Hamuddin (Migration)

[2018] AATA 3111

Hamuddin (Migration) [2018] AATA 3111 (25 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Hafizi Hamuddin
Ms Jennie Yong

CASE NUMBER:  1707837

HOME AFFAIRS REFERENCE(S):           BCC2016/3408488

MEMBER:Stephen Witts

DATE:25 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 25 July 2018 at 1:38pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) –Genuine non-temporary entrant criterion – History of unrelated courses – Economic incentives to stay in Australia – Working with wife – Use of student visa program to maintain residency status – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 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 March 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 13 October 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 genuinely intends to stay in Australia temporarily.

4. The applicants appeared before the Tribunal on 23 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay 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 genuinely intends to stay in Australia temporarily.

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

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.

10. At the hearing the Tribunal had a discussion with the applicant regarding issues for consideration outlined in Ministerial Direction 69.

    Background

11. According to the Delegate’s Decision Record, supplied by the applicant, the applicant initially arrived in Australia from Malaysia holding a visitor (class UD subclass 601) visa on 10 June 2014. This visa was valid until 10 September 2014. On 4 September 2014 the applicant lodged an onshore application for a student (class TU subclass 572) visa granted on 7 October 2014 and valid until 31 October 2016. The applicant applied for a student (temporary) (class TU) student (subclass 500) visa on 13 October 2016. This application was rejected by the delegate on 23 March 2017.

12. According to the applicant he is currently enrolled to study a Diploma of Hospitality Management which began on 15 June 2018 and is due for completion on 14 December 2018.

13. According to the applicant, and to the applicant’s PRISMS record (reviewed with the applicant in accordance with s.359AA) the applicant has been enrolled in the following courses here in Australia: a Certificate IV in frontline Management finished in 2015, a Diploma of Management cancelled in 2015, a Certificate IV in Business cancelled in 2015 and then finished in 2016, an Advanced Diploma of Management cancelled in 2015, a Diploma of Management cancelled in 2016, a diploma of Leadership and Management cancelled in 2016, a Certificate III in Commercial Cookery finished in 2017, and a Certificate IV in Commercial Cookery finished in 2018.

    Circumstances in Australia

14. The applicant stated that he completed his Certificate of Education back in Malaysia and then at some point decided to come and visit Australia. He then stated that he decided to study in Australia because he felt the standard of education was higher than in his home country.

15. The applicant stated that he came here originally on a visitor visa but liked Melbourne very much and has a brother here and so decided to stay here and study. The Tribunal is concerned by this evidence as the applicant did not provide any other specific reasons as to why he originally came here as a visitor and then decided to stay here for some years as a student. The Tribunal finds that this is evidence that the applicant is using the student visa system to retain residence in Australia.

16. The applicant stated that he has parents and brother and other relatives back in his home country that he remains in regular contact with via phone. The applicant did not indicate that he had any problems maintaining his personal relationships from here in Australia and the Tribunal attaches no weight to this as evidence of an intention to return. The applicant also stated that he owns no property back in his home country.

17. There is no significant relevant evidence regarding the following factors indicated by ministerial direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, economic and 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.

    Circumstances and study in Australia and the value of the proposed course to the applicant’s future

18. The applicant stated that he has a brother here in Melbourne, also on a student visa, who has been studying English for the last seven months. He also has his wife here on a dependent visa. They live in rental accommodation together in Southbank. The Tribunal is concerned by this evidence as the applicant has significant ties with Australia that would present as a strong incentive to remain in Australia. The Tribunal finds that this indicates that the applicant is using the student visa system to maintain residence in Australia.

19. The applicant stated that he has been home three times since 2014 for periods of up to 2 weeks and has not travelled anywhere else outside Australia.

20. The applicant stated that he works in food delivery for up to 20 hours per week and earns up to $600 AUD per week. He also stated that his wife works as a waitress in a food court and earns up to $400 per week. The Tribunal is concerned by this evidence as the economic circumstances of the applicant present are a significant incentive for the applicant not to return to his home country. The Tribunal finds that this indicates that the applicant is using the student visa system to maintain residence in Australia.

