1515763 (Migration)

[2016] AATA 3281

1515763 (Migration) [2016] AATA 3281 (17 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Yoshi Tsuzuki

CASE NUMBER:  1515763

DIBP REFERENCE(S):  BCC2015/2880003 CLF2015/71874

MEMBER:Michelle Grau

DATE:17 February 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 17 February 2016 at 10:26am

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 on 29 October 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 2 October 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he was not satisfied the applicant intended a genuine visit or that the applicant would abide by visa conditions.

5. The applicant appeared before the Tribunal on 28 January 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

8. In the present case, the visa applicant seeks the visa for the purposes of  finding a further study or working opportunity in Australia.

9. Clause 600.222 requires that if a student visa holder the tourist visa is not sought for the purpose of commencing, continuing or completing a registered course in which the applicant is enrolled.  While the applicant last held a student visa since entering Australia, at the time of application he was not enrolled in a registered course.

10. According to movement records the applicant’s student visa was granted on 30 March 2015 and ceased on 4 October 2015. According to his statement provided at review the applicant had completed a certificate IV in business and studied English before applying for the visitor visa. He intended to improve his English and study basic business. After completion of the study he was trying to find a job or postgraduate school to study or research. He is over 50 years old but wanted to apply for academic positions and government institute positions in Australia to gain a skilled migration visa. He has a Doctorate from Japan. He is considering starting a new post graduate research degree as his study is more than 20 years old and he would like to stay in Australia temporarily to find the next opportunity. One of the other options was an idea of a TESOL course, but he has not decided yet.  The applicant claimed it would be difficult for him to find an opportunity in Japan and he has his books and documents in Australia and considering the moving costs it would be better for him to find the next opportunity in Australia. He would be glad to reduce the time to visit from 1 October 2016 until 1 April 2016.

    Hearing summary

11. At hearing the applicant confirmed he finished his doctorate in Engineering in Tokyo in 1989 and he was employed in various research or lecturing positions in Japan either on term contracts or part time or casual positions since 2001. His last position finished in February 2010 and he continued to look for a job for two and half years but to no avail. He looked overseas and decided to do some study in Australia to assist him to find another position. He is divorced and has contact with his father and occasionally with his brother in Japan.

12. He came to Australia and commenced a civil engineering doctorate at UQ in January 2013 but he withdrew in September 2014 as he and the supervisor did not agree on the progress or framework of the PhD.  It was difficult for him to communicate and to fix the problem with the PhD and he could not pass, so he withdrew and applied for visitor visa for 6 months, which was granted. He tried to find a job or other university but could not find any. He obtained another student visa to study a Certificate IV in Business between March and September 2015. He has continued to apply for jobs in Australia and New Zealand.

13. The tribunal expressed concern that the applicant did not intend to return to Japan and wanted to stay permanently in Australia. The applicant confirmed he has researched skilled migration options and knows because of his age he will have to secure a lecturer or research position, but it is easier in New Zealand as the age limit is 55 years. He wants to find the next thing to do and it could be a job, a PhD or a Master’s degree. He had applied to James Cook University (JCU) and QUT, but that was not successful.  He had applied to Sydney Uni in November but had not received a response.

14. The tribunal expressed concern that the applicant might not have the funds to support himself on a visitor visa and may work. The applicant said his father sends him money and he has tried to find a casual job when he was on a student visa but it was difficult. He worked providing driving instruction sometimes and doing translations. He earned $200 in January  for translations. He had about $2000 in the bank from his father. His father is a retired engineer and on a pension.

15. The tribunal asked the applicant what he would do at the end of another visitor visa (if granted) and he had not found a job. The applicant hesitated for some time and said he did not want to think about it and did not have a plan.  He said if he found a partner he could try to make a family here. The applicant said before he came to Australia he made many job applications but none were accepted and he does not want to go back to Japan. He understands he cannot work on a visitor visa.

