AUNG (Migration)

[2017] AATA 2435

AUNG (Migration) [2017] AATA 2435 (17 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Htun Lynn AUNG

CASE NUMBER:  1609639

DIBP REFERENCE(S):  BCC2016/884329

MEMBER:Mara Moustafine

DATE:17 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 17 November 2017 at 3:04pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 – Applicant wished to study Advanced Diploma of Hospitality – No evidence of job offers in home country – Nominated for a Temporary Work (Skilled) visa – Not a genuine temporary entrant

LEGISLATION
Migration Act 1958 ss 65, 499
Migration Regulations 1994 Schedule 1, Schedule 2 cls 572.223, 572.223(1)(a)

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 25 July 2012 on a TU subclass 572 Student visa and was granted a subsequent TU 572 Student visa which was valid until 15 March 2016. On 3 March 2016 the applicant applied to the Department of Immigration for another TU 572 visa to undertake a Certificate IV in Commercial Cookery, a Diploma of Hospitality and Advanced Diploma of Hospitality. The delegate decided to refuse to grant the visa on 14 June 2016.

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 he was not satisfied that the applicant genuinely intended to stay temporarily in Australia. Among other things, the delegate was concerned that the applicant had only provided very general information as to the value of his proposed courses to the applicant’s future; with no evidence of specific business opportunities or job offers on his return to Myanmar; his incentive to return to his home country; and his travel history of departing Australia for only 42 days since arriving in Australia in July 2012. The delegate’s view was that the substantive objective of the applicant’s study was to maintain residence in Australia.

5. The applicant applied to the Tribunal for a review of this decision on 28 June 2016.

6. The applicant was represented in relation to the review by his registered migration agent.

7. On 8 November 2017, the applicant’s migration agent provided to the Tribunal a submission and documents in support of his claims, including a Confirmation of Enrolment in Advanced Diploma of Hospitality (9 October 2017 to 15 October 2018), created on 13 September 2017;  and completion certificates and academic transcripts for Certificate III, Diploma and Advanced Diploma of Engineering completed in 2013 and 2014), Diploma and Advanced Diploma of Process Plant Technology (completed in 2015 and 2016), Certificate IV in Commercial Cookery (completed 16 July 2017) and Diploma of Hospitality Management (completed 1 September 2017). The agent submitted that the applicant wished to remain in Australia in order to complete his Advanced Diploma of Hospitality in October 2018 to upgrade his skills and enhance employment prospects.

8. The applicant appeared before the Tribunal on 15 November 2017 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. 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)     …

12. 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.

13. 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.

14. 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 Myanmar and Australia, his immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.

15. The applicant told the Tribunal that he originally came to Australia in 2012 to undertake studies in Engineering (Oil and gas) and other technical courses under the influence of his parents, with the intention of returning to Myanmar to work in those industries. However, while working part time in a restaurant during that time, he realised that he was more interested in cooking. He said he did not abandon his studies in Engineering because he did not want to let down his parents. But on completion, he told his parents that he wanted to be a professional chef, which they have accepted. He has now completed all the cookery and hospitality courses, for which he sought the visa under review, with the exception of his Advanced Diploma in Hospitality, which he started last month and is due to complete in October 2018. Based on his study record and evidence submitted the Tribunal accepts that, while the applicant changed direction after four years of study of technical subjects, he has made good academic progress in his courses.

16. Although the applicant initially told the Tribunal that he intended to return to Myanmar on completion of his Advanced Diploma in Hospitality in October 2018, the Tribunal is concerned that one year out from the end of his current course, he does not have a concrete career plan or any job offers there. The applicant merely spoke about the high demand for high level chefs who were fluent in English based on his Internet research and said he had discussed with his parents the possibility of establishing his own business.

17. By contrast, the applicant told the Tribunal that he had been employed consistently on a part-time basis in restaurants in Australia – 4-5 years as a cook in a Western food restaurant and almost one year as a chef at an Asian cuisine restaurant, earning around $400 per week.

18. The Tribunal’s reservations about the applicant’s intention to stay in Australia temporarily are compounded by the fact that, according to Department records, he was nominated for a Temporary Work (Skilled) visa by ACA Australia on 10 October 2017. The Tribunal raised this information in accordance with s.359AA of the Act. The applicant responded that he had previously not been ‘planning to apply’ for this visa, but to go back to Myanmar and start a business. However, his new employer wanted to keep him because of his skills and work attitude. After discussion with his parents, he decided that it was a good opportunity to build up his knowledge, skills and experience for his future career, including running a business back home. He said he wanted to finish his course first, then ‘do the next thing’. As discussed with the applicant, while the Tribunal does not question the benefits the applicant describes, it is not satisfied that being nominated for a Skilled work visa is consistent with a genuine intention to stay in Australia temporarily as a student.

19. While the applicant has family ties to Myanmar, where his parents live, the Tribunal is not satisfied that, in themselves, these constitute a strong incentive to return home. The Tribunal notes that the applicant’s aunt is an Australian citizen, with whom he lives in Australia and his mother has visited him here last December, while the applicant has only left Australia for 42 days since his arrival in July 2012.  

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