21. Adopting the procedure of the Act 359AA, the Tribunal read out the following statement to the applicant:

22. I’d like to talk to you about your study history and to do that I’m going to put to you formally under the law, a piece of information that I have. The information that I will put to you is something I consider would be the reason, or part of the reason, for affirming the decision under review.

23. I have before me, Provider Registration and International Student Management System records, otherwise referred to as PRISMS. This PRISMS record from a database that is kept by the education providers and details all of your certificates of enrolments, the dates that you remained enrolled and the outcome of the courses.

24. This information is relevant to the review because it may lead me to form the view that it documents a history of unrelated courses. It lists many courses that weren’t started, or that were started and shortly thereafter cancelled.

25. The consequence of this information being relied on by me may be that I form the view that you do not meet the requisite criteria, more specifically that you are not a genuine student. This may mean that you are refused to visa which you have applied for.

26. You may comment on or otherwise respond to this information. You may wish to ask for additional time to comment on or respond to the information.

27. The applicant did not ask for an adjournment but spent a few minutes reviewing his PRISM record before the Tribunal began a discussion with him about his study history reflected in this record.

28. The Tribunal asked the applicant to explain his many enrolments here in Australia, the significant level of cancellations, and the major change he made to move from several business-related enrolments, most of which were cancelled, to his current study in commercial cookery. The applicant stated that he found his business and management study “too tough” and so decided to change to cookery. He also testified that the main reason he began studying business and management was that his migration agent told him that “business is easier than cookery”. The Tribunal is concerned by this evidence as the applicant remained in Australia on student visas from 2014 until almost the end of 2016 engaged in various business and management level courses and was unable to maintain a coherent and successful study pattern. The applicant then switched his enrolments to cookery and was unable to offer any coherent rationale to the Tribunal for his poor study history. In particular the applicant was unable to explain why after coming here on a visitor visa he decided to study business level courses for some years, mainly unsuccessfully, and then make a major change to cookery and hospitality management. The Tribunal finds that this indicates that the applicant is using the student visa system to maintain residence in Australia and does not genuinely intend to remain in Australia temporarily.

29. When asked by the Tribunal to outline what he would be learning in his current enrolment in a Diploma of Hospitality Management that he hadn’t already learnt through his previous cookery courses and his many courses in business, leadership, and management the applicant was not able to outline any of the course detail of his current enrolment and how that would assist him in his stated intention of returning to Malaysia and opening a restaurant. The applicant also informed the Tribunal that after this qualification he wants to enrol to study an Advanced Diploma of Hospitality Management. The Tribunal finds that this adds to the suggestion that the applicant is using the student visa system to maintain residence in Australia.

30. The applicant, in his statement to the delegate (delegate’s file folio 37) stated that he wants to become a successful entrepreneur and run his own business in the future. He stated that he “always enjoy making delicious food for people especially for my family and interested in entering the food industry”. The Tribunal is concerned by this evidence as the applicant has now been here for more than four years and, in fact, has only started studying cookery in 2016 after already having been enrolled in seven courses, most of which the applicant cancelled or was unable to complete. The applicant’s wife, on behalf of the applicant, stated in her statement to the delegate (delegate’s file folio 36) that she and her husband planned to open a restaurant back in their home country and submitted that they had a plan to develop a restaurant that provided Malaysia and Chinese food. The Tribunal is concerned by this evidence as again it shows that, in fact, the applicant has no specific plan to study for a specific objective as the applicant, as stated above, was here some years before he even started his cookery courses. The Tribunal is also concerned that no specific business plan was submitted to the Tribunal and that no other evidence was supplied other than that statement by the delegate’s wife regarding the kinds of food they might serve. The Tribunal finds that this indicates that the applicant is using the student visa system to maintain residence in Australia.

31. 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).

    Conclusion on cl.500.212

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.

34. In regard to the secondary applicant, the Tribunal finds that she is not a member of the family unit of a person who satisfies the primary criteria in accordance with cl.500.311.

    DECISION

35. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Stephen Witts
    Member