ANG (Migration)

[2018] AATA 5146

ANG (Migration) [2018] AATA 5146 (15 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Poh Teik ANG

CASE NUMBER:  1710175

HOME AFFAIRS REFERENCE:                BCC2017/243878

MEMBER:Lilly Mojsin

DATE:15 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 November 2018 at 12:09pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – genuine student – business studies to commence own business – seeking family reunion in Australia – applicant uncertain of next courses or proposed business plans – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 65, 499
Migration Regulations 1994, 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 28 April 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 18 January 2017. 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 review 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 was a genuine temporary entrant.

4. The applicant appealed that decision to this Tribunal enclosing a copy of the Department decision with his application for review.

5. The applicant appeared before the Tribunal on 16 August 2018 to give evidence and present arguments.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

7. The applicant was assisted in relation to the review by their registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In his application for the visa the applicant stated that he applied for the visa in order to study English and Business. The applicant was employed as branch manager for a manufacturing company in Malaysia. He said that he wished to upgrade himself. He quit his job and decided to improve his English proficiency. Once he had completed a diploma of business he intended to start a cafe business in Malaysia as cafe culture is getting more and more popular.

9. In a submission to the Tribunal the applicant stated that he wants to get a business degree from an Australian university and integrate theory and practice in order to organise his own business back in Malaysia. Having worked for 20 years with the company in Malaysia in the position of manager, the applicant opines that his traditional business philosophy and current qualifications are outdated. He really wants to learn advanced business philosophy. This will play a vital role in his future business and Australian education standards are one of the best in the world and highly regarded immolation society. He came to Australia with the visitor visa in 2016 in the wake of family turmoil. His wife had an affair with an Australian citizen and he came to Australia with the hope of getting his wife back but the result was not that good. His ex-wife and partner harassed and threatened him and they kicked out his eldest son. He was depressed and disappointed. Whilst he was attending his studies he was continually harassed by his ex-wife and partner.

10. The applicant provided a Confirmation of Enrolment to study Certificate III in Business commencing on 28 May 2018 and ending on 11 November 2018, Certificate IV in Business commencing on 12 November 2018 and ending on 12 May 2019, Diploma of Business commencing on 13 May 2019 and ending on 10 November 2019.

11. At the Tribunal hearing the applicant stated that he was studying business. He has not completed any subjects but would be studying such subjects as small financials, financial laws, planning, and product analysis. He has to study 8 subjects. He has completed financials, marketing and planning and legal act. After this course he wants to study for his Certificate IV.  He has not made up his mind, he really needs to see what standard he has reached.

12. The application supports himself from his savings from Malaysia. He brought funds with him. Asked about his career he said that he intends to open his own company in Malaysia. He needs to know how to manage a company. Asked how studying Australian tax regulations assists him opening his company in Malaysia, he said that it will be helpful as most business in Malaysia is similar to Australia. Asked why he did not study in Malaysia he said that the institutions in Australia are very famous. It will be well recognised and a better status in Malaysia.  Asked if he made any enquiries about studying in Malaysia he said he made those enquiries but he made up his mind to study in Australia.

13. Asked when his ex-wife and his child arrived, he said it was in 11 April 2016. He came to Australia 29 August 2016. He sent his child to Australia to look for a college to study. His wife followed. The applicant came initially to save his marriage and he came to find them. He could not find them initially but he found them in December 2016. He changed his mind and if he could not save his marriage he would sacrifice himself and open a business in Malaysia on his return.

14. In August 2016 the applicant resigned from his employment. He worked for the Hong Sing Group as a branch manager. He did not get another job. His purpose coming to Australia was to find his wife and child. He was not estranged from his wife when he left Malaysia.  His son was 18 years of age, he was to study business in a different college. In Malaysia he has one daughter and 3 sons and his mother. In Malaysia he would live with his children and his mother. His mother lives with his children who are 18, 17, 16 and 7. Asked who are supporting his children, he said his mother. She used to operate a garment place. 

15. The applicant is not in a relationship with anybody and he lives alone in Australia he does not work. Asked about what enquiries he has made regarding a business he stated that he will concentrate on business relating to construction and heavy equipment. When asked again about the type of business he said that he has not made up his mind.  Put he has no idea about remuneration as had not decided on the business. He said even though he has no idea about the business it will be something related to the business. Asked how does he know the course will have any relevance to his future career he said that the courses are relevant without knowing the regulations otherwise he would not be able to manage a company in the future.

16. It was put to the applicant that he is studying to stay with his family. He responded that the reason to study is so that he learns ways of operating business in Australia and it is better than in Malaysia. In Malaysia he is unable to learn the western way. The reasons why is to finish his study and have a qualification. At the moment he lives by himself he is not staying in Australia because of his family.

17. Asked about his previous education he said that he finished high school. The applicant work for his previous employer for 20 years, he has only travel to Singapore and Thailand for holiday trips and work trips for his previous employer.

    REASONS AND FINDINGS

18. 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.

19. 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.

20. 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.

21. 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.

22. As the applicant is a citizen of Malaysia there is no political or civil unrest in his home country. The applicant does not have any military commitments in Malaysia. The applicant does not work in Australia and states that he supports himself from his savings that he brought with him from Malaysia. The applicant has completed a Certificate 1 in Spoken and Written English. The applicant has provided a Confirmation of Enrolment in order to study a Certificate III & IV and a Diploma in Business.

23. The applicant has children in Malaysia and his mother. The applicant is single and is not in a relationship. These are incentives for the applicant to return to Malaysia.

24. In assessing whether the applicant intends genuinely to stay in Australia temporarily the Tribunal places greater weight on the following:

25. The applicant resigned from his employment in Malaysia and travelled to Australia in order to find his wife and son. He did not find them for some months and has been involved in litigation with his wife and partner. The applicant claims that his intention, once he completes his studies in Australia, is to open a business in Malaysia. The applicant was unable to provide any information about the type of company that he wished to start, other than to state that it would relate to construction and heavy equipment. The applicant was unable to explain how studying subjects relating to financial laws and legal regulations in Australia would assist him in his claimed career intention in Malaysia other than to state that studying in Australia would be helpful as most businesses in Malaysia are similar. The Tribunal does not accept that companies in Malaysia are similar to those in Australia or that financial tax regulations and laws in Malaysia are similar to Australia.

26. Whilst the Tribunal accepts that studying in Australia in the English is well regarded in Malaysia and he can learn western ways, the applicant whilst claiming he has made enquiries about studying a similar course in Malaysia was unable to provide a cogent reason for doing so. Therefore the Tribunal is not satisfied that the applicant has sound reasons for not studying in Malaysia.  Nor has the applicant provided any information regarding remuneration for his claimed future business enterprise in Malaysia. Further the applicant was not even sure what business he intended to open. The applicant’s responses were vague and unconvincing.

27. Further the applicant stated that after studying a Certificate III he wants to study a Certificate IV but he has not made up his mind, he really needs to see what standard he has reached. The Tribunal is not satisfied that the applicant has provided Confirmation of Enrolment as indicative of his study and career intentions but as a mechanism to remain in Australia.

28. Therefore, the Tribunal is satisfied that the applicant has created his claim of having a career intention of opening a business in Malaysia in order to explain his reason for remaining in Australia, where his ex-wife and son are located.

29. On the basis of the above, on balance, 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).

30. 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

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

    Lilly Mojsin
    Member