HOU (Migration)

HOU (Migration) [2018] AATA 421 (25 January 2018)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Willy HOU
CASE NUMBER:  1620748
DIBP REFERENCE(S):  BCC2016/3633174
MEMBER:Jennifer Cripps Watts
DATE OF DECISION:  25 January 2018
DATE CORRIGENDUM
SIGNED:21 February 2018
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

The date recorded on the front of the decision record has been amended to 25 January 2018 from 24 January 2018 to reflect the date the decision was made, as shown in the signature block.
Jennifer Cripps Watts
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Willy HOU
CASE NUMBER:  1620748
DIBP REFERENCE(S):  BCC2016/3633174
MEMBER:Jennifer Cripps Watts
DATE:25 January 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 25 January 2018 at 8:54am

CATCHWORDS
Migration – Student (Temporary)(Class TU) visa – Subclass 500(Student) – Not genuine temporary entrant – Number of courses in different disciplines – No reliable indication of completion of current course – May change direction again – What applicant is doing now does not positively outweigh past poor performance and enrolment record
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 550.211, 500.212, 500.212(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 November 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 1 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.
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 the applicant is a genuine temporary entrant.
The visa that is the subject of this review was refused on 18 November 2016. The applicant applied for review by this Tribunal on 6 December 2016, within time, and provided the Tribunal with a copy of the Department’s decision to refuse his student visa. The applicant’s matter was constituted to this member on 22 November 2017 and a written invitation to attend a hearing was sent to the applicant on 11 December 2017, attaching a copy of an extract from the Migration Act 1958, Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications, for his ease of reference.
The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before his hearing, specifically addressing the issue of whether he “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.” The applicant was informed he should provide a copy of his current Certificate of Enrolment (COE). The applicant responded to the invitation, indicating he would attend the hearing, and provided the Tribunal with documentary information in support of his application prior to the hearing, including a statement and three COE’s for study from 2017 to 2019.
The applicant was assisted in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 temporary entrant: cl.500.212.
Enrolment (cl.500.211)
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
The visa was refused by the delegate because the applicant was not considered to be a genuine temporary entrant. The applicant provided the Tribunal with evidence in support of his application to show that he satisfies cl.500.211. The Tribunal gives weight to him being enrolled in courses of study. He satisfies cl.500.211.
The applicant provided the following COE’s:
a.09/01/2017 to 16/06/2017 – Certificate III Accounts Administration
b.10/07/2017 to 15/12/2017 – Certificate IV Accounting
c.08/01/2018 to 14/12/2018 – Diploma of Accounting
d.07/01/2019 to 13/12/2019 – Advanced Diploma of Accounting
Genuine applicant for entry and stay as a student (cl.500.212)
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?
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.
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. The Tribunal has considered all relevant matters individually and cumulatively in reaching its decision.
Background
The applicant is a 34 year old Indonesian citizen. He first arrived in Australia on 12 August 2011 holding a subclass TU-573 student visa granted offshore that was valid to 6 May 2014. He was granted a subclass TU-572 visa on 6 May 2014 valid to 16 November 2016. His next student visa application was refused and is the subject of this review.
The applicant told the Tribunal he works at Purta café in Surry Hills, he said at the hearing that his hours vary depending on when he is needed and that he is paid $22 an hour. He said his father and a step-brother providing him with some financial support.
In his visa application, the applicant declares he has never been married and that his father and seven siblings live in Indonesia.
The main issue in this case is that from 2011, when the applicant arrived in Australia as a student, up until the time he applied for the student visa which was refused in 2016 and is the subject of this merits review, he had enrolled in a number of courses in different disciplines, including Hospitality, Business, Marketing and Information Digital Media and Technology. Then, in 2016, after five years of study, he changed to accounting. At the time of application, he was about to start studying accounting and needed another three years to finish the accounting courses he is enrolled in, which would take his time onshore as a student up to nine years and achieving a highest qualification of an Advanced Diploma.
At the time of application, the applicant was proposing to study a package of courses including an IELTS Preparation, Certificate III in Accounts Administration, Certificate IV in Accounting and a Diploma of Accounting leading to an Advanced Diploma of Accounting, from 7 November 2016 to 13 December 2019. The Tribunal accepts, on the evidence, that he has completed his 2017 studies in the Certificate III and IV courses and remains enrolled for the Diploma.