16. The tribunal asked again if he were granted a visitor visa for another year what he would do he is unable to find another avenue to stay in Australia at the end of the visitor visa. The applicant hesitated and then asked if he could get a year visitor visa and would then ask for another visitor visa after that.

17. The tribunal expressed doubts that the applicant intended a genuine visit and that he would return to Japan at the end of the visa. The applicant said he had a problem with the IELTS test and got a 6, but needed a 7 for JCU and he could improve his English some more.

18. The tribunal put s359AA information to the applicant contained in his application fee waiver request due to his lack of funds. The information was that he closed his apartment in Japan and brought all his personal belongings with him; he withdrew from the PhD and did not have enough income earning only $17 an hour and it only covered his tuition; and he had insufficient funds for the application fee. The information was relevant as it indicated the applicant lacked incentive to return to Japan and lacked funds to support himself, which indicated he might not intend a genuine visit, abide by conditions, or have sufficient funds to visit.

19. The applicant said the conditions were not easy and it was not easy to find a good position or full time job in Japan so his purpose of stay is a controversy, but he likes Australia better than Japan and wants to look for more possibilities to do more here.

    FINDINGS AND REASONS

20. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

21. The applicant is a 50 year old divorced Japanese male who arrived on a student visa in January 2013 but he withdrew from the course in September 2014 and applied for a visitor visa. He was granted a visitor visa  on 8 October 2014 valid until 30 March 2015. He then applied for a student visa which was granted on 30 March 2015 until 4 October 2015. On 2 October 2015 he applied for another visitor visa, which is the subject of this review.

22. The tribunal accepts the applicant has held student and visitor visas in the past and there is no evidence to suggest he has not substantially complied with the last substantive visa held or any subsequent bridging visa. The tribunal accepts he meets cl. 600.211(a).

23. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

24. The tribunal was concerned that the applicant may study or work in breach of the conditions as the applicant had limited funds and relied on his father providing him a small amount of money. However, the tribunal accepts that the applicant has in past abided by visa conditions and this weighs in the applicant’s favour.

25. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

26. As discussed at length with the applicant at hearing the tribunal was concerned that the applicant had no incentive to return to Japan and did not want to or plan to return to Japan. It was evident the applicant was seeking an alternative life and trying to find employment in Australia. The tribunal considers it is not unusual that one might look for job opportunities while on a visitor visa, and such activities are not precluded on a visitor visa.

27. The tribunal accepts the applicant has travelled to Australia previously and returned and he has abided by visa conditions in the past. However, the tribunal considers the applicant’s clear intention is not to return to Japan. Further, he has no incentive to return to Japan.  On his own evidence he has been unemployed for two and half years before leaving Japan, he has no property or family ties, other than his father and brother, with whom he has occasional contact. His evidence was he prefers Australia and wants to find a way to stay permanently. The tribunal was concerned that when asked about his intentions or plans if he still had not found work after another visitor visa, that he did not mention returning to Japan, but rather that he had no plans, did not want to think about, maybe could find a partner or job or ask for another visa.

28. The tribunal considers the applicant has been applying for jobs or study opportunities before he left Japan in 2013 and has continued to do so while in Australia, but he has not secured a full time position to enable him to migrate. The tribunal is concerned that the applicant will not return to Japan at the end of another visitor visa as he has no incentive to return to Japan and does not want to.

29. The tribunal accepts the visa applicant has previously abided by visa conditions and returned to Japan, but the applicant has been unemployed in Japan for two and half years and he has continued to seek ways to remain in Australia and to express his intention to remain here, two years after last arriving. Further, he has limited personal ties in Japan and no employment or financial ties and the tribunal has serious concerns that he can support himself in Australia. The tribunal considers the applicant’s prior visa history does not overcome the concerns the Tribunal has that the visa applicant does not genuinely intend to visit Australia temporarily.  

30. The Tribunal is not satisfied that the visa applicant’s personal, employment and financial circumstances will encourage the visa applicant to return to Japan after an approved stay.

31. For the above reasons the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are not met.

    DECISION

32. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Michelle Grau
    Member