1419675 (Migration)

[2016] AATA 3896

1419675 (Migration) [2016] AATA 3896 (17 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yan Aung

CASE NUMBER:  1419675

DIBP REFERENCE(S):  BCC2014/2323204

MEMBER:Alison Mercer

DATE:17 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 17 May 2016 at 3:11pm

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. Where used in this decision:

   ·COE refers to Certificate of Enrolment in a course of study;

   ·PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   ·VET refers to Vocational Education and Training;

   ·A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

   ·The Department refers to the Department of Immigration and Border Protection;

   ·Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   ·IELTS refers to the International English Language Testing System.

3. The applicant applied to the Department of Immigration for the visa on 15 September 2014. The delegate decided to refuse to grant the visa on 19 November 2014. 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. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.223(1)(a) of Schedule 2 to the Regulations.  The delegate was not satisfied that the applicant was a genuine applicant for entrance and stay as a student in Australia, having regard to his circumstances, immigration history and other relevant matters.  In particular, the delegate noted that:

   ·    the applicant was currently undertaking a Certificate III in Commercial Cookery, to end 9 October 2015, after which he was enrolled in a Certificate IV in Commercial Cookery (12 October 2015 to 8 April 2016), to be followed by a Diploma of Hospitality (11 April 2016 to 7 October 2016);

   ·    previously, the applicant completed a Bachelor of Engineering course in July 2014;

   ·    the applicant’s reasons for changing courses to the lower level Vocational Education and Training (VET) sector were not accepted.  The delegate did not accept as credible or plausible that the applicant now wished to study at VET level because of his passion for cooking and because he wanted to open a restaurant/guest house in Myanmar (Burma);

   ·    the applicant was now aged 46 and had been in Australia for 5 years, which would become over 7 years if he were granted a further student visa to undertake the above courses;

   ·    he arrived as the holder of a subclass 573 (Higher Education Sector) student visa on 21 November 2009 and had only been outside Australia for 97 days since that time;

   ·    he worked part-time as a bar attendant at the Casino in Perth; and

   ·    overall, the delegate concluded that the applicant was using the student visa program to maintain ongoing residence in Australia and was not a genuine temporary entrant for study here.

5. The Tribunal received a review application from the applicant on 2 December 2014. It was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr Ian Hyun Su Joo, as his representative and authorised recipient for correspondence for the purposes of the review.

6. On 22 September 2015, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing by telephone conference on 22 October 2015.  The applicant and his agent were invited to provide, no later than 1 week before the Tribunal hearing, evidence that he was currently enrolled and had a CoE, of his past studies in Australia and an explanation of any gaps in study.  He was advised that the Tribunal would be assessing the issue of genuineness with reference to the factors in the Ministerial Direction 53, a copy of which was enclosed for his reference.

7. On 30 September 2015, the Tribunal wrote again to the applicant via his agent to advise that the hearing had to be rescheduled to 23 October 2015. 

8. On 19 October 2015, the applicant’s agent provided a response indicating that he and the applicant would attend the hearing, copies of CoEs for the applicant and a transcript of the applicant’s results from his Certificate IV in Commercial Cookery to date.  The agent stated further submissions would be provided before the hearing.  The CoEs provided were for the following courses at Stanley College in WA

   ·Certificate III in Commercial Cookery (13 October 2014 to 9 October 2015);

   ·Certificate IV in Commercial Cookery (12 October 2015 to 4 April 2016); and

   ·Diploma of Hospitality (11 April 2016 to 7 October 2016).

9. A letter dated 12 October 2015 was provided from Stanley College confirming the above and advising that the applicant’s attendance was satisfactory as at that date.

10. On 21 October 2015, further documents were provided to the Tribunal, including:

    ·submission from the agent dated 21 October 2015;

    ·employment reference for the applicant from Restaurant Manager at 88 Noodle Bar/Jimmy Wong’s Bar & Supper Club, dated 26 September 2014;

    ·certificate from the Institution of Engineers Australia stating that the applicant had been elected a graduate of the Electrical College on 23 December 2014;

    ·academic transcript for the applicant’s Diplomas of Electrotechnology (Electrical Systems) and (Electrical Drafting) completed in 2010; and

    ·letter of completion from Edith Cowan University for the applicant’s Bachelor of Engineering degree dated 17 July 2014 and academic transcript for this degree.

11. In summary, the applicant’s agent submitted that:

    ·the delegate’s decision was arbitrary and unfair;

    ·the applicant was a mature age student who had a successful career in the electrical engineering field before coming to Australia;

    ·a close relative in Australia who is a citizen encouraged the applicant to study here.  Although he completed a Bachelor of Engineering course here, it took some time due to personal difficulties and his age;

    ·this caused the applicant to re-think his future career and developed a desire to build a career in hospitality, partly due to his part-time employment in this field in Australia;

    ·he enrolled in the hospitality course package with Stanley College with a plan to either be employed in Australia or open a restaurant and/or expand a wholesale business related to the food industry in Burma/Myanmar;

    ·the course subject matter and price suited him. He did not choose short, inexpensive courses just to remain in Australia;

    ·there is information to suggest that the tourist/hospitality sector in Myanmar has increased significantly and would provide the applicant with a good career if he completes his courses in Australia in this field, regardless of his age; and

    ·he had been in Australia for a long time and had assimilated in the community.