Academics
The applicant has provided COE’s in courses of study from 16 June 2017 through to 13 December 2019, from Certificate III to Advanced Diploma level. He provided the following COE’s:
a.10/07/2017 to 15/12/2017      Certificate IV in Accounting
b.08/01/2018 to 14/12/2017      Diploma of Accounting
c.07/01/2019 to 13/12/2019      Advanced Diploma of Accounting
He has, at the time of this decision, completed one year of the minimum three years of study it will require for him to be awarded an Advanced Diploma of Accounting in December 2019.
It was raised with the applicant, at the hearing, that it was of concern to the Tribunal that he had changed direction in his courses on several occasions since he first arrived in 2011 and was enrolled at ICL Business College. The applicant said that at ICL Business the teachers were not teaching anything and he did not like it there. He said sometimes the teachers did not show up. The applicant says he requested to be transferred to another college but was not allowed to and that the college did not offer him any choice. He said he decided, after a few months, that he was wasting his time and went to a new place, then after a while went to Mega and another college that subsequently closed down.
He said when he was studying business at Mega in 2016 (before enrolling in accounting), the course length was increased from six months to a year which meant he would need another year to finish business studies, so instead of doing that he decided to discontinue his part completed business diploma course and go straight into accounting because he did not want to be in Australia that long, wasting his time.
Whilst it is accepted the applicant is enrolled and has satisfactorily completed one year of his accounting studies, the applicant’s study history and performance from 2011 do not indicate to the Tribunal that he is reliably committed to seeing through the current accounting course to completion or that he may not change direction again.
Circumstances in Australia
The applicant provided a typed undated “Statement of Purpose” to the Department with his application. He provided a duplicate copy of the statement to the Tribunal. It has been considered when the Tribunal has had regard to other evidence that was provided.
From July 2011, when the applicant arrived in Australia, to 2016 (when he commenced studying accounting) the applicant commenced, discontinued, cancelled and varied a number of courses. He progressed and achieved little in terms of actual qualifications in his first five years onshore and has now completed two Certificate courses in accounting, after his visa was refused. The fact that he now claims to be on track and has achieved some academic success, whilst admirable, does not persuade the Tribunal that he is a student who considers his time in Australia to be as a genuine temporary entrant.
The applicant has spent a significant amount of time onshore since 2011 and very little time back in Indonesia, where his family lives and where he says he plans to take up a job offer in 2020. He gave oral evidence that he has been back twice from 2011 to the time of this decision. The applicant travelled back to Indonesia for one month in April 2013 and a little over a month in March 2015. He has not departed Australia since he returned on 4 April 2015, that is, for more than two years and nine months.
In the applicant’s personal statement he says one of the reasons why he was attracted to study in Australia was because he could “easily fly for 6 to 8 hours to reach home”. He was asked why he has travelled back so infrequently as it seemed from that statement that he was looking forward to easily flying home and, it is reasonable for the Tribunal to infer, more than twice in seven years. He says that it is because when he goes back to Indonesia he doesn’t want to leave but his parents make him go back to Australia. He also said that the holidays he gets from college aren’t long enough for him to go back more often and that because the holidays are in July the tickets are very expensive. The Tribunal gives credit to none of these claims. It is reasonable to think that if the applicant intended to travel home easily that he might have done so more often than he has.
It is of concern to the Tribunal that the applicant has, over a period of more than six and a half years, only returned to his home country twice, for around a month on each occasion. This does not, in the circumstances, satisfy the Tribunal that he has strong or significant ties to Indonesia and causes the Tribunal to question whether he genuinely intends to remain in Australia on a temporary basis.
The applicant told the Tribunal that his father, who runs a shop selling furniture, gives him about $5,000 for his studies every two or three months. He said the money is sent to the bank account of an uncle who lives in Australia and his uncle gives him the money. He said his stepbrother also helps him sometimes. No documentary evidence was provided about these money transfers or financial support. The Tribunal gives limited weight to the claim by the applicant that his father sends him $5,000 every two or three months, which would equate to more than $20,000 a year.
Circumstances in the applicant’s home country
The applicant provided a typed and signed Statement of Purpose in which he states that he is interested in learning accounting when he was studying his business course which included financial documents units. He provided the Tribunal with a copy of a job offer letter from Lily Sansisca, Director, Niaga Mobil, dated 3 October 2016. The essence of the letter is that the applicant is offered a position as an Accounting Supervisor, commencing full time employment on 4 February 2020 in Medan, Sumatera Utara in Indonesia.
At the time of application, the applicant provided a letter from Niaga Mobil, dated 3 October 2016, indicating that he had been offered employment with that company as an Accounting Supervisor in Sumatera Utara, Indonesia upon the condition that he completes the Advanced Diploma of Accounting at Macquarie Institute. The Tribunal does not think it plausible that a company in Indonesia would be offering a prospective employee - with a poor study history at that time, who was not even studying accounting - a job more than three years into the future, in a managerial position, with qualifications obtained from a specific college in Australia without further convincing explanation. There is no evidence on the file that the applicant has any experience as a supervisor. The Tribunal does not consider this letter of offer to be reliable. It is not given weight in favour of the applicant having significant ties or incentive to return to Indonesia when the advanced diploma accounting course is completed in December 2019.
The applicant was asked about the job offer at the hearing, specifically, why the employer would have offered him an accounting supervisor’s job when he has no accounting qualifications or experience working in accounts. He said the company is owned by his friend’s father and the company proposed him to undertake accounting studies when he was still studying business, he thinks in around 2016. The applicant was asked how many people work at the company and said he doesn’t know. He said that when he goes to Medan, he just hangs out with his friend but does not go to “the store” (the car dealership). He said the job was offered to him while he was at his friend’s home, by his friend’s father, who told him that if he studied well and is a qualified accountant he will be offered a job. The last time the applicant travelled offshore and was in Indonesia, on his evidence, was in 2015. At that time, he was not studying accounting – he was studying business - and he did not enrol in an accounting course for more than 18 months after he claims his friend’s father offered to employ him as an accountant.
The applicant did not persuade the Tribunal, in his responses, that he had seriously looked into the prospects at the company he claims to be intending to work at in 2020, or that he had much idea of what would be involved, or that he knew who he would be working with or how many other people work there. It is reasonable to think that someone intending to work as a supervisor in a firm may ask who or how many people he will be supervising.
The Tribunal does not consider it plausible that this is a genuine job offer, that is, that the applicant will be employed as in a position as a supervisor. In any event, there was no evidence provided that obtaining an Advanced Diploma in Accounting will mean that the applicant would or could become a qualified accountant upon completion of the advanced diploma. He said in his oral evidence that the friend’s father said he would be offered the job if he is a qualified accountant and there is no evidence before the Tribunal that the applicant is or intends to be a qualified accountant.
In addition, the applicant has changed courses before and it is not unreasonable think that it is possible he may do so again. From 2011 to 2016, at the time of application, the applicant was enrolled in nine courses and provided documentary evidence indicating he completed only two, a Certificate III in Business in September 2015 and a Certificate IV in Business in March 2016. He did not continue with the Diploma in Business because, he said, the length of the course was increased from six to 12 months. At the time of this decision, having completed Certificates III and IV in Accounting, he is about to start a Diploma in Accounting, which also indicates to the Tribunal a lack of academic progress when all his enrolments are considered together.
The applicant’s representative was invited to make oral submissions at the end of the hearing. He said that the applicant is now determined and that it is really important for him to complete his diploma and advanced diploma. He referred to past unsatisfactory study performance being caused by the education provider wasting time and not being flexible to allow the applicant to change his course. The submission was made that whilst weight should be given to the past unsatisfactory study performance, more weight should be given to what the applicant is doing now (at the time of this decision). The Tribunal has considered this and, on balance, is not satisfied that what the applicant is doing now, which is that he has completed a Certificate IV in accounting and is enrolled in a Diploma of Accounting, positively outweighs his past poor performance and enrolment record.

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).
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Jennifer Cripps Watts
Member

[2018] AATA 421

25 January 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction