Candra (Migration)

[2019] AATA 5333

Candra (Migration) [2019] AATA 5333 (1 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syaiful Candra

CASE NUMBER:  1703873

HOME AFFAIRS REFERENCE(S):          BCC2016/4033832

MEMBER:Peter Booth

DATE:1 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 01 August 2019 at 2:07pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – reasons for studying in Australia – relevant courses not readily available in home country – family and economic ties to Indonesia – decision under review remitted

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 15 February 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 30 November 2016. 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 applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 20 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

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

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 is a genuine temporary entrant.

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

8. 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?

9. 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.

10. 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.

11. The applicant gave evidence at the hearing the substance of which was as follows.

12. The applicant arrived in Australia on 10 July 2009.  At that time, he accompanied his wife who was the holder of a Subclass 572 (Student) visa.  He said that between 2009 and 2015 or 2016 he was at home looking after children and working part-time.  He had a dependent visa, consequent upon his wife’s student visa.

13. In 2015 the applicant separated from his wife and she returned to Indonesia.  In 2016 he commenced a Certificate III course in Commercial Cookery but did not complete the course. He said the reason for his non-completion was related to his separation from his wife. He said he enrolled in the Commercial Cookery course because at the time, he was working in a small café and had become interested in cooking.

14. After separating from his wife, the applicant moved to Melbourne and enrolled in a Light Vehicle Maintenance course.  The applicant had worked as a mechanic in his home country for approximately 10 years prior to arriving in Australia.  In order to work as a mechanic, he had undertaken a course of study comprising three years at high school.  He completed a Certificate IV in Automotive Mechanical Diagnosis in May 2019, and is currently enrolled in a Diploma of Automotive Technology which commenced on 10 June 2019 and will be completed in about February 2020.

15. When asked by the Tribunal why the applicant needed to study automotive courses having already done so in his home country, and has worked as a mechanic for 10 years, he said that since 2007, most cars in Indonesia require computer diagnostics.  He had not studied such matters in Indonesia, and said that the courses were not readily available in Indonesia.

16. The applicant said that his immediate family in Indonesia comprised nine siblings, his estranged wife, and their daughter.  He owns a house in Indonesia which he estimates to have a value of about AU$100,000 and some land, the value which he estimates to be in the vicinity of AU$65,000.  The applicant estimated his potential income as a mechanic to be at about AU$3000 each month if he owned the business, and about AU$500 if he did not.

17. The applicant had provided information to the Tribunal which was generally consistent with his evidence at the hearing. The applicant’s migration agent drew the Tribunal’s attention to a ‘Business Cooperation Agreement’ provided to the Tribunal on 18 June 2019, and which was dated 24 April 2019.  This agreement purports to be an agreement for the applicant to work as a mechanic in his hometown.  When asked about this document, the applicant told the Tribunal that it was an agreement to commence an automotive mechanics business, and it was to utilise his own land. He said that he would provide the tools and manpower, and that his former employer would provide the employees.  He said that he would use an existing building as a workshop and intended to carry on business as an automotive repair shop.

18. The applicant gave frank and honest advice at the hearing and the Tribunal is satisfied that he is a genuine temporary entrant.  The period from 2009 to approximately 2016 is of some concern, and that it is to be noted that for the bulk of this time the applicant was engaged in childcare and other domestic matters.  Once his wife returned to Indonesia, the applicant set about undertaking studies in automotive maintenance.  Whilst initially troubled by his history of study, the Tribunal is satisfied by the applicant’s responses, namely that he needed to undertake further studies relevant to computer diagnostic techniques in order to conduct modern automotive maintenance. 

19. The applicant has also demonstrated both family and economic ties to Indonesia.  Notwithstanding the extended period of residence in Australia, the Tribunal is satisfied that the applicant has connections to Indonesia, and will in all likelihood return to his home country.  Importantly, the applicant provided cogent evidence of a business plan including an agreement, pursuant to which he will commence an automotive maintenance business.

20. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

21. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

22. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

23. 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

24. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Peter Booth
    Member