12. On 22 October 2015, the Tribunal received further submissions from the applicant’s agent, including:

    ·copy of the applicant’s Certificate III in Commercial Cookery issued on 21 October 2015, letter of completion and academic transcript; and

    ·certificate of work experience for the applicant from the University Club of Western Australia for 13 July 2015 to 18 September 2015.

13. The applicant appeared before the Tribunal by telephone conference on 23 October 2015 to give evidence and present arguments. The Tribunal also received submissions from his agent. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

16. 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)     …

17. 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.

18. 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.

19. The applicant told the Tribunal that after completing his Bachelor of Engineering degree, he discussed future career prospects with other graduates from Myanmar as they were concerned that they would not be able to get work at home or in Australia. The applicant said that he was also worried about his age, as he felt this would affect his prospects of getting a job as an engineer. This led him to develop a plan B, which was to study commercial cookery and hospitality. The applicant said that he had a friend in Myanmar whose father ran a hotel, and that if he (the applicant) could not find work as an engineer in Australia, he would return to Myanmar and open a small restaurant with his friend. The applicant said that due to the oil and offshore gas industry there, there are many expatriate workers in Rangoon, and there would be a demand for Western food.

20. In response to the Tribunal’s query, the applicant said that there is a cooking school in Myanmar but it only teaches eastern cuisine. The applicant said he needed to do the Diploma of Hospitality Management in order to handle the management side of the restaurant.

21. The applicant said that previously, he ran his own business dealing with mechanical and electrical equipment in Myanmar for about 15 years. In 1992, he transferred this business to his brother and then worked for seven years in the shipyards in Singapore as an electrical fitter. He obtained a Diploma of Electrical Technology while working in Singapore. Towards the end of his time there, he applied to come to study in Australia and got a visa to do so in 2009. He chose Australia because his aunt lives in Perth and is an Australian citizen, so he could live with her and she would support him financially while he studied. He also worked part-time. The applicant said that his reason for wishing to undertake a Bachelor of Engineering degree was that work in the shipyard was very hard, and he wanted to improve his work conditions and his pay and felt that he would be able to do so if he were a fully qualified engineer. He initially completed a Diploma of Engineering course, then completed the Bachelor of Engineering degree. Although he got some credits for his previous study in Singapore, he still took some time to complete these courses as it was difficult to him due to his level of English. While he spoke some English due to working in Singapore in a multinational workforce, his English was initially fairly limited. The fact he was a mature age student also made it difficult, but he studied very hard and completed the courses over time.

22. In relation to returning to Singapore to work as a qualified engineer, the applicant said that he did contact his previous employer in Singapore about job prospects once he finished his course, but it had closed down and relocated to Qatar. The applicant said he was looking for work as an engineer in Australia and Myanmar.  To date, he had been unsuccessful in finding employment in this field, as mechanical and chemical engineers were in more demand.

23. In response to the Tribunal’s query, the applicant said if he were offered an engineering job in Australia, he would take it, and that he would prefer to work as an engineer, but felt that he had to have an alternative plan if he were unable to find work as an engineer, and the plan was to set up a restaurant with his friend. His friend is a civil engineer by training also, but has some experience working in restaurants. The Tribunal queried why the applicant would have to undertake a Diploma of Hospitality Management if he had completed the Commercial Cookery certificates and his friend already had experience managing restaurants. The applicant said that he would have to manage and teach restaurant staff how to cook Western food, and to be able to manage all aspects of the business, so he needed these skills.

24. In addition to his aunt, the applicant said that he also has a niece and nephew in Australia. In Myanmar, he has his elderly parents, his brother and his brother’s family. He also has a sister who is working as a nurse in Singapore. The applicant said he was married with 2 teenage children (13 and 17), and that his wife and children live with his parents in Myanmar. The applicant said that he had visited his family three times since coming to Australia in November 2009, and they had not visited him in Australia as it was too expensive. He said it was hard to be separated from them. The Tribunal queried whether he genuinely intended to finish the current course in return, given his lengthy absence from his family and his home country. The applicant said that he would go back once his completed the Diploma of Hospitality as he wants to see his family and explore the prospects of working as an engineer or opening a restaurant.

25. In relation to his life in Australia, the applicant said that he works part-time, from which he is able to pay his school fees and living expenses. His aunt continues to support him by providing accommodation. She is the director of nursing at an aged care facility.

