VALAYTEN (Migration)

[2017] AATA 2229

VALAYTEN (Migration) [2017] AATA 2229 (10 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shanmuga Subramanian VALAYTEN

CASE NUMBER:  1515478

DIBP REFERENCE(S):  BCC2015/2438725

MEMBER:Mara Moustafine

DATE:10 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 10 November 2017 at 3:55pm

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CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – Future employment prospects – No strong incentive for applicant to return – Not a genuine temporary entrant

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 572.223

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 first arrived in Australia on 11 February 2009 on a TU subclass 573 Student visa and was granted several subsequent TU573 and TU572 Student visas, the last of which expired on 26 August 2015. The applicant applied to the Department of Immigration for another TU 572 visa on 23 August 2015 to undertake Certificates III and IV in Commercial Cookery. The delegate decided to refuse to grant the visa on 29 October 2015.

3. 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).

4. According to the decision record, a copy of which the applicant provided to the Tribunal for the purposes of the review, the delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because Regulations because he was not satisfied that the applicant intended genuinely to stay temporarily in Australia. Among other things, the delegate was concerned about the value of his proposed study of basic certificate courses to the applicant’s future employment prospects, given his previous completion of a Bachelor in Hospitality Management; and his incentive to return home to Mauritius.

5. The applicant applied to the Tribunal for a review of this decision on 13 November 2015. He was represented in relation to the review by his registered migration agent.

6. Ahead of his hearing, the applicant’s migration agent provided to the Tribunal a submission and documents in support of the applicant’s claims, including the applicant’s CV, statement of study purpose dated 4/7/2015, Confirmations of Enrolment (COE) for Certificate III in Commercial Cookery (23/07/2015 to 01/07/2016), Certificate IV in Commercial Cookery (18/07/2016 to 15/12/2016); a letter of offer of enrolment from TAFE International WA for a Certificate IV in Patisserie, an associated COE (29/1/2018 to 5/7/2019) created 3/11/2017 and a letter explaining his reasons for doing this course; an offer of employment as a cook from Royaume des Saveurs dated 14/11/2015; a completion certificate for Certificate III in Commercial Cookery, academic transcripts for units completed towards a Diploma of Hotel Management and Certificate IV in Foundation Studies and Graduate’s Academic Achievements in the Bachelor of Hospitality Management; statements from TAFE confirming his current enrolment in Certificate IV in Commercial Cookery and noting courses in which the applicant had been enrolled.  

7. The applicant appeared before the Tribunal on 8 November 2017 to give evidence and present arguments. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

10. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(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)     …

11. 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.

12. 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.

13. At the hearing, the Tribunal discussed with the applicant the reasons his Student visa had been refused in the context of the Genuine Temporary Entrant criterion, noting that the primary purpose of a Student visa was for an applicant to study and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant his circumstances in Mauritius and Australia, his immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.

14. The applicant told the Tribunal that he was currently enrolled in a Certificate IV in Commercial Cookery, which he was due to complete in December 2017. He then wished to study a Certificate IV in Patisserie, which would take a further 18 months. On completion of this course, he planned to return to Mauritius, then work on a cruise ship and later open his own restaurant business.

15. In a discussion of his study history in Australia since 2009, the applicant told the Tribunal that, although he had completed a Diploma of Hospitality and Bachelor of Hospitality Management, these courses were focused on management and did not give him enough practical experience. This was the reason he applied to undertake the lower level courses in Commercial Cookery and why he now wanted to study patisserie.

16. Asked about the business he intended to open and whether he had an offer from a cruise ship, the applicant responded that he had no plans for a restaurant yet. Nor did he have an offer from a cruise ship. He said he would initially take up the job offer he had to work in the kitchen or front of house at the Saveur restaurant where he worked previously, then work on a cruise ship to earn money and later return to Mauritius to set up his own business. As discussed with the applicant, the Tribunal is concerned that, after studying in Australia for eight years, he still had no concrete business plans for his future or to have made any advance in terms of his employment in Mauritius. The applicant’s response, that working at his old restaurant would help him settle back into Mauritius as he had been out of the country for a while compounds the Tribunal’s view that he has not seriously addressed his future employment prospects in Mauritius.  By contrast, the applicant provided evidence that he has had continuous employment in the hospitality industry in Australia since 2010, including in prestigious venues like the Hilton Parmelia and the University Club of Western Australia and achieved accolades for his work.  

17. As discussed with the applicant, the Tribunal is concerned at the shift in his claimed study purpose from the time he applied for the Student visa under review to the present time. In his statement submitted in July 2015 the applicant said he was ‘confident’ that by taking the Cookery course he would ‘quench [his] thirst for academic development’, as well as broadening his chances of finding employment in many establishments, not only in his own country, but all around the world.  However, he is now positing that learning to make pastries is ‘key’ for his career in commercial kitchens and ‘necessary to be taken seriously as a potential employee in cruise ships and good hotels’. In the Tribunal’s view, the applicant has applied to undertake this course in order to prolong his stay in Australia, especially as he obtained his offer of enrolment and COE for the course in the week ahead of the hearing.  

18. The Tribunal notes that were he to undertake the patisserie course he proposes, he will have been studying in Australia for over 10 years. As put to the applicant, this is not consistent with the purpose of a student visa for an applicant to study a registered course, progress academically and stay in Australia temporarily as a student.

19. The Tribunal accepts that the applicant has family and social ties in Mauritius, but is not satisfied that these constitute a strong incentive for him to return home when considered against his circumstances in Australia. The Tribunal notes that, by his own evidence, he has not been back to Mauritius since 2012, while his parents have visited him in Australia in 2010 and 2014.

20. 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.572.223(1)(a).

21. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. 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

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

    Mara Moustafine
    Member