Balakrishnan (Migration)

[2018] AATA 3941

Balakrishnan (Migration) [2018] AATA 3941 (14 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Moorthy Balakrishnan

CASE NUMBER:  1716243

HOME AFFAIRS REFERENCE(S):           BCC2017/1083131

MEMBER:Stephen Witts

DATE:14 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 14 September 2018 at 11:36am

CATCHWORDS
MIGRATION – Student (Temporary)(Class TU) – Subclass 500 (Student) – genuine temporary entrant – no evidence of current enrolment status – failure to demonstrate significant personal ties to home country – work experience in home country – use of student visa program to extend stay– decision under review affirmed

PRACTICE AND PROCEDURE – applicant responded within relevant timeframes  – decision made on review

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 7 July 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 20 March 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 case 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 genuinely intends to stay in Australia temporarily.

4. On 13 August 2018 the applicant was invited by the Tribunal to provide advice regarding the applicant’s proposed course of study and his entry and stay in Australia as a student. The Tribunal provided a request for Student Visa Information questionnaire and requested that the applicant complete this questionnaire and return it to the Tribunal. The written information requested in the attached questionnaire was required to be received by the Tribunal by 27 August 2018. This information was provided to the Tribunal.

5. The applicant was informed by the Tribunal that if it did not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. The applicant was informed that he would also lose any entitlement he might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant replied within the timeframes requested and consented to have the review determined without a hearing.

7. On that basis the Tribunal proceeded to make a decision based on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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. The issue in the present case is whether the applicant genuinely intends to stay in Australia temporarily.

   Genuine applicant for entry and stay as a student (cl.500.212)

10. 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.

    Does the applicant intend genuinely to stay in Australia temporarily?

11. 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.

12. 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.

13. The applicant was provided a copy of Ministerial Direction 69 in the Tribunal’s letter to the applicant on 13 August 2018.

14. According to the delegate’s decision record, supplied by the applicant, the applicant first arrived in Australia from Malaysia on 20 January 2017 on a tourist visa.

15. According to the delegate’s decision record the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa on 20 March 2017. This application was refused by the delegate on 7 July 2017.

16. According to the delegate’s decision record the applicant was not a genuine applicant for entry and stay as a student as the applicant initially arrived on a tourist visa, and was now proposing to undertake a Certificate IV in Automotive Mechanical Diagnosis for a period of 2 ½ years.

17. According to the delegate’s record the applicant has not demonstrated significant personal ties to Malaysia that represent a significant incentive for him to return home, and that given the economic circumstances between Malaysia in Australia the delegate was not satisfied that the applicant has a significant incentive to return to Malaysia, and that the applicant did not demonstrate that he was a genuine temporary entrant.

18. According to the applicant’s s.359(2) questionnaire (AAT file folio 28-33) the applicant stated that he was currently enrolled to study a course here in Australia. The applicant stated that he has been enrolled in the following courses here: a Certificate III in EAL completed in September 2017, a Certificate IV in EAL completed in April 2018, a Certificate III in Light Vehicle Mechanical Technology which is due for completion in April 2019, and a Certificate IV in Automotive Mechanical Diagnosis due to begin on 29 April 2019 to be completed on a date that is not clear from the applicant’s information provided.

19. The applicant has not provided any up-to-date evidence of his current enrolment but the Tribunal accepts the information as presented by the applicant.

20. According to the applicant’s evidence he has worked for some years before arriving in Australia. He has worked since 2006 as a workshop assistant, a technician and welder, and in other roles in the oil and gas industry. The applicant did not provide any specific material in regard to any work he may be performing here in Australia.

21. According to the applicant’s evidence he has travelled back to his home country of Malaysia on one occasion in the past 18 months for a period of a few weeks. He also stated that he has visited Singapore during this period.

22. According to the applicant’s evidence the applicant has a mother, two brothers, five sisters, and a fiancé back in Malaysia. He stated that he owns jewellery back in his home country and will be the beneficiary from his parents of property in the future.

23. The applicant provided the following in regards to his future plans:

    “I have worked as an assistant mechanic and once I complete my studies in automobile and I would be able to obtain employment into nominated occupation in Malaysia and Singapore.”

24. The applicant provide the following in regards to any military service or other commitments:

    “I have no military service commitments or political or civil unrest in my home country. I have strong incentive to return home as I have recently engaged in Malaysia”

25. The applicant’s representative, on behalf of the applicant provided a statement to the delegate (delegates file folio 20-21) stating that the applicant is a genuine applicant for a student visa and that he recently arrived on a visitor visa and decided to study in Melbourne. He also stated that the applicant loves cars and has a passion to fix them.

26. The Tribunal has considered the material in the delegates file, specifically the statement provided to the delegate above, and to all the material in the AAT file, specifically the delegate’s decision record and the applicant’s 359(2) material, and the other communications sent to the applicant; and finds that the applicant is not a genuine applicant for entry and stay as a student.

27. The applicant has not provided reasonable reasons for not undertaking his study in his home country or region as similar courses are already available there specifically his automotive workshop courses which would be available back in his home country. It is also noted by the Tribunal that the applicant has a significant work history back in his home country including in workshops, and as a technician.

28. The applicant has not effectively addressed the extent of his personal ties to his home country and whether those circumstances would serve as a significant incentive for him to return to his home country.

29. The applicant has addressed any military service commitments that will present as a significant incentive for the applicant not to return to his home country or the extent of any political and civil unrest in the applicant’s home country that would influence the applicant’s motivation for applying for a student visa and the Tribunal does not find this adverse to the applicant.

30. The applicant has not addressed any of the economic circumstances contended by the delegate that would present as a significant incentive for the applicant not to return to his home country. These circumstances include consideration of the applicant’s circumstances relative to the home country and to Australia.

31. The applicant has not addressed the value of his proposed enrolments to his future other than as stated above and has not demonstrated the relevance of his proposed courses to his proposed future employment either in his home country or in a third country.

32. The applicant did not address the amount of time he has spent in Australia and whether his student visa would be used primarily for maintaining ongoing residence in Australia and why the applicant has undertaken a series of short inexpensive courses.

33. The Tribunal finds that the applicant is using the student visa program to circumvent the intention of the migration program and is not a genuine applicant for entry and stay as a student.

34. On the basis of the above, 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).

    Conclusion on cl.500.212

35. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

36. 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

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

    Stephen Witts
    Member