26. In response to the Tribunal’s query, the applicant said that he had wanted to apply for a Regional Sponsored Migration Scheme permanent residence visa, based on being nominated for the position of Building Manager at the nursing home, which was willing to sponsor him. The Tribunal raised with the applicant the fact that this appeared to indicate that his intention was not to remain in Australia temporarily. The applicant indicated that this was one option he was interested in. He said that his friend in Rangoon is building two new hotels, and it will be at least 18 months before they are completed. This will be around the time that he expects to complete his Diploma of Hospitality Management, so it made sense to return to Myanmar at this time. When asked why he did not return there now to explore the prospect of employment as an engineer, the applicant said that salaries there are low compared to Singapore and Australia, and the working environment there is less systematic. The applicant said that if he has the chance, he wants to finish the Diploma of Hospitality course so he would have choices for his future. He said he would go wherever there was work.

27. The applicant’s agent submitted that the applicant simply wanted to ensure he had the best career options possible, to support himself and his family, and was genuinely studying Hospitality as a plan B to his engineering. He further submitted that the applicant genuinely intended to return to his home country upon completion of that course.

28. The Tribunal has considered the first named applicant’s oral and documentary evidence carefully.  It has also had regard to the factors specified in Direction 53.

29. The Tribunal acknowledges that the applicant’s wife, children, elderly parents and a brother remain in Myanmar. It considers that his family there constitutes a significant tie to that country which may act as an incentive for the applicant to return, although it notes that the applicant has returned to Myanmar only 3 times since coming to Australia in late 2009. While the Tribunal acknowledges that the applicant said that this was due to the expense of return travel, the Tribunal considers that this is inconsistent with his assertion that his family ties were a significant incentive for him to return at the conclusion of his current course.  The Tribunal also considered the fact that prior to coming to Australia, the applicant lived and worked in Singapore for a number of years while his family remained in Myanmar, to be indicative that his family ties in his home country may not provide a strong incentive for him to return there.  Conversely, the Tribunal considers that the practical support provided by the applicant’s aunt, who is Australian, has provided, and would continue to provide, an incentive for him to seek to remain in Australia indefinitely.

30. The Tribunal has considered the applicant’s evidence that he would return to Myanmar upon completing the Certificates III and IV in Commercial Cookery and Diploma in Hospitality because he plans to either find work as an engineer there or set up a restaurant business with a friend in Rangoon. However, it does not give this assertion great weight as it considers that if he had a genuine intention to pursue either of these paths, he could have done so by now, given he has Singaporean and Australian engineering qualifications, Australian work experience in the hospitality industry, has now completed the Certificate III in Commercial Cookery and ran his own business in Myanmar for a number of years. The Tribunal does not accept as plausible the applicant’s explanation that he still needed to complete a Certificate IV of Commercial Cookery or Diploma of Hospitality in order to run a restaurant business, given his evidence that his friend already has some experience in this field. The Tribunal considers that the applicant would be suitably qualified and experienced now to pursue these options, if that were his genuine intention.  It does not consider that the courses that the applicant is presently enrolled in would add significant value to his career prospects. Although he argued that Australian qualifications are valued, he could not explain why the ones he had achieved already would not be sufficiently well-regarded for him to pursue his business and/or employment plans, or why he could not pursue commercial cookery and/or hospitality studies in Myanmar.

1. The Tribunal also gives weight to the applicant’s evidence that wages in Myanmar were lower than in Australia, and considers that this also provides a disincentive for him to return there.  The Tribunal gives further weight to the fact that the applicant indicated that he previously intended to apply for permanent residence in Australia based on an employer nomination, and that he was looking for work as an engineer both in Australia and overseas.  The Tribunal has regard to the fact that recent case law indicates that such intentions are incompatible with genuinely intending to stay in Australia temporarily: see for example, Saini v Minister for Immigration and Border Protection [2015] FCCA 2379, in which Cameron J held that the use of the word ‘genuinely’ in cl.572.223(1)(a) reinforced the impression that an applicant must unqualifiedly intend his or her stay in Australia to be temporary.

2. The Tribunal acknowledges that the applicant has been candid about his immigration and employment history, and that he wishes to maximise his chances of finding employment, particularly now that he is in his late 40s, but that does not allay the concerns held by the Tribunal regarding whether he intends to genuinely stay in Australia temporarily. 

3. The Tribunal acknowledges that the applicant has completed most of the courses he has enrolled in (with the exception of the Certificate IV in Commercial Cookery and the Diploma of Hospitality), and that he (as with any student) is entitled to enrol in a different field of study if he chooses; the question is whether he has done so as a genuine temporary entrant for study in Australia, or whether he has done so in order to maintain ongoing residence. The Tribunal concludes that it is for the latter reason.

4. 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).

5. 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

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

   Alison Mercer
   Member