Chong (Migration)

[2018] AATA 1906

Chong (Migration) [2018] AATA 1906 (7 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jia Haur Chong

CASE NUMBER:  1700327

DIBP REFERENCE(S):  BCC2016/3624203

MEMBER:M. Edgoose

DATE:7 May 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 07 May 2018 at 8:31am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine Temporary Entrant – Earning capacity – Regular contact with family overseas – Family ties in Australia – Intention to stay – Current course of study – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, 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 on 21 December 2016 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 October 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 visas 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 intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 23 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 intends genuinely to stay in Australia temporarily.

7. 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?

8. 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.

9. 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.

   Background

10. The applicant gave evidence at hearing that he first arrived in Australia on 22 March 2013 on a tourist visa. While onshore the applicant was granted a 572 student visa on 22 September 2014 which expired on 29 October 2016.

11. The applicant is from Malaysia and applied for the visa on 31 October 2016 and the delegate refused to grant the visa on 21 December 2016 on the basis that the ‘Genuine Temporary’ entrant criterion, or GTE criterion which applies to every student visa, was not met.

12. The applicant stated to the Tribunal that he has only returned to Malaysia on one occasion in October 2014 since arriving in Australia. The applicant told the Tribunal that his father has come to visit him in Australia on one occasion.

13. The applicant informed the Tribunal that he has visited Taiwan and Singapore and complied with the conditions of their visa and migration regulations. The Tribunals notes from the delegates decision that the applicant was an unlawful non-citizen for 2 days between 29 October 2016 and 31 October 2016. The Tribunal gives no weight to the unlawful 2 days.

    Circumstances in home country

14. Before coming to Australia, the applicant had completed a Diploma in Cooking in 2007 at an international college in Malaysia and had worked as a bartender for four years where he was paid AUD $700 per month. The Tribunal does not accept that the applicant’s earning capacity back in Malaysia is an incentive for him to return to Malaysia.

15. The applicant informed the Tribunal that his parents and one sister live back in Malaysia and his second sister and brother live in Australia. The applicant stated to the Tribunal that his parents are both retired and that his sister in Malaysia works as an assistant programmer for a gaming company. The applicant told the Tribunal that his sister in Melbourne, Australia is a migration agent and works for STG International Service Group and that his younger brother is on a student visa.

16. The applicant informed the Tribunal that he has been able to manage personal relations with his parents and sisters back in Malaysia while living in Australia by making contact on a weekly basis via the social media application WeChat. In these circumstances the Tribunal does not consider the applicant’s personal connections overseas as a distinct incentive for the applicant to cease residence in Australia.

    Circumstances in Australia and study history in Australia

17. The applicant stated to the Tribunal that he has not completed a course of study since being granted his 572 student visa while onshore on 22 September 2014. The Tribunal is concerned that the applicant has not completed a course of study and finds that the student visa program is being used to maintain ongoing residence in Australia.

18. The applicant informed the Tribunal that he is currently working 20 hours per week part-time at Sushi Sushi in Ivanhoe and earns AUD $21 per hour. The applicant informed the Tribunal that he currently lives in the CBD of Melbourne with a friend and pays AUD $500 per month for rent. The Tribunal finds that the applicant’s earning capacity in Australia outweighs the applicant’s earning capacity back in Malaysia as discussed in paragraph 14 and this would be an incentive for the applicant to remain in Australia.

19. The applicant stated to the Tribunal that his sister lives in Bayswater and is in the process of applying for a dependent visa and that her partner is a New Zealand citizen. The applicant informed the Tribunal that his brother lives near the CBD of Melbourne. The Tribunal finds that the applicant’s significant ties in Australia present as a strong incentive for the applicant to remain in Australia.

20. The applicant stated to the Tribunal that he has no issues of concern back in Malaysia but does not want to return to Malaysia. The applicant stated to the Tribunal that he wants to remain in Australia. The Tribunal finds that the student visa program is being used to circumvent the intentions of the migration programme and that the applicant is not a genuine temporary entrant.

    Value of the course to the applicant’s future

21. The applicant stated to the Tribunal that he has no future plans regarding a job and family back in Malaysia and “I don’t want to stay in Malaysia” and doesn’t want or plans to go back.

22. The applicant told the Tribunal that he wants to open a Japanese restaurant in Australia in the future or in Singapore if he is not granted the visa. When pressed by the Tribunal the applicant stated “I haven’t really thought about the details about my future business I just want to see if the visa would be granted”. The Tribunal does not accept the applicant’s future plans and that the applicant is using the student visa program to maintain ongoing residence in Australia and that the applicant does not genuinely intend a temporary stay in Australia.

23. The applicant submitted to the Tribunal a COE for a Diploma of Business (AAT folio 8) through Barkly International College which commenced on 15 February 2018 and is due to be completed by 14 September 2018. At hearing the applicant was asked to inform the Tribunal about his current course of study and the applicant was not able to do so. The Tribunal asked the applicant how many times he had attended his course since 15 February 2018 when the course commenced. The applicant responded that he had attended on two occasions since 15 February 2018. The Tribunal asked the applicant can you tell the Tribunal anything about your current course of study and the applicant responded no. The Tribunal has little confidence that the applicant will complete this course of study and that the applicant is not a genuine student or genuine temporary entrant.

24. Overall, the Tribunal is not persuaded that the applicant genuinely intends to return to Malaysia. The Tribunal finds that the applicant is not a genuine temporary entrant and a genuine student and genuinely intends not to stay in Australia temporarily.

25. There is no relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, political circumstances in the home country, civil unrest in the home country, 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.

26. 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).

27. 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.

28. 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

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

    M. Edgoose
    Member