Choo (Migration)

[2019] AATA 1556

Choo (Migration) [2019] AATA 1556 (10 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Boon Ping Choo

CASE NUMBER:  1706279

HOME AFFAIRS REFERENCE(S):           BCC2016/3711588

MEMBERs:Rachel Westaway (Presiding)

Noelle Hossen

DATE:10 May 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 10 May 2019 at 4:00pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – strong family and economic ties in Australia  – value of course – course in Patisserie – desire employment in a high end hotel – no evidence of any prospective job offers in home country – 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 22 March 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 7 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 Clause 500.212 of Schedule 2 of the Migration Regulations 1994(the Regulations) because the delegate was not satisfied that the Applicant was a genuine student who intends to genuinely stay in Australia temporarily.

4. The applicant appeared before the Tribunal on the 25 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

6. The Applicant was employed as an electrician in his home country .He has spent a considerable amount of time in Australia studying English and is now seeking to undertake a course in Patisserie.

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

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 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 32 year old Malaysian man who first arrived in Australia on the 22/10/13 on a tourist visa. His first student visa was granted onshore on the 06/08/2014 to study English language courses.

13. Prior to arriving in Australia the Applicant worked as an electrician in Malaysia.

14. According to the Delegate’s decision record(a copy of the decision was provided to the Tribunal by the Applicant) the Applicant was enrolled and completed most of the following courses which he accepted:

    Intensive English 04/08/2014 to 17/10/2014

    Intensive English 17/11/2014 to 20/02/2015

    Certificate III in Spoken & Written English 20/04/2015 to 08/11/2015

    Certificate III in Spoken and Written English 09/11/2015 to 16/03/2016

    Certificate II in Spoken and Written English 17/03/2016 to 18/07/2016

    Certificate II in Written and Spoken English 19/07/2016 to 02/09/2016

    Certificate IV in Commercial Cookery 10/10/2016 to 06/01/2017

    Certificate IV in Spoken and Written English 31/10/2016 to 06/01/2017

    Diploma of Hospitality Management 23/04/2018 to 07/10/2018

15. The Applicant had not completed the Cookery Course or the Diploma in Hospitality Management at the time of the Delegate’s decision but he has since completed the Courses.

16. At the time that the Application for review was heard by the Tribunal the Applicant had been in Australia for over 5 years undertaking vocational Education courses only. He was proposing to undertake a course in Patisserie. The Tribunal considers that an Applicant who is a genuine temporary entrant will have circumstances which would 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. Given the amount of time that the
    Applicant has spent in Australia on student or bridging visas, the Tribunal is concerned that a further student visa may be used primarily to maintain residence in Australia.

17. The Applicant stated at the hearing that he did not have any assets in Australia or Malaysia. His mother, father and two brothers live in Australia. He was residing with his parents in Australia. His parents and his brothers had obtained permanent residency in Australia and he stated that his parents had lived in Australia for the last decade. He was using his father’s car in Australia to get to his job and studies. He plans to return to Malaysia when he has finished his studies and live with his aunt in Malaysia. His grandparents also live in Malaysia. He said that he has a lot of friends in Malaysia.

18. He presently works in his aunt’s and uncle’s restaurant in Australia. It was established at the hearing from the evidence that he gave that his immediate family resides in Australia. The Tribunal places a lot of weight on the fact that the applicant’s close family members are presently residing in Australia which does not give him an incentive to return to Malaysia. He is not married. Although he has some family who reside in Malaysia, his personal ties in Malaysia are outweighed by his personal ties to Australia.

19. The Tribunal has considered his circumstances in his home country of Malaysia .He does not have any personal or economic ties to Malaysia which does not serve as a significant incentive to return to live in Malaysia after he completes his studies in Australia. He has provided some evidence following the Tribunal hearing of an insurance policy and bank accounts that he holds in Malaysia but they are of nominal value and would not be an incentive for him to return to Malaysia.

