition 8202 (continues studying) and this could have been avoided if she had sought a deferral at the time. She said at the time she wasn’t aware she was in breach. The Tribunal raised a concern that she was more likely than not to have been aware of the conditions attached to her visa and said this was important to the Tribunal’s considerations. The Tribunal invited the applicant to comment on this lack of action and she submitted that she had a lot going on at the time.

24. The Tribunal asked the applicant about the amount of time she had spent studying since arriving in Australia five years ago and she stated that cumulatively this was around 18 months to 2 years, not including 8 months in her current course. She also worked part-time in a nursing home and was interested in the health sector as a career path. The Tribunal said it could have a concern that her lack of study continuity indicated the applicant was using the student visa program to extend her stay in Australia. The applicant said she had learned from her mistake in not seeking deferral and wished to atone for the error.

25. On 10 May the Tribunal wrote to the applicant under Section 359A of the Act giving her an opportunity to commend on or respond to certain information that the Tribunal considered would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision. The Tribunal said it had not made up its mind about the information but it was relevant to its assessment as to whether the applicant is a genuine student who intends genuinely to stay temporarily in Australia.

26. The information referenced concerned the applicant’s record of enrolment in the Provider Registration and International Student Management System (PRISMS) which did not record the applicant as enrolled in a Diploma of Nursing but showed her last enrolment as in an Advanced Diploma of Business commencing 8 May 2017, an enrolment subsequently cancelled.

27. On 24 May the applicant responded, stating that she is currently enrolled in a Diploma of Nursing at AIBT which she is due to complete in October 2018. She also re-stated her intention to then return to help her family with the business that her parents own; that her mother would work with her and providing a view that the Zimbabwe economy was stabilising. The applicant also provided information on one of the family companies in which she held formal shares. The applicant did not address the specific matter of conflict between PRISMS and the letter about enrolment from AIBT, but offered a the same letter she had provided at the hearing (the letter was not attached to her email).

28. At the time of this decision, the applicant’s PRISMS record does not reflect a Diploma of Nursing enrolment for the applicant.

    Findings

29. The Tribunal has considered all the specified factors in Direction 69 and other material before it, and finds the student has not pursued and progressed in her study in a manner consistent with the intent of her first visa. It agrees with the delegate’s finding that she breached visa conditions.

30. The Tribunal is not convinced the applicant is a genuine student who intends to remain in Australia temporarily. It finds:

    a.A lack of clear academic progression and attainment since she first arrived in Australia to study a Bachelor of International Business, with seven course cancellations and her highest qualification a Diploma of Health Care, and this undermines her claims to a considered academic and career plan;

    b.A lack of continuity in study — on her own calculation she has studied for little over half the period she has been in Australia — and this undermines her claim to be a genuine student who intends to remain in Australia temporarily;

    c.The presence of close extended family in Brisbane, with whom she socialises six times a month, and her long relationship with a student who is completing a Master’s degree here, are real incentives to extend her stay in Australia;

    d.The applicant’s career prospects in Australia are better than at home — she has been working here in aged care — and she has not convinced the Tribunal of her career intentions in Zimbabwe. This provides further reasons to extend her stay in Australia;

    e.The applicant has not convincingly addressed her current enrolment status in response to the Tribunal’s written request about a conflict in enrolment information. She gave an inaccurate name for her course at the Hearing and the PRISMS database does not reflect a nursing enrolment. The Tribunal is not convinced the applicant is pursuing the study path she claims.

    f.The applicant has not persuaded the Tribunal that the issues in the early stages of her studies related entirely to her parents’ difficulties in Zimbabwe, instead finds her inaction concerning a study deferral was because she was not intent on studying continuously.

31. For the reasons 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).

32. Accordingly, the Tribunal is satisfied that the applicant is not a genuine applicant for entry and stay as a student as required by cl.500.212.

33. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met.

34. The Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student who intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal finds the applicant does not meet cl.500.212(a).

35. 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.

36. 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.

    DECISION

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

M. Jackson
Member