Halim (Migration)

[2018] AATA 4506

Halim (Migration) [2018] AATA 4506 (2 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hendra Setiawan Halim

CASE NUMBER:  1702187

HOME AFFAIRS REFERENCE(S):           BCC2016/3324672

MEMBER:Wendy Banfield

DATE:2 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 October 2018 at 8:25pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – desire to learn all business aspects – completed Bachelor qualifications – regressed to lower level courses – diminishing ties with home country – offer of employment – relevance of current employment – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
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 23 January 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 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 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 it was determine the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of Indonesia and is currently 40 years old. He came to Australia on 26 November 2005 as the holder of a Subclass 573 Student Visa. Since his arrival the applicant has completed courses in English, Accounting, Management, Tourism, IT, Web Development and Commercial Cookery. At the time of application he was studying a Certificate IV in Commercial Cookery and was approved to study a Diploma of Hospitality. The applicant has stated he plans to open his own restaurant business in Indonesia.

5. The applicant appeared before the Tribunal on 19 March 2018 to give evidence and present arguments. The applicant was assisted in relation to the review by their registered migration agent.

   Evidence of the visa applicant

6. The applicant provided documentation in support of the application for review prior to the hearing. This included a current COE, evidence of previous studies, evidence related to employment, an offer of employment in Indonesia, Indonesian documents relating to a company, identity documents and a written statement from his representatives.

7. During the hearing the applicant confirmed he came to Australia in 28 November 2005 to study. He also explained the courses he has completed to date including English, Accounting and Business, followed by Travel and Tourism then IT.  He said he had taken a range of courses because they will all be of benefit in future as he plans to open his own business. The applicant said he is not sure what type of business he will open but his brother has opened a restaurant and wants the applicant to take charge of a branch. He said he took courses in cookery for that reason and studied a Diploma of Hospitality so that he knows how to manage a restaurant.

8. The Tribunal asked the applicant why he would be offered a restaurant manager position when he has only recently studied in a relevant area. The applicant said he has marketing experience and can help to promote the restaurant. Since his brother is a shareholder, the applicant said he will be trusted. Prior to coming to Australia, the applicant had obtained a degree in Business and Marketing.

9. The applicant declared he has a brother in Australia who lives in Queensland. He said he has two brothers in Indonesia as well as nieces and nephews. His parents passed away a few years ago. Regarding work in Australia, the applicant said he has worked as filler at Coles from 2006 until the present. The applicant said his brother encouraged him to study in Australia. The last time he returned to Indonesia was said to be three years previously when the applicant’s father passed away.

10. The Tribunal put to the applicant that he had been a student in Australia for a long time at considerable expense. He said he wanted to learn as much as possible in Australia in short time which is why he has taken a range of different courses. He reiterated he needed to learn about all aspects of a business and it was beneficial to learn in a multi-cultural, English speaking country. The applicant explained he had enrolled in a Bachelor degree but did not complete them as he thought they would take too long.

11. The applicant was asked to comment on the Department’s conclusion that he was using the student visa program to maintain residency in Australia. He declared he is a genuine student who wants to learn as much as possible. The applicant said he wants to finish his course and return to Indonesia because everything is very expensive in Australia, especially Sydney. The applicant was asked about the time and expense as a student in Australia when the applicant wants to open his own business. He stated again that he needs to learn everything about business before he runs his own.

12. The applicant said he knows what kind of business he will open and it will be a restaurant. The Tribunal asked if he has ever worked in a restaurant and he said during a Certificate III course he did 900 hours in a café. According to the applicant he will get experience in his brother’s restaurant before opening his own. The applicant said he wants to complete his courses until April 2019.

    Evidence of the representative – Mr Lim

13. Mr Lim submitted it did not make sense for the applicant to maintain residency in Australia as a student because it is a financial struggle and he is looking forward to going back to Indonesia. It was claimed the applicant achieved good marks in his previous studies including high distinctions and ‘A’s’ in some subjects. Mr Lim said the applicant believes the skills he has acquired will assist him in future and he is only requesting one year to complete his courses. It was submitted the applicant would accept a no further visa condition being placed on the grant of a student visa.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 meets the criteria of a genuine applicant for entry and stay in Australia..

