Hateka (Migration)

[2018] AATA 3402

Hateka (Migration) [2018] AATA 3402 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sampson Kwasi Hateka

CASE NUMBER:  1707122

HOME AFFAIRS REFERENCE(S):           BCC2016/3799030

MEMBER:Stephen Witts

DATE:17 July 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 17 July 2018 at 10:39am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – Family pressure to study previous course – an Australian relationship – Original purpose for visit – Visit for conference – Previous visa allowed short term study – Courses not consistent with current level of education – Relevance of proposed course – 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 14 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 13 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 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 applicant appeared before the Tribunal on 27 June 2018 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 to stay in Australia temporarily.

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

8. 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?

9. 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.

10. 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.

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

    Background

12. According to the delegate’s decision record, supplied by the applicant, the applicant, a citizen of Ghana, arrived in Australia from South Africa on 25 August 2016, stating on his incoming passenger card that he planned to remain in Australia for three days. The applicant stated that he originally arrived to attend a conference. A business visitor visa was granted on that basis. The applicant subsequently applied for a student visa (Temporary) (Class TU) (subclass 500) on 11 November 2016. On 14 March 2017 the delegate refused the applicant’s application for a student visa.

13. According to the applicant, the applicant is currently enrolled to study an Advanced Diploma of Computer Systems Technology which began on 5 February 2018 and is due to complete on 14 December 2018. The applicant previously studied a Certificate IV in Computer Systems Technology which began on 6 February 2017 and was completed on the 15 December 2017.

    Circumstances in home country

14. The applicant stated that he originally came to Australia on a business visitor visa from South Africa where he had been living for five years on a work visa. He confirmed that he was a citizen of Ghana. The Tribunal does not have any evidence before it in regards to any breaches of migration laws in South Africa whilst on work visas.

15. According to the applicant he finished high school in Ghana and studied for a time in networking and IT before moving to South Africa and completing a bachelor degree. At the time that the applicant came to Australia he was studying an engineering degree part-time and working part-time as a mathematics teacher.

16. The applicant stated that he originally came to Australia for a conference that was relevant to his teaching activities, that is a conference on boys and education, and then decided to stay here and study.

17. The applicant stated that he decided to make this major change in his life during the conference because he “wasn’t interested in studying engineering anymore” and there were “strikes in South Africa at the University” and that it was family pressure in any case driving him to study engineering in the first place. No evidence was supplied to the Tribunal in regard to the difficulty or otherwise of study in South Africa at this time and the applicant did not provide any corroboration in regard to this claim. The applicant also did not provide any other testimony in regard to his engineering studies and alleged influence from the family. No evidence was provided to the Tribunal as to why the applicant could not have undertaken the studies that he is currently engaged in Australia back in his home country in Ghana or alternatively, in South Africa. The Tribunal is concerned by this testimony as this was the only evidence put forward for such a significant last-minute decision to make such a life changing course of action. The Tribunal finds that this indicates that the applicant is using the student visa system to maintain residence in Australia and does not intend to stay here temporarily.

18. The applicant stated that he has a mother, four brothers, three sisters, and uncles and aunts living back in his home country of Ghana and an uncle and nephews back in South Africa. The applicant stated that he remained in regular contact with his family via social media and did not have any problems maintaining close personal relationships from here in Australia. The applicant also stated that he no longer has a fiancé back in his home country. The Tribunal is concerned about the actual extent of the applicant’s personal ties to Ghana through his family and previous work history and that whether these would serve as a significant incentive to return to Ghana. The Tribunal finds that the circumstances indicate that the applicant does not genuinely intend to remain in Australia temporarily.

19. 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 or 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

20. The applicant stated that he has no family members in Australia but he does have a girlfriend, an Australian citizen who, he says, he met here. The Tribunal is concerned that the applicant’s ties with Australia, including his current relationship, does present as a strong incentive to remain in Australia. The Tribunal finds that this indicates that the applicant does not genuinely intend to remain in Australia temporarily.

