Jenny (Migration)

[2019] AATA 4039

Jenny (Migration) [2019] AATA 4039 (19 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jenny

CASE NUMBER:  1811430

HOME AFFAIRS REFERENCE(S):           BCC2018/656330

MEMBER:Peter Booth

DATE:19 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 19 September 2019 at 12:08pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – length of stay in Australia – value of course – vague future plans – economic disparity – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 Home Affairs on 20 April 2018 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 8 February 2018. 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 applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 26 August 2019 to give evidence and present arguments.

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 temporary entrant.

   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, which is attached to this decision, 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. The applicant gave evidence, the substance of which was as follows.

11. The applicant had read and understood the decision of the delegate refusing her application for a student visa.  Further, the applicant understood that the issue for determination was whether the applicant was a genuine temporary entrant.

12. The applicant gave evidence that she was currently studying a marketing and communication course at Dalton College.  The course apparently will finish on 1 September 2019.  In answer to an enquiry from the Tribunal, she said that thereafter she intended to wait for “two weeks for the certificate”, and then she would leave Australia.  Again, in answer to a question from the Tribunal, she said that she had no “ticket home” and that she needed to make sure it, the certificate, arrived.  The Tribunal enquired whether she was living in rental accommodation, and whether she had given notice to the landlord.  She said that it was a “friend’s house” with no written lease, and said she could leave whenever she wanted.  Again, in answer to a further question from the Tribunal, she said that that she had “given notice” with an estimate of leaving on 5 October 2019.  

13. The Tribunal enquired why she needed to stay in Australia for an extended period after the completion of her course.  The applicant said that she had one subject which had been “delayed”.  The Tribunal enquired what she meant by that and she said that the last subject had been an assignment, and that she was “a bit behind”.  However, she had a one week extension to submit the assignment.  She added that she could not submit the assignment until the end of the first week in September. The Tribunal also enquired whether she owned a car; she said that she did not.

14. The applicant said that she arrived in Australia on 4 October 2009 pursuant to a Subclass 573 (Student) visa, valid until September 2012.  She obtained an extension of that visa which was valid until August 2013.  Thereafter, the applicant obtained a Subclass 485 (Graduate) visa valid until September 2015.  She said that during the time of the graduate visa she had tried to get a job, but could not do so.  Thereafter, she said that she had another Subclass 572 (Student) valid until December 2017.  She also had a Subclass 600 (Tourist) visa, valid until the February 2014.  It was not clear from the evidence when the tourist visa was applied for.  The Tribunal enquired why she applied for a tourist visa after she had been in Australia for approximately four years. She said that after she graduated from Deakin University, her aunt had passed away so she wanted to stay in Australia to assist her uncle through the “grief process”.  She said that she was then intending to return home, but after a few months she became aware that she could apply for a graduate visa. She applied for a graduate visa in about January 2014, shortly before her tourist visa was about to expire. She gave evidence that she obtain a graduate visa which was valid from 31 March 2014 to 30 September 2015. She volunteered that she got a job in a supermarket as a clerk during that time.

15. Prior to the graduate visa, the applicant had applied for another student visa.  She said she did this at the end of September 2015.   The applicant obtained the student visa, which she gave evidence, was valid until November 2017.  She also gave evidence that she returned to Indonesia to attend her brother’s wedding, in December 2017 and stayed there for 60 days.  She said that she then applied for a student visa but that this was rejected.   The applicant gave evidence that she did not receive notification of this rejection.  However, in the event she applied for a tourist visa in January 2018.  In answer to an enquiry from the Tribunal as to why this material had not been provided to the Tribunal, she said that she did not have the information.  In the event, she asserted that the application was granted and accordingly, she arrived in Australia on 2 February 2018 pursuant to the tourist visa.  

16. The Tribunal observed that the applicant applied for the student visa on 8 February 2018, and enquired why she had decided to do so, having returned to Australia on tourist visa.  She informed the Tribunal that she “wanted an Australian degree”.  The Tribunal enquired whether she was enrolled in a registered course of study at that time. She said that she was enrolled in a Diploma of Marketing and Communication at Dalton College.  The Tribunal enquired when she had enrolled in the course. She said that she enrolled soon as she arrived in Australia, but then proceeded to state that she enrolled prior to that, and that after a few phone calls, she signed some documents.  When pressed to clarify this by the Tribunal, she said that she had enrolled in the course at the end of 2017, and that she had retained an agent to do so.  

17. The Tribunal enquired whether it was her intention when she returned to Australia to be a tourist, or to be a student.  She said that it was her intention to “pack up and go home”.   The Tribunal enquired whether she had a return ticket to Indonesia at that time.  She said that she did not have one.  The Tribunal enquired how long she intended to stay.  The applicant said that she intended to stay “for two or three weeks” and that her then visa was due to expire in March 2018.  She added that she had been to see her uncle when she returned to Australia.  Indeed she said that she had seen him the following day after arriving in Australia, and that “he convinced me to stay”. The Diploma of Marketing and Communication was, apparently, due to start in February 2018. The Tribunal observed that the information which the applicant had previously given to the Tribunal suggested that the course was to start in September 2018. She confirmed that the course started on 3 September 2018.  The Tribunal enquired what the applicant had done between February 2018 and September 2018.  She informed the Tribunal that she had had enrolled in a Certificate IV course in Marketing and Communication and that she had commenced it in February 2018. The Tribunal observed that there was no material provided by the applicant to confirm that point.  She said that she started the course on 5 February 2018 and finished it. The Tribunal observed that it was unconvincing for a temporary entrant, on a tourist visa, to commit to a course of study within two days of arriving that would require the applicant to stay in Australia for a period of about 18 months.  The application did not provide any substantive response.

