Jin Keong (Migration)

[2017] AATA 3113

Jin Keong (Migration) [2017] AATA 3113 (13 June 2017)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kon Jin Keong

CASE NUMBER:  1608487

DIBP REFERENCE(S):  BCC2016/880993

MEMBER:Wendy Banfield

DATE:13 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 13 June 2017 at 7:03pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether the applicant is a genuine applicant for entry and stay as a student – Lack of academic progress – Various unrelated courses undertaken – Significant time spent in Australia – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 572.223

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 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 to the Department of Immigration for the visa on 3 March 2016. The delegate decided to refuse to grant the visa on 26 May 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because it was determined the applicant is not a genuine applicant for entry and stay as a student. The decision was based on a lack of academic progression beyond the vocational education sector, enrolment in a range of unrelated courses, lack of evidence of prospects in Malaysia and the applicant’s immigration history since 2008.

4. The applicant appeared before the Tribunal on 5 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   Background

5. The applicant is a citizen of Malaysia and is currently aged 34. He came to Australian in 2008 with the intention of studying to be a pilot. He has parents and siblings in his home country and declares an intention to return to Malaysia and work in his father's petroleum business.

   The hearing

6. The applicant was initially enrolled in a Transport and Distribution Certificate Course but claims that after the first year of study, the college closed. He said the cost of enrolling at a different institution was more expensive. Therefore, he decided to enrol in Business courses instead. The applicant has since completed certificate and diploma courses in Business as well as IT and Project Management. He declared an intention to undertake a Bachelor degree in Business which he said could be completed by 2019.

7. The applicant was asked why he had undertaken a range of different courses and why he had not progressed academically in any one area of study. He said his father had advised him what to study. After studying business, according the the applicant, he was offered the opportunity to study project management and his father then told him he should study accounting.

8. The applicant claimed he does not have family in Australia, his parents and siblings are in Malaysia and he intends to return to work in his father's petroleum business. He is currently employed as a barista and has worked for about five years. Regarding the Department's findings that he has spent little time back in Malaysia over the last 8 years, the applicant stated he has to go back because of his father's business. He declared he has no military commitments in his own country and no civil or political issues that would prevent him from returning. The applicant denied he was using the student visa program maintain residency in Australia and claimed he was a genuine student.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

11. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that 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)     …

12. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

13. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

14. As noted by the Department, during the applicant’s time in Australia, he has only returned to Malaysia

15. The applicant has claimed he originally wanted to become a pilot and came to Australia for study purposes. However, after starting an Aviation Transport and Distribution course and the college closing, the applicant instead completed a range of Business, IT and Project Management courses. He declared an intention to go on to a Bachelor degree but has been in Australia for 8 years already and has not made any academic progress beyond certificate and diploma level. The applicant stated in his written submission and provided evidence that he has been accepted for enrolment into a Bachelor of Accounting course which commences in January 2018 and ends in December 2020. The applicant claimed he could complete the course by 2019 due to course credits. However, he would have been in Australia for 11 years, with only two of those years spent undertaking a tertiary level course.

16. There is insufficent evidence as to the applicant's employment prospects in his home country, and no evidence that his current study is relevant to a particular career plan. The applicant provided evidence of Business Registration for Batu Kawa Trading Co. that markets and distributes LPG. This evidence appears to be in support of the applicant’s claims that his father operates such a company. The applicant did not demonstrate that his area of study is relevant to this industry, to the company or to a particular role he may undertake.

17. The applicant submitted payslips for his job as a barista that demonstrates he has a regular income in Australia. He stated he has worked for five years and evidently supports himself financially. The Tribunal finds this is an incentive for the applicant to remain in Australia. In addition, as noted by the Department, at the time of their decision the applicant has spent only 204 days away from Australia in 8 years and appears to have minimal incentive to return to Malaysia. The Tribunal considers that given the applicant's lack of academic progress, his study history, potential circumstances in Australia and immigration history, he is not a genuine applicant for entry and stay as a student who intends to stay temporarily

18. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

19. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Wendy Banfield
    Member