20. When the Applicant lived in Malaysia he was working as an electrician. He said that he studied English for two and a half years as he was not proficient in English and needed more time to study. He stated that the reason that he took so long to complete his Course in English was because he had difficulty with the Education Provider. He was given until the 1 April to provide the proof that this affected his length of study due to the difficulties. He has since provided the proof of the difficulties with the Education Provider. The Tribunal is prepared to weight that evidence in the applicant’s favour. When he was asked why he could not undertake the courses that he was proposing to undertake in Malaysia, he stated that he wanted to do it in an English environment so that he could go back to Malaysia and work in a high end hotel. The Tribunal has taken this evidence into account as it is relevant to the value of the course to the Applicant’s future.

21. The Tribunal considered that the applicant has had ample opportunity to improve his English language skills during the extended time that he has been residing in Australia. The reason provided by the applicant as to why he wanted to study in Australia as opposed to Malaysia, as being that he wanted to study in an English environment is not a sufficient reason. He has provided no evidence to the Tribunal that satisfies the Tribunal that he has considered studying the Course in Malaysia.

22. The Tribunal does not accept that by studying a course in Patisserie in Australia the applicant would benefit and that the Course is relevant and necessary for him to obtain employment in Malaysia in a high end restaurant as the applicant did not provide any evidence to the Tribunal that would satisfy the tribunal that this was the case.

23. There is some evidence that he was working in his relative’s restaurant in Australia but no evidence was provided as to the sort of employment that he could obtain in Malaysia. He did not provide any evidence to the Tribunal of any prospective job offers in his home country.

24. The delegate’s decision sets out the details of his PRISMS record which indicated that he had studied Intensive English and Certificate II, III and IV in Spoken and written English from the 04/082014 to 06/01/2017, a period of two and a half years. He was now applying to do a Certificate IV in Commercial Cookery and a Diploma in Hospitality. He had completed the Certificate IV in Commercial Cookery and the Diploma in Hospitality Management at the time that the hearing took place and was now proposing to undertake a course in Patisserie.

25. The Tribunal finds that the Applicant is now simply proposing a further short inexpensive course with the primary objective of maintaining ongoing residence in Australia. The Tribunal places a lot of weight on the fact that the Applicant has economic ties in Australia. He is working for a family business and lives with his parents. There is very little incentive for him to return to Malaysia.

26. The Applicant initially arrived in Australia on the 22/10/2013 on a UD601 tourist visa which was granted offshore on the 11/10/2013. His first student visa was granted onshore on the 06/08/2014 to study language courses.

27. In the delegate’s decision which was provided to the Tribunal by the Applicant reference is made to the fact that the Applicant had complied with visa conditions as a whole. He had an Application for a BT802 Residence Application refused on the 15/01/2015.It was stated as follows in the Delegate’s decision: “In this application you claimed that you were incapacitated to work due to the total or partial loss of your bodily and mental functions, you also provided documents and medical reports regarding your condition and claimed that you were reliant on your sponsoring parent for financial support as you were not able to work because due to the disability, while this is not forming the basis of this decision, it does call into question the genuineness of your claims,”

28. The Applicant was asked at the hearing for details of his medical condition and whether he had recovered as he was able to study and work. He stated that he had recovered sufficiently in the past year to enable him to continue to study and work for his relatives in the restaurant. The condition was brought about whilst he worked as an electrician in Malaysia as he inhaled fumes and it affected his breath.

29. The Tribunal places weight not in the Applicant’s favour to the fact that at the time that the Applicant applied for a BT802 Residence Visa in 2015 his intent was to reside in Australia permanently. The Tribunal is not satisfied that his intention has changed and that the completion of a number of courses is primarily to maintain ongoing residence in Australia.

30. The Tribunal has not been provided with information regarding the following factors indicated by Direction 69: any potential military service in Malaysia, economic and remuneration the applicant could expect to receive in Malaysia or a third country compared to Australia.

31. The applicant has complied with previous conditions of visas as set out in the Delegate’s decision as there is no evidence before the Tribunal that he has not complied since the Decision was made.

32. 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.

33. 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

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

    Rachel Westaway
    Senior Member

    
    

    Noelle Hossen
    Member

    
    

    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:

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

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

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

    f.whether 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

    g.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;

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

    ii.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

    iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country

    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.