CHONG (Migration)

[2019] AATA 1459

CHONG (Migration) [2019] AATA 1459 (29 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kon Vui CHONG

CASE NUMBER:  1718751

HOME AFFAIRS REFERENCE(S):           BCC2017/1931059

MEMBER:Warren Stooke AM

DATE:29 April 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 29 April 2019 at 4:31pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not entitled to appear before the Tribunal – genuine temporary entrant – poor academic progress – has not completed any course of study since arrival – intention to comply with visa conditions – no evidence of breach – purpose of travel and stay – decision under review affirmed

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 2 August 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 31 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 applicant had not provided a credible career plan or reasons as to why the intended studies could not be undertaken in the home country. The applicant was not considered to have been a genuine temporary entrant for the purposes of study.

4. On 17 January 2019, the Tribunal invited the applicant to provide information regarding an enrolled registered course of study and support for arguments pertaining to the status of a genuine temporary entrant for the purposes of study, which was required to be provided by 31 January 2019. The invitation letter included the following statement:

   “If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.”

5. On 1 February 2019, at 6.18pm the Registered Migration Agent provided the Tribunal with a response to the correspondence requested in the correspondence of 17 January 2019. Given that the response was post the required date of 31 January 2019, the applicant has lost the right to a hearing and accordingly, the Tribunal has proceeded to determine the matter without recourse to a hearing.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 applicant for entry and stay as a student.

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

9. 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?

10. 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, which is attached to this decision, 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.

11. 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.

12. The applicant is a 40 year old from Malaysia who completed a Certificate of Mechanical Technology in 2011, whilst resident in Malaysia and prior to entry to Australia in 2011, 2014 and 2017 on visitor visas.

13. The delegate noted in the decision the circumstances pertaining to the applicant’s purpose for study in Australia, as follows:

    “In the applicant's Statement of Purpose, the applicant stated that they have been employed in various fields of work, including spray painter, mechanical related work as a production/ assembly/quality control line technician and more recently as an air conditioner technician. The applicant stated that they could not see themselves working as a technician for ever, and are seeking to study the proposed courses so that they could become more proficient in English and gain management knowledge and leadership skills that would enable them to be able to find a better job back in Malaysia. The applicant is currently unemployed and has commenced the Certificate IV in EAL (Further Study).”

    “In the applicant’s statement of purpose the applicant states that upon completion of the proposed course they will return to Malaysia and will be better prepared to work at different positions in similar industries and ultimately find a better job requiring English skills. I note that the applicant's statement of purpose states that with the knowledge gained and previous work experiences, the applicant believes it would not take long to gain a manager position once they return to Malaysia.”

14. Further, the applicant submitted the following explanation, in response to the delegate’s decision:

    “After completing studies in Malaysia, I have changed several work positions in Australia, and I found there is less opportunity for me to get promotion in my company with the degree I was holding. So I made the decision to come to Australia for further study and to improve my working ability. I enrolled in EAL for Certificate IV and I am currently studying Diploma of Leadership and Management in Zarah Institution in Australia. I believe that management is a very good choice for me, because the struggle for most of the mechanical workers or technicians is when we work very well and try to get promoted; there is always a factor that turns us down, which is the lack of a qualification of management. To be honest this is what I believe is something that can take me from fieldwork to office, that's why I choose management as I think this could be my greatest advantage in coming future. Zarah is not the most famous education institution in Australia, but the one fits me most. As I have done some research on similar courses provided by other Institutes, I believe that those higher-end institutes such as Deakin and Swinburne, they are charging a higher tuition fees because of their reputation. However, I found that Zarah is offering courses with a more reasonable price, moreover, they tend to have a more practical course structure, compare to other institutions which I think the courses are less flexible and very theoretical. Based on my research and consideration, I eventually pick Zarah as my preference. After I enrolled in Zarah, I am always trying my best to follow teachers on classes and discussed with them frequently. I did not perform as the best group of students, but I did study genuinely and there is no study gaps in between my study, as everyone born with different capability, I try my best to find a way to work hard, put in efforts and do the best I can because when I finish my study and get back to my country, I want to get promoted and earn more salary than peers.

    As a conclusion, I did not demonstrate my background clearly, but I disagree that I am not genuine enough to study in Australia, during these period, I have showed that I did not miss any chance to study. For all those times, I maintain myself in education institutes, and there is no study gap in between, I have applied the appropriate level of student visa to maintain my study, and I have shown that I did progress some study even though I am in a tough situation where my visa's been refused.”

15. The Tribunal notes from the “Request for Student Visa Information under s.359(2) of the Migration Act 1958, that the applicant provided the following information:

    a.In the period from January 2000 to January 2017, the applicant was employed in the vocations of painting worker; mechanical worker and air conditioning technician;

    b.The applicant enrolled in an EAL Certificate IV between June 2017 and 1 January 2018; and a Diploma of Leadership and Management from March 2018 to March 2019; with neither course being completed; and an Advanced Diploma of Leadership and Management from April 2019, which has not been commenced;

    c.The applicant incurs total living expenses of $9860 per annum;

    d.The applicant has not provided any evidence of community ties with his home country; or community ties within the Australian community;

    e.The applicant intends to be employed as a “technical manager of technical after back in Malaysia”, however no specific career plans or potential employment opportunities have been identified or provided;

    f.The applicant expects to earn $50,000 per annum upon return to Malaysia, however no explanation was provided in relation to the source of those earning;

    g.The applicant has not provided any submissions concerning his family; including contact with his family;

    h.The applicant has not provided any information concerning his personal employment or earnings in Australia.

16. On the evidence and submissions before the Tribunal, the Tribunal finds that the applicant has not made any academic progress since arriving in Australia in the courses for which he held certificates of enrolment. As such, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay, as a student, in Australia.

17. Further, the paucity of information provided by the applicant does not adequately explain what the applicant has been doing in Australia since arriving on a tourist visa or how the applicant is sustaining himself. The evidence does identify that the applicant, since arriving in Australia, has not completed any course of study for which enrolment was granted.

18. The Tribunal finds that the applicant has not provided any evidence to the Tribunal that he has maintained a relationship with his home country. As such, the Tribunal finds, in the absence of relevant material, that there is no reason that would preclude the applicant from returning to his home country.

19. 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).

    Does the applicant intend to comply with visa conditions?

20. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

21. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

22. Whilst there is no evidence that the applicant has breached his visa conditions, the fact that the applicant has entered Australia three times on a Tourist Visa and in May 2017 applied whilst onshore for a student visa would suggest to the Tribunal, in the absence of any academic progression, that the main purpose of the application for a student Class 500 Visa is to maintain residency. As such, the Tribunal has no confidence that the applicant would comply with future visa conditions, if a visa were granted.

23. On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Conclusion on cl.500.212

24. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student because the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

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.

    Warren Stooke AM
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.