21. The applicant stated that he had not been back to his home country of Ghana or to South Africa since his arrival here in August 2016. The Tribunal finds that this also indicates that the applicant does not genuinely intend to remain in Australia temporarily.

22. The applicant stated that he rents with friends in Glenroy, but he does not work here, and that his uncle is paying for his studies.

23. The applicant stated that he had originally intended to stay in Australia for several days to attend a conference and acknowledged that a business visitor visa was granted on that basis. The applicant also acknowledged that he changed his intentions and decided, after entering Australia, that he wanted to stay here as a student. The Tribunal is concerned by this evidence as the applicant also acknowledged that he applied for his student visa on 11 November 2016 only a short period of time before he would have had to depart Australia on his visitor visa. It was noted by the delegate in its decision record of 14 March 2017 that the applicant’s original business visitor visa was subject to condition 8201 which would have enabled the applicant to commence studying whilst holding this visa. Condition 8201 allows a visa holder to study for a maximum of three months in Australia. The delegate further noted that this would indicate that the applicant enrolled in study in order to secure a visa rather than due to genuine interest in actually studying. The Tribunal finds that this indicates that the applicant is using the student visa system to maintain ongoing residence in Australia and does not genuinely intend to stay in Australia temporarily.

24. The applicant’s representative, on behalf of the applicant, stated that the applicant could easily have applied for a student visa back in his home country and that this “lack of premeditation” is an indication that the applicant is a genuine temporary entrant. He also stated that study conditions back in Ghana are not good and were “different in terms of career advancement”. The Tribunal does not give great weight to this evidence as the applicant had already done some study in Ghana before his move to South Africa where he continued to study at a higher bachelor level. The Tribunal also finds that the argument regarding the applicant’s stated “lack of premeditation” in his visa applications is not credible.

25. The applicant’s representative, on behalf of the applicant, in a GTE statement in support of his application dated 16 January 2017 (delegates file folio 44-45) stated that the applicant arrived in Australia to attend a two-day conference based on the theme of boys and education. It was acknowledged in the statement that the applicant has been a teacher in South Africa for the past several years and that the applicant saw it as an opportunity to participate in this conference and then return home. It was also acknowledged in this statement that the applicant still at this time had intentions to pursue his teaching career, and that the applicant would return home. It was contended in this statement that on the second day of the conference the applicant interacted with one of the speakers who advised him that schooling in a country like Australia “comes with a lot of advantages” and that the applicant then decided that he would stay and study here. It was also acknowledged in this statement that the applicant was enrolled as a civil engineering student in the University of South Africa. The Tribunal does not find this explanation for the applicant’s sudden change of mind to be plausible under these circumstances as the applicant, in his own statement, allegedly had significant responsibilities and qualifications in terms of his engineering studies and his teaching duties which would have ensured his return home if he had not already decided to seek residency in Australia. The Tribunal finds that the applicant is using the student visa system to maintain residency here in Australia.

26. The applicant, in a personal statement written to the delegate (delegates file folio 17) stated that he wanted to study these courses as “after these courses I will be equipped well enough with skills and knowledge to build wireless networks, configure and troubleshoot network hardware and software and finally settle as a network consultant in South Africa.” The Tribunal is concerned by this evidence as it indicates that the applicant has clearly thought out his study priorities in information technology and wishes to start a new professional life and does not have an incentive to return to South Africa and resume his life there in teaching, and in his engineering studies. The Tribunal is concerned that the applicant is seeking to undertake courses that are not consistent with his current level of education and will not assist the applicant to obtain employment or improve employment prospects in his home country. The Tribunal is also concerned as to the relevance of the proposed course to the applicant’s past or proposed future employment either in his home country or in a third country. The Tribunal finds that it is more plausible that, in fact, the applicant wishes to begin a new career whilst residing in Australia and does not genuinely intend to stay in Australia temporarily.

27. Based on the above the Tribunal is concerned that the applicant’s significant life change to being a student here in Australia, and his lack of incentive to return back to his home country, and his potential circumstances here in Australia, demonstrates that the applicant wishes to maintain residency here in Australia.

28. 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

29. 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.

30. 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

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

    Stephen Witts
    Member