TOTHNE EROS (Migration)

[2019] AATA 1152

TOTHNE EROS (Migration) [2019] AATA 1152 (9 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Monika Tothne Eros
Jozsef Toth

CASE NUMBER:  1703829

HOME AFFAIRS REFERENCE(S):          BCC2016/3844017

MEMBERs:A. Millbank (Presiding)

P. Wood

DATE:9 January 2019

PLACE OF DECISION:  Brisbane, Queensland

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

Statement made on 09 January 2019 at 12:44pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – does not genuinely intend to stay temporarily in Australia – not genuine student – proposed study will not improve future employment prospects – immediate family in Australia – no real incentive to cease residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 22 February 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 16 November 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).

4. The applicant appeared before the Tribunal on 23 October 2018 by telephone to give evidence and present arguments. The Tribunal was assisted by a nationally accredited interpreter.

5. The applicants were assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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?

9. 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.

10. Direction No.69 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.

11. The applicant is a 45-year-old Hungarian mother who first arrived in Australia on a tourist visa on 2 November 2016. The second named applicant is her husband.

12. In her application for a tourist visa, the applicant wrote:

    “I would like to go on a holiday for two months with my family, Rebeka, Mate and with my husband, Jozsef. My son has just graduated from high school and we would like to celebrate with this holiday. In Sydney we would like to see the Opera House with the Harbour Bridge, visit the Taronga Zoo and have a rest at Bondi Beach. We are planning to rent a car and spend some time in the Gold Coast, too. We would like to explore several cities in Australia, visit also the Australia Zoo, hold a koala and see kangaroos”.

13. The applicant asked the Tribunal to accept that she arrived in Australia for a short holiday with her family and shortly thereafter decided that she would study here. Whilst the Tribunal accepts that plans can change, the Tribunal does not accept the applicant’s evidence. The Tribunal considers that the applicant used the visitor visa program to circumvent the more rigorous student visa assessment process.

14. The Tribunal has read and had regard to the documentation provided by the applicant to the Department including the completed application form, evidence of overseas student health cover, a marriage extract and copies of the photograph pages of the passports of the respective applicants.

15. The applicant provided a document entitled “genuine temporary entrant criterion statement” dated 9 November 2016 to the Department (df 26). In this document the applicant outlines her reasons for proposing to study an English language course and how she came to identify a course provider. She explains that, as at 9 November 2016, her son and daughter were due to begin their own studies in Australia and “I would like to be next to them in the first few months to ensure a smoother adjustment to this new environment and culture”. The applicant asserted that English language study would assist her in her own business back in Hungary.

16. The Tribunal has read and had regard to the documentation provided to it by the applicant and her representative. This includes her application to the Tribunal, a copy of the delegate’s decision record and miscellaneous correspondence. By letter dated 19 October 2018, the applicant’s representative provided a confirmation of enrolment certificate relating to the applicant, numerous family photographs, housing documentation relating to assets in Hungary, declarations from family members in Hungary, schooling documentation, a statement from the Commonwealth Bank of Australia, an English language course certificate and results, a certificate in business, passport documentation and proof of the applicant’s son being enrolled in a university in Romania.

17. The Tribunal has also read and had regard to the written submission of the applicant’s representative dated 22 October 2018. The applicant is currently enrolled in a vocational level Certificate IV in Marketing and Communication. This course commenced on 23 July 2018 and is due to finish on 30 June 2019. In her oral testimony the applicant said that she would find it difficult to find a similar course in Hungary where the instruction was in English. She also said that such a course would be expensive in terms of tuition. Whilst the Tribunal accepts that the applicant might benefit from a higher quality education in Australia, the Tribunal is unconvinced in relation to the value of the course to the applicant’s future. The Tribunal observes that, in her application to the Department, the applicant listed her occupation as a “financial consultant” and her highest level of education as that of a chartered accountant. The representative’s submission dated 22 October 2018 makes the broad claim that “improved knowledge of the English language coupled with greater business, marketing and communication skills will enhance the family business and lead to greater opportunities throughout Europe”.

18. It is convenient to observe that the applicant has completed the English-language courses that she proposed at the time of application to the Department. The Tribunal considers that the value of the vocational Certificate IV qualification to the applicant’s future would be marginal. The Tribunal considers the Certificate III in Business which the applicant has already achieved should provide the applicant with a knowledge base that may be deployed to solve disparate business challenges, including in relation to marketing and communication.  As such, the Tribunal does not consider that the course proposed will really assist the applicant to obtain employment or improve her employment prospects in Hungary.

19. The applicant’s pattern of behaviour since first applying to the Department on 16 November 2016 has involved always identifying a further course, further extending her stay in Australia each time. The Tribunal observes that the applicant completed an English language course at Ability English between 14 November 2016 and 19 May 2017. The applicant completed a further English course between 25 September 2017 and 15 December 2017. Between 5 February 2018 and 1 July 2018 the applicant completed the vocational level Certificate III in Business.

20. The applicant told the Tribunal that she has not returned to Hungary since arriving in Australia as a tourist more than two years ago. The applicant gave evidence that her son completed a diploma in Australia before returning to study medicine in Romania. The applicant could not tell the Tribunal the discipline of the diploma which her son completed. The applicant said that her daughter has recently completed a Master of Business Administration degree in Australia and wants to stay in Australia for at least two years. The applicant explained how she understood her daughter to be eligible for a graduate visa to remain in Australia to work.

21. The applicant’s evidence is that the balance of her family, and her friends, remain in Hungary. In this case the Tribunal does not consider the before mentioned personal connections overseas to be a distinct incentive for the applicant to cease residence in Australia. The Tribunal acknowledges the family who remain in Hungary but at the same time considers the presence of her immediate family in Australia is significant. The Tribunal considers the presence of the applicant’s daughter in Australia a strong incentive for the applicant to remain in Australia, particularly when coupled with the other incentives which exist to remain in Australia.

22. The Tribunal has had regard to the applicant’s evidence in relation to real estate holdings in Hungary, including a small business. The Tribunal has had regard to the web extracts provided concerning the business. The Tribunal considers that real estate can be readily sold for cash, or indeed, may never be sold and may instead produce income in the form of rent. The applicant also provided evidence concerning owning a vehicle. Such assets are no real incentive to cease residence in Australia.

23. There is limited other relevant evidence regarding her circumstances in Hungary relevant to others in that country and the Tribunal makes no other findings concerning the applicant in that respect.

24. It is common knowledge that there is an economic disparity between Australia and Hungary.[1] In these circumstances, the Tribunal questioned the applicant about her economic circumstances. She told the Tribunal that she is supported by the second named applicant who works in self-employed carpentry type jobs. The applicant provided a copy of the second named applicant’s taxation documentation. On the applicant’s evidence, the Tribunal considers that the second named applicant could earn more in Australia compared to Hungary. The Tribunal considers this presents a significant incentive for the applicant not to return to Hungary.

    [1] See also “World Development Indicators”, data.worldbank.org/products/wdi, December 2018

25. The application form completed by the applicant and provided to the Department declares various previous travel by the applicant. There is nothing before the Tribunal to indicate that the applicant has encountered any immigration issues during her previous travels.

26. In accordance with the ministerial direction, the Tribunal questioned the applicant concerning any circumstances in her home country that may induce her to apply for a student visa as a means of remaining in Australia indefinitely. The applicant told the Tribunal that there aren’t any reasons why she cannot return to Hungary and that she does not have any concerns in relation to military service, political or civil unrest. The Tribunal accepts this and considers that she simply chooses not to return.

27. Adopting the procedure in section 359A of the Act, the Tribunal wrote to the applicant enclosing a copy of her enrolment records from the Provider Registration International Student Management System (PRISM) database. Following s.359A of the Act, the Tribunal’s letter explained the relevance of the information to the review process and the consequences of the Tribunal relying on the information. In a response received on 2 January 2019 the applicant submitted, through her agent, that she has complied with her visa conditions while in Australia. She further submitted that she does not have a pathway to permanent residency because of her and her husband’s ages and inability to meet the requirements for Business stream visas.

28. Adopting the procedure in section 359A of the Act, the Tribunal also provided the applicant with relevant ‘movement detail’ information. Following s.359A of the Act, the Tribunal’s letter explained the relevance of the information to the review process and the consequences of the Tribunal relying on the information. The applicant submitted, through her agent, that the reason she has not returned to Hungary is because, as a diligent student, she has preferred to spend money on course fees rather than travel.

29. At the conclusion of the Tribunal hearing the applicant’s representative said that parts of the interpretation of the applicant’s testimony were incorrect. The Tribunal undertook to provide the applicant’s representative with the audio recording of the hearing and asked her to write to the Tribunal identifying the errors. The Tribunal provided the audio recording to the applicant’s representative on 18 December 2018. No errors were identified to the Tribunal by the applicant or her representative.  

30. 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. In our view, the applicant has an intention to remain in Australia, at least while her daughter is here, but she did not articulate a lawful means of doing so outside of the student visa program. It follows that the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia.

31. 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). 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, in respect of both applicants, must be affirmed.

    DECISION

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

    A. Millbank
    Member

    P. Wood
    Senior Member