Hasni (Migration)

[2018] AATA 5147

Hasni (Migration) [2018] AATA 5147 (16 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhd Hasif Hasni

CASE NUMBER:  1708383

HOME AFFAIRS REFERENCE(S):           BCC2017/258834

MEMBER:Warren Stooke AM

DATE:16 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 16 November 2018 at 10:06am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – applicant enrolled for courses on initial tourist visa – maintaining ongoing residence in Australia – value of the course to identified career path – no identified income – limited academic progress – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 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 28 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 19 January 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 delegate was not satisfied on balance that the information provided by the applicant regarding circumstances in the home country, potential circumstances in Australia, value of the proposed courses to the applicant’s future and the applicant’s immigration history were sufficient to demonstrate that the applicant is not a genuine temporary entrant.

4. On 8 June 2018, the applicant provided the Tribunal with consent to decide the application review without a hearing.

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 is a genuine applicant for entry and stay as a student.

7. The applicant is a 27 year old from Malaysia, who entered Australia on 2 November 2016 on a Visitor visa (Class UD Subclass 601), which was valid until 2 February 2017.

8. The applicant provided the Tribunal with information that he had completed a Certificate III in EAL in September 2017 and a Certificate IV in EAL in April 2018 and that he was undertaking a Certificate IV in Marketing and Communication, which was due for completion in September 2018.

9. Further, the applicant has provided no other information to confirm that he is enrolled in a course of study since the scheduled completion of the Certificate IV in Marketing and Communication in September 2018, however, a Student Enrolment Agreement with Angad Australian Institute of Technology Pty Ltd in August 2016 indicated an interest in undertaking a Diploma of Marketing and Communications, at a cost of $6,000, however, the applicant has not provided any confirmatory evidence of enrolment to the Tribunal.

10. In support of the application for a Student visa (Class 500), the applicant responded to an Invitation to Provide Information from the Tribunal on 29 May 2018 with the following statement, which was dated 8 June 2018:

    “I am writing this letter to provide information needed about my proposed courses of study and my entry and stay in Australia as a student. I hope this letter will make the person in charged understand my plan and help to approve my student visa.

    Primarily, my intention to request a student visa here is to learn business and marketing in Australia. The reason I choose Australia to pursue my study is because Australia have a world class academic recognition around the world, especially in Malaysia, my home country. Studied in Australia is a big help to apply for jobs, business and marketing skills was always the skills I want to learn.

    My reasons to study in Australia, my eldest brother study medical in Melbourne University and turn out to be the most precious experience in his life time. He explained to me how he benefited from studying abroad and mix around with people from various culture. This encourage me to step ahead and continue my study here in Melbourne.

    My eldest brother told me if I have the chance to study aboard, I should go or it. Furthermore, Australia is a first world country, I would like to experience a study life in this developed nation and cultural diversified. Personally, I believe this experience will guide me through my future.

    A little bit history about me, both my parents are divorced, my mother is a businesswomen, she sells health and beauty products in many countries and she is a frequent traveller, it makes it easier if she want to visit Melbourne. My father is an oil and gas engineer. They encourage me to further my study and get as many experience I am able to get. After they divorced, I live with my mother and she used to drag me along with business meeting and networking event. Since I am 7, business slowly gets into me and help me to define myself. That is how I see to value the skills of closing deals and making a network.

    Besides my mother, my father work with PETRONAS (biggest Malaysia Oil Company) and he always push me to further my study and he will provide for moral and financial support, he believes education is the most important part in life.

    Furthermore, deciding to study in Australia was not hard for me. Initially, I was looking forward to study in United Kingdom with my friend which I studied my diploma with him together. After careful consideration, my second brother and his wife is studying here in Melbourne, it is easy for me to decide to study in Melbourne. Having a sibling here will help me a lot in many ways. Having someone to take care and show around at first is helpful, I have to take this time to make full use of it because they are going back to Malaysia early next year.

    My experience living in Australia for one year was wonderful, I get to mix with the local city people and outer suburbs local. They are great people and like to share their life story even with outsider (me), the give me advice on life matters and business. They like to share how they went to Malaysia for holiday and mentioning every destinations they have been. I can feel the warmness in my heart, it helps me cure my home sickness.

    Moreover, Australia is a place to explore and it is a traveller heaven to tour around Victoria and other states. My experience travelling in Australia somehow helps me to understand people better and see the different world than I used to see before.

    My future plan after I finish my study, I want to go back to my home country and contribute back to my society, implementing what I have learnt in Australia. A lot of measure I can do back in Malaysia. Such as, learning the marketing here is bold and spot on. The business move here I very different, Melbourne is made up of multicultural society, the marketing skills need to cater the local resident and international traveller. This type of challenges will soon be face around the world, what is happening now around the world is globalization, there is no true boundaries in business world with convenient of traveling and worldwide internet business I believe, Australia is one of the hub of creativity and opportunity that new world have to offer. Following the flow and studying here will greatly benefit my future.

    In Addition, I have studied technology architecture in the past, I am able to see how I will incorporate the skills I have and the knowledge I will learn in business and marketing. At the beginning, I will work in a developer company as I can use my skills to understand and tackle the market, later I will have my own company and use all my business skills to run my own business. All this steps are essential in building my own business group. The future of design and architecture related very closely in marketing sector, I believe in the future, potential customers can experience the first hand of how designer want them to feel the exclusivity of the products. Through the technology of virtual reality and hologram, marketing and sales skills is the only gap we need to close to secure the business. Thus, I believe studying marketing and business the right move to do now.

    Besides on my normal career path, learning marketing and business will benefit me to help my mother in running her own business. Her business is already established and she only need a marketing team to do the promoting and expend further in other country. While I am studying here, I see a lot of potential market I can penetrate because of multiracial here in Melbourne and I can try to promote to their home country.

    Regarding my living expenses and financial here, my parents fully support my study here in Melbourne. I do have the option to work part time according to the Australian student visa law, I am looking forward to do part time job with well-known company and expend my knowledge in practical field. Hence, my study become my priority here in Melbourne and get experience as much as possible.

    In conclusion, I hope the information given will satisfy to approve my student visa. I understand the Australian government department of immigration and border protection is doing their job to keep this country safe from any harms, but according to my family record, my brothers had a great experience studying in Melbourne University and I have a solid plan after I finish my study here in Melbourne.

    Please let me know if you need supporting documents for this procedure.”

11. The applicant provided the Tribunal with information concerning living expenses that identified his total costs, excluding course fees at $15,072 p.a., which he advised in his statement to the Tribunal was been funded by his parents.

12. The applicant advised the Tribunal that he has parents and a brother and sister in Malaysia and that he has had contact with those family members between April 2016 and June 2018. In this regard, as noted in the statement provided to the Tribunal, the applicant has a sibling living in Australia.

13. Prior to entering Australia as a tourist, the applicant had completed in November 2013, a tertiary Diploma in Technology Architecture and had previous employment with IKEA, in retail.

14. In the absence of information from the applicant beyond the statement provided to the Tribunal on 8 June 2018, the Tribunal notes the following finding of the delegate in the refusal to grant the applicant’s visa:

    “When lodging the student visa application, all student visa applicants are required to provide a statement and include any supporting documentation in relation to the Genuine Temporary Entrant (GTE) criterion. With the application, you provided a statement addressing the GTE criteria.

    After considering all the information available, I am not satisfied that you intend a temporary stay in Australia and that you are using the student visa program as a means of maintaining ongoing residence.

    I have considered your circumstances in your home country. You are unmarried with no dependent children. Your initial intention was to enter Australia only as a tourist, as demonstrated by your Tourist Visa. However you arrived on 02/11/2016, and were issued a Confirmation of Enrolment by 17/01/2017. You entered Australia for the purposes of a holiday for a short period but decided to undertake five (5) courses for a period of 4 years, without making prior adequate arrangements. It would therefore appear that you had intended to apply for a student visa prior to arrival in Australia. Whilst you do have extended family outside Australia, I am not satisfied that you will be compelled to return to his home country at the completion of these courses.

    I have considered your potential circumstances in Australia. You initially stated upon entry into Australia that your reason for travel was a holiday. You then changed your plans within a short timeframe and proposed to undertake studies in Australia for 4 years, away from your family. You have not provided an acceptable explanation as to why you could not undertake further studies in in your home country if you were lacking skills to assist you in advancement. You have not explained why you have suddenly decided to leave your family behind to study in a foreign country. You have continued to reside in Australia beyond a short holiday and proceeded to enroll in courses of study just prior to your visa ceasing. It would therefore appear that you had made arrangements prior to your travel to Australia to apply for a student visa in order to maintain ongoing residence and to circumvent proper migration channels.

    I have considered the value of the courses to the applicant's future. You provided a statement indicating that you have a study history in Architecture, but that after starting a job at IKEA you became more interested in sales. You have stated you would like to work in Marketing but you have not provided any details or specific plans for this career, nor provided any details as to how these courses will assist you in achieving this goal. You have not provided a detailed or convincing testimony as to how the courses you have enrolled in would assist you in achieving your goal in comparison to a qualification which could be acquired domestically. Based on the available information I do not find compelling cause for you to have travelled to Australia at significant expense to pursue the proposed study when the career goals could be adequately served in Malaysia.

    I have taken into consideration your immigration history. I note that you have travelled to Australia previously, and have complied with conditions of your visas. You entered Australia with a subclass 601 visa for visitor purposes and almost immediately made plans to enroll in a course of study. I am not satisfied that a person travelling as a tourist, leaving parents in their country of usual residence, would make such a significant change from their initial intentions to visit for tourism. I believe the stated intent in this application would have included a greater level of planning and preparation before arriving in Australia. When taking this into consideration in conjunction with other aspects set out in this decision record, I am unable to be satisfied that you will comply with immigration laws in future or that you will return to your home country at the end of your proposed stay in Australia.

    I have given regard to 500.212(a) (Hi), which applies to applicants who are minors (i.e under 18 years of age). As you are over 18 years of age, this aspect is not relevant to my decision.

    I have given regard to whether there is any other relevant matter that is pertinent to the assessment of your genuine intention to temporarily stay in Australia and find that there are no other relevant matters.

    I have considered all of the information provided by you in support of this application.

    On balance, I am not satisfied that the information provided regarding your circumstances in your home country, potential circumstances in Australia, value of proposed courses to your future and your immigration history, are sufficient to demonstrate that you are a genuine temporary entrant.”

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

15. 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?

16. 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.

17. 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.

18. The Tribunal has considered the statement of the applicant, as to the reasons for studying in Australia and is not satisfied on balance that the applicant has a genuine desire to return to his home country at the completion of the current studies. Further, the applicant has settled into a lifestyle in Australia, where he is supported by his parents and sibling and as such, has no immediate desire to return to his home country to follow any identified career path. In this regard, the Tribunal concurs with the delegate’s decision that the applicant where it was identified that the applicant would like to work in Marketing but has not provided any details or specific plans for this career, nor provided any details as to how these courses will assist the applicant in achieving those goals. Additionally, the applicant has not provided a detailed or convincing testimony as to how the courses to be undertaken would assist in achieving his goals in comparison to a qualification which could be acquired domestically.

19. The applicant, in his statement included herein, has focused strongly on the travel and social experiences while living in Australia and has not provided complementary depth of consideration in the study experience.

20. Further, it is of genuine concern to the Tribunal, as to how the applicant is likely to sustain himself during any proposed period of residency, with annual costs for basic living expenses being identified by the applicant as $15,072, without any identified income and before the impost of course fees, which have been supported by loans from the institution of study. As such, the applicant’s financial exposure is a risk should he be allowed to remain in Australia.

21. 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?

1. 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.

2. 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).

3. Given that the applicant entered Australia on a Tourist (Class 601) visa and then sought to transition to a student visa without returning to his home country upon expiry of the Tourist visa, the Tribunal has no confidence that the applicant intends to comply with visa conditions. In this regard, the applicant states that the reason for remaining in Australia was to undertake courses to further his future career; however there is no evidence before the Tribunal that the applicant has continued studies beyond a Certificate III in EAL and Certificate IV in EAL. As such, the applicant has not provided the Tribunal with confirmatory evidence that he has undertaken and completed a Diploma in Marketing and Communication, which in any event would have concluded in September 2018.

4. The Tribunal is not satisfied that a entrant on a Tourist visa (Class 601) can arrive in Australia and then proceed to lay out a plan to remain for more than 4 years, without such plans being premeditated. As such, the Tribunal has not confidence that the applicant intends to leave Australia.

5. 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

6. On the basis of the forgoing, the Tribunal finds that the applicant appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and the applicant does not genuinely intend to stay in Australia temporarily. In this regard, the applicant on the basis of the current application would be seeking to extend his stay in Australia without linking study to any detailed career plan, which was allegedly the primary reason advanced for consideration of a Student (Class 500) visa. Further, the lack of evidence of progression academically, beyond EAL, is of considerable concern to the Tribunal and reinforces the view that the student visa programme is being used for purposes other than study.

7. The Tribunal, in relation to Direction 69 has not been provided with any new information, which would mitigate the findings of the delegate when all factors are considered and weighed appropriately on the basis of the material before the Tribunal. As such, the Tribunal concurs with the determination of the delegate.

8. On this basis, 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).

9. 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.

   DECISION

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

    Warren Stooke AM
    Member