Chiou (Migration)

[2018] AATA 5824

Chiou (Migration) [2018] AATA 5824 (30 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Georgios Chiou

CASE NUMBER:  1714782

HOME AFFAIRS REFERENCE(S):          BCC2017/1586267

MEMBER:P. Wood

DATE:30 November 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 30 November 2018 at 5:33pm

CATCHWORDS
MIGRATION – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – not genuine temporary entrant – no evidence of course progression – self-employed – previous visa cancellation – breach of ‘no work’ condition – use of student visa program to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359C(1), 359(2), 360(3), 363A, 499
Migration Regulations 1994, Schedule 2, cls 500.211-500.218

CASES
Hasran v MIAC [2010] FCAFC 40

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 21 June 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 3 May 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 is a genuine temporary entrant.

4. On 13 August 2018 the Tribunal formally wrote to the review applicant’s solicitor pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal. The Tribunal did not receive any response to that invitation.

5. Of concern, the Tribunal observes that the applicant has not provided the Tribunal with any further information than that which he provided to the Department.

6. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the review applicant’s nominated representative, being the representative nominated by the review applicant in connection with his application for review.

7. Where an applicant is invited to provide further information under section 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: section 359C(1).

8. 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). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

9. At this point 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.

10. In these circumstances, the Tribunal has decided to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. 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?

14. 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.

15. 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.

16. In the circumstances of this case the Tribunal is forced to rely upon the information that the applicant provided to the Department in the original application and the delegate’s decision record. The Tribunal has read and had regard to all of this information.

17. The applicant is a 39-year-old divorced male from Greece who applied to study vocational english, business and leadership/management courses in Australia. Of concern to the Tribunal is that there is nothing before the Tribunal to evidence progression in any of these courses. He earlier completed technical college in Greece.

18. In his application the applicant did not declare any employment but did indicate that he is self-employed. The applicant also indicated that his future intention is to open his own business as a mechanic in Greece. The Tribunal is not convinced that the vocational english, business and leadership/management courses proposed are necessary to open a business as a mechanic in Greece.

19. The Tribunal observes, according to the delegate’s decision record, that the applicant previously had a subclass 976 visa cancelled on 25 May 2013 for breach of the “no work” (8101) visa condition. Unfortunately, the applicant did not provide the Department or the Tribunal with any explanatory information concerning this visa cancellation.

20. It is common knowledge that there is an economic disparity between Australia and Greece.[1] In the circumstances of this particular applicant the Tribunal is concerned that the applicant may be intending to use the student visa program primarily to maintain ongoing residence in Australia. The Tribunal considers the applicant’s economic circumstances in Australia, specifically the capacity to earn Australian dollars in ordinary employment, would present a significant incentive for the applicant not to return to Greece other than temporarily.

    [1] See also “World Development Indicators”, data.worldbank.org/products/wdi, November 2018

21. According to the delegate’s decision record, the applicant withdrew two subclass 457 temporary work visa applications on 28 March 2013 and 16 December 2013 when the business nominations were refused.

22. There is no or limited relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: whether the applicant has reasonable reasons for not undertaking the study in their home country, any potential military service in the home country, political circumstances in the home country, remuneration the applicant could expect to receive in the home country compared with Australia, and whether the applicant is seeking to undertake a course of consistent with their current level of education, circumstances in the home country relative to Australia or any other country and the applicant’s circumstances in the home country relative to others in that country.

23. 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 any additional information to the Tribunal, as requested, the applicant is mostly relying on the strength of his previous bare assertions. In this case the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia. In all the circumstances, the Tribunal does not accept the applicant’s assertions that he is a genuine temporary entrant.

24. 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).

25. 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.

26. 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

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

    P. Wood
    Senior Member