16. 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?

17. 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.

18. 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.

19. The applicant gave evidence about his circumstances in his home country. Prior to arriving in Australia the applicant declared he had completed a degree in Business and Marketing. He has two brothers and several nieces and nephews in Indonesia, his parents having passed away in recent years. The applicant has declared an intention to return to Indonesia after completing his current studies in 2019 to work as a manager in his brother’s restaurant, gain relevant experience and open his own business. In the representative’s written submission and in the applicant’s evidence at the hearing it was claimed the range of studies he has undertaken in Australia are relevant to any business, including a hospitality position. The Tribunal notes the applicant returned to Indonesia approximately eight times since his arrival in 2005. However, at the time of the hearing he had not left Australia since he visited his home country in January and February 2015 when, it was submitted, the applicant’s father died. It appears the applicant’s ongoing ties to Indonesia have diminished over time, particularly since his parents passed away. The Tribunal has considered the evidence and based on the amount of time the applicant has spent away from his own country, is not satisfied an offer of employment or the presence of two brothers and their children represent a strong incentive for him to return after studying in Australia.

20. The applicant came to Australia as the holder of a Subclass 573 Student Visa. He has one brother in Australia. The applicant has so far completed studies in English, Accounting, Management, Business, Tourism, IT, Web Development and Commercial Cookery. He is approved to study a further Diploma of Hospitality Management. As noted by the Department, by the time the applicant completes his planned courses in 2019, he will have been a student for approximately 14 years.  This is in addition to the qualifications he had obtained prior to coming to Australia. While the qualifications the applicant has obtained in Australia will no doubt be of some benefit to him, the applicant has not demonstrated satisfactorily the value of undertaking such a wide range of vocational courses. The applicant stated in his application for the visa which is the subject of this review that he chose to study Commercial Cookery for the following reasons:

    I would like to gain skills and knowledge for an individual to be competent as a qualified cook; I will also be equipped to work in various hospitality enterprises where food is prepared and served, including restaurants, hotels, clubs, pubs, cafes, cafeterias and coffee shops. I personally enjoy myself in cooking.

21. The Tribunal is not satisfied this stated goal is consistent with his claim that he will be employed as a manager for a branch of an existing restaurant, of which his brother is a shareholder. It is also not credible that one individual needs to invest such extensive time and cost to study formal courses in all possible aspects of a hospitality business. The Tribunal does not accept that as a restaurant manager or owner, the applicant would be personally responsible for the cooking, management, tourism, marketing, accounts, IT and web development of the business. While the Tribunal has taken into account the applicant’s claims of a job offer in Indonesia as evidenced by a letter dated 16 September 2016, the Tribunal does not accept a business would offer the position of restaurant manager at least two years in advance to an as yet unqualified candidate. For these reasons, the Tribunal is not satisfied the applicant is continuing to study for a genuine purpose.

22. The applicant gave evidence that he has worked at Coles as a shelf filler since 2006 which the Tribunal considers is an incentive for him to remain in Australia. He has little experience in the hospitality industry as he declared his only experience was a period of 900 hours as part of his Certificate III in Commercial Cookery. The applicant has not followed a natural progression in his studies but has taken courses up to Advanced Diploma and then regressed to Certificate III in a different field. Although the applicant enrolled in tertiary level studies those enrolments were cancelled.

23. The applicant’s immigration history suggests he does not maintain strong ties with his own country. He first came to Australia in 2005 and apart from short return visits to Indonesia up until 2015; he has resided here since that time. He is engaged in ongoing employment as a shelf filler with Coles, a role he has had since 2006. The applicant does not appear to have pursued employment experience relevant to his stated goals, or in line with his studies, except for a period in a café which was required as part of a Certificate III cooking course. Based on the evidence available, the Tribunal does not accept the applicant is a genuine student and places weight on the applicant’s circumstances that indicate the Student Visa program is being used primarily for maintaining residency in Australia.

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.

    Wendy Banfield
    Member