18. The applicant said it was her intention once she completed the Diploma of Marketing and Communication to “start a café”.  She added that she would “tutor in English” her while doing so.  She said that the café would serve “Western” and “Asian” style food, and that she would handle the coffee machine and other management duties.  She said that she intended to open the café near commercial offices, and that it would be open between the hours of 6.00 am and 5.00 pm.  

19. The applicant’s immediate family in her home country comprise her mother, three brothers and two sisters. She added that she has an uncle who lives in Australia. The applicant owns no assets in her home country, but her family home is estimated by her to have a value of approximately AU$80,000.

20. The applicant had provided a statement in support of her application dated 14 August 2019 which the Tribunal informed from her, had been read and would be taken into account.  In response to an invitation from the Tribunal to provide any further information, she said that for the past 10 years she had not breached any laws of Australia.

21. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with clause 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether she has satisfied the genuine temporary entrant criterion.

22. The Tribunal has considered the applicant’s circumstances in her home country.  The applicant is from Indonesia.  The applicant has provided evidence of social, direct family and financial ties to her home country or other economic incentives to return. When considering the applicant’s circumstances in her home country, the Tribunal therefore finds that she has been able to demonstrate ties to act as an incentive to return to her home country at the completion of the proposed study.   However, whilst the Tribunal accepts that the applicant may have family ties to Indonesia, given the time the applicant has spent in Australia and the intended period of future to stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Indonesia.

23. The Tribunal has considered the applicant’s potential circumstances in Australia.  The applicant first arrived in Australia in October 2009 as a holder of Subclass 573 visa valid until August 2013.  The proposed study would extend the applicant’s stay until at least 1 September 2019.  The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia.  Whilst the Tribunal accepts that plans can change, this is not the conduct of a genuine student.  Rather, it suggests the applicant has decided to extend her stay in Australia by utilising the Student Visa Programme.

24. The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country.  The Tribunal has considered the applicant’s study history since arrival.  She commenced study in a variety of courses but relevantly returned to Australia on a tourist visa.  She either enrolled in a course before returning or did so within days of arriving.  It was a course of 18 months duration.  This is not the conduct of a genuine temporary entrant.  Her reason for doing so, namely her uncle’s encouragement upon her to do so, is most unconvincing.

25. The Tribunal notes that this course plan is inconsistent with the applicant’s plans when she initially entered Australia.  The course is asserted to have relevance to vague future plans. 

26. The applicant provided a statement in which she attempts to address the genuine temporary entry criterion.  The applicant claims that she will gain value from the course.  The Tribunal is unconvinced by this.  The Tribunal is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to her future beyond the qualifications she already holds.

27. The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in the applicant’s home country relative to the applicant’s potential circumstances in Australia.  Given the disparity in economic circumstances between Indonesia and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to Indonesia.   

28. The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study.  The applicant has not demonstrated any clear and substantial improvements arising from the applicant’s proposed study but will outlay the significant time and monetary commitment this course will require.  Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of the applicant’s proposed course to the applicant’s future.

29. The Tribunal places significant weight on the evidence that the applicant arrived in Australia, on 4 October 2009.  This indicates that the applicant does not appear to have strong personal ties to Indonesia.  Based on this evidence, the Tribunal assesses the applicant’s incentive to return to Indonesia to be minimal.

30. The Tribunal has given regard as to whether there is any other relevant matter.  The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.

31. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for a further stay as full-time student.  Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable the applicant to achieve that goal.  Indeed, the applicant was granted several visas which would have facilitated the applicant’s study in the applicant’s desired field.  It therefore appears to the Tribunal, that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study. 

32. The Tribunal has also given regard as to whether there is any other relevant matter, and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily.  The Tribunal has considered all information provided by the applicant in support of the applicant’s application.  On balance the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in the applicant’s home country, potential circumstances in Australia, the value of the proposed course to the applicant’s future, the applicant’s immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

33. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa rather than a view to a genuine interest in study and overall academic progress.  The applicant appears to be using the Student Visa Programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.

34. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: economic circumstances of the applicant; any potential military service in Indonesia; political or civil unrest circumstances in Indonesia; remuneration the applicant could expect to receive in Indonesia or a third country compared with Australia; circumstances in Indonesia relative to Australia or any other country; and the applicant’s circumstances in Indonesia relative to others in that country.

35. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.  Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.

36. The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.

37. 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).

1. 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.

2. 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

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

   Peter Booth
   Member