Bin Jokumil (Migration)

Bin Jokumil (Migration) [2019] AATA 1858 (18 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rudy Bin Jokumil
CASE NUMBER:  1718099
HOME AFFAIRS REFERENCE(S):           BCC2017/2234972
MEMBER:Vanessa Plain
DATE:18 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 18 March 2019 at 12:32pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – no response to s 359(2) invitation – not entitled to appear before the Tribunal – genuine temporary entrant – reason for studying in Australia – value of course – not consistent with current level of education – job prospects – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 24 June 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.
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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
By 11 letter dated 11 January 2019, the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the applicant to provide further information to the Tribunal. The Tribunal did not receive any response to that written invitation.
The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being the address provided by the review applicant in connection with the application for review.
When an applicant is invited to provide further information under s.359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information: section 359C(1) of the Act.
The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3) of the Act. Crucially, the effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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?
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.
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.
The male applicant in this case is a 38 year-old Malaysian national who first arrived in Australia on 5 April 2017 for a five (5) day holiday on a tourist visa valid for approximately three (3) months.
Prior to coming to Australia, the applicant completed secondary school at First Academy Kota Kinabalu in Malaysia, presumably many years prior.
On 24 June 2017, the applicant was granted a bridging visa (subclass 010) which permitted the applicant to remain in Australia during the processing of his application for a Student Visa (Temporary) (class TU subclass 500).
According to the Delegate’s decision record, the applicant is enrolled in courses of study in Australia which he proposes to undertake over a period of approximately 2 ½ years, as follows:
·Certificate I in EAL
·Certificate II in EAL
·Certificate III in EAL
·Diploma of Leadership and Management
The Tribunal has had regard to the applicant’s circumstances in Malaysia. In the Genuine Temporary Entrant Statement and his original application to the Department, the applicant makes the following claims:
·As to the reason for choosing to study in Australia rather than Malaysia, the applicant asserts that while there are many institutions of higher learning in Malaysia, an Australian qualification is internationally recognised and the cost of obtaining it is lower than in the United Kingdom. He further claims that a foreign qualification where the quality of education is widely recognised, is more valued by companies in Malaysia;
·As to the applicant’s personal ties to Malaysia, the applicant is married with three (3) minor children, none of whom are accompanying him in Australia. Further, although employed for 10 years as a clerk, as at April 2017, the applicant is unemployed in Malaysia.
The Tribunal does not accept the applicant’s bare assertions that an Australian qualification is more valuable to companies in Malaysia than an equivalent course in Malaysia, because the applicant did not provide the Department or the Tribunal with any verifiable evidence of these assertions. Moreover, there is no verifiable evidence before the Tribunal that the cost of obtaining a tertiary qualification in Australia is lower than in the United Kingdom. Further, notwithstanding that the applicant has a wife and 3 minor children in Malaysia, the applicant’s lack of employment to return to in Malaysia may serve as a greater incentive to remain permanently in Australia. On that basis, the Tribunal does not consider there to be significant enough incentives for the applicant to return to Malaysia.
The Tribunal has had regard to the applicant’s potential circumstances in Australia. In the Genuine Temporary Entrant Statement and his original application to the Department, the applicant makes the following claims:
·He has not completed further studies after his completion of Secondary School. He proposes to study in Melbourne at Education Access Australia because he has a friend who is studying for his qualification there and what interests him most, is that the course can be conducted in a simulated workplace environment if required.
·After working for a finance company as an office clerk for 10 years, his career prospects look bleak without a tertiary qualification. He has a lot of hands on experience in office administration, but asserts that the lack of qualification has deprived him of promotions and better job opportunities.
·He intends to share the rental of a room in the Melbourne CBD with a friend for the duration of his studies.
The Tribunal does not accept these claims to be those of a genuine student. The applicant has not stated what job opportunities or promotions he has allegedly been deprived of due to a lack of qualification in the fields of study he proposes to undertake in Australia. Further, the applicant’s primary motivation for choosing his fields of study appears to be based on the fact that he has a friend doing the same course, which demonstrates that he has not undertaken a reasonable level of research into the proposed courses and education provider. The applicant has not explained why, after 10 years, he has not sought to undertake tertiary studies in his own country as a means of improving his prospects for obtaining better job opportunities. Further, it is unlikely that the benefit of a course being conducted in a simulated workplace environment would outweigh the actual financial cost of the course itself. Put simply, although the Malaysian job market is competitive, the applicant desires to remain relevant, or a valuable asset to a potential employer and wishes to climb the corporate ladder, these reasons do not sufficiently explain why a tertiary education in Malaysia, rather than in Australia, would not adequately enable the applicant to achieve his objectives.
While it is not uncommon for an applicant to re-educate themselves or make a change in study plans or work pathways, the Tribunal finds that it is not consistent with the behaviour of a genuine student to seek to change a pathway shortly after arriving in Australia on a tourist visa. On that basis, the Tribunal is not persuaded that the applicant isn’t simply proposing to undertake the courses of study in order to gain a student visa with the primary objective of maintaining ongoing residence in Australia.
The Tribunal has had regard to the value of the courses of study to the applicant’s future. In the Genuine Temporary Entrant Statement and his original application to the Department, the applicant makes the following claims:
·He intends to continue pursuing a career in business and office administration and climb the corporate ladder in this area. Obtaining a Diploma of Leadership and Management will allow him to qualify in other areas of business too.
·The job market in Malaysia is highly competitive. If he does not push himself to become further qualified, it will not only limit his livelihood to support his family, he would eventually become burnt out and demotivated.
·He plans to undertake the studies to ensure he remains relevant or be a valuable asset to any company he wants to work with in Malaysia. He wants to learn how to plan, design, apply and evaluate solutions to problems and have more opportunity to provide better financially for his family.
The Tribunal finds that while employment and remuneration prospects may improve slightly due to the completion of the nominated courses of study, the applicant has not demonstrated what potential remuneration he could expect to receive in Malaysia, compared with Australia using the qualification gained from the proposed courses of study. Further, the proposed courses of study are not consistent with the applicant’s current level of education and the applicant has not demonstrated, beyond mere assertion, how the proposed courses of study will actually improve his job prospects in Malaysia and how the courses of study are actually relevant to the applicant’s proposed future employment in Malaysia, or elsewhere. On that basis, the Tribunal is not satisfied that the applicant has demonstrated the value of the proposed courses to his future.
The Tribunal has had regard to the applicant’s immigration history. In his original application to the Department, the applicant declared previous travel and visas to Indonesia, Brunei and South Korea. There is nothing before the Tribunal to indicate that the applicant has experienced visa refusal, cancellation or immigration issues in Indonesia, Brunei and South Korea, or any other country. Further, there is nothing to indicate that the applicant has in fact commenced any of the proposed courses of study since the time of his visa application on 24 June 2017.
There is no evidence before the Tribunal regarding the following factors indicated by Direction 69:
·Political or civil unrest in Malaysia
·Military service commitments in Malaysia
·Family or community ties with Australia presenting as a strong incentive to remain in Australia
·Evidence that the student visa program is being used to circumvent the intentions of the migration programme
·Any application for a visa by a secondary applicant
·Whether the student visa application may be used primarily for maintaining ongoing residence
·Any other relevant information provided by the applicant that may be either beneficial or unfavourable to the applicant.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.
Having not provided additional information to the Tribunal as requested, the applicant is relying on the strength of previous assertions made by him. In all the circumstances, the Tribunal does not accept the applicant’s assertions claiming to be a genuine temporary entrant.
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).
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Vanessa Plain
Member

[2019] AATA 1858

18 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Intention