Julian (Migration)

[2018] AATA 5892

Julian (Migration) [2018] AATA 5892 (18 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Felix Julian

CASE NUMBER:  1701543

HOME AFFAIRS REFERENCE(S):           BCC2016/3599717

MEMBER:Wendy Banfield

DATE:18 September 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 18 September 2018 at 11:15am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – low level low cost course enrolments – vague plans to return to home country – maintaining ongoing residence in Australia – limited awareness of enrolments and subjects – land ownership in Indonesia – ongoing employment in Australia – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 499
Migration Regulations 1994, 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 10 January 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 28 October 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 it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of Indonesia and is currently 23 years old. He came to Australia on 2 October 2013 and since his arrival, the applicant has completed courses in English, Business, Business Administration and Management. At the time of the hearing he was enrolled and studying a Diploma of Hospitality Management. The applicant submitted evidence of his past studies at the hearing.

5. The applicant appeared before the Tribunal on 12 March 2018 to give evidence and present arguments.

6. At the hearing the applicant submitted documents related to his previous studies. These included General English Certificates, COEs, a Certificates and transcript for courses in Business Administration and Management and a Statement of Attainment for part of a course in Leadership and Management. The applicant had previously provided written statements and evidence of land ownership in Indonesia to the Department which the Tribunal has taken into account in making a decision in this case.

   The hearing

7. The applicant gave evidence that he first came to Australia in 2013 to study IT because it was a subject he liked at school. Prior to coming to Australia the applicant had completed high school. He came to Australia because the education is better than in his home country, and his parents agreed. The applicant said he began the IT course but as it was hard, he moved to a Business course. He said he is planning to open a café or restaurant in Indonesia. The applicant said he does not have family in Australia and his mother and sister live in his home country.

8. According to the applicant, he had discussed his future with his mother and sister and they are thinking about opening a restaurant or café. He said he has worked as a chef before but is currently working part time at a juice bar. The applicant declared he had been back to Indonesia in 2015 and plans to return in 2019 after finishing his hospitality course. The applicant said he decided to take Hospitality after Business because it will be useful in his home country. He added that he has continued to study after his visa was refused.

9. The applicant was asked about having been in Australia as a student since 2013. He referred to his study history and completion of courses to date. Regarding the Department’s view that he had enrolled in low level low cost courses, he said he asked his mother about going on to a higher level and decided that after his current course he may apply to a university but it is more likely he will return to his home country. The applicant said his incentive to return to Indonesia was his family and he intends to return after his studies.

10. The applicant claimed that in 2017 he took an English Course, then a Certificate III and is currently enrolled in a Diploma of Hospitality Management. The applicant was asked to state the subjects he is taking and how often he attends college. The applicant declared he goes to class three times a week and said he studies management, then said there were two or three subjects. When asked what they are, he said he would have to find out as he is on holiday at present and had just taken exams. The applicant was asked again what subjects he studied and had taken exams in. The interpreter assisted in putting the questions about study units to the applicant even though he had otherwise not required translation. The applicant appeared not to understand and asked what subjects the Tribunal meant. The Tribunal referred to his hospitality course having separate subjects, and by way of example, pointed to those listed in his Business course transcript provided in evidence. The applicant looked through some documents and referred again to having taken exams but could only state that he studied ‘management’.  The Tribunal read out the start and end date of the Diploma of Hospitality course and the applicant agreed he had begun the course in September 2017. The Tribunal asked the applicant again, what units or subjects he has studied in his hospitality course, meaning the names of the classes he has taken. The applicant replied ‘Diploma of Leadership’. The applicant was asked when he last went to class and he said three weeks ago. Again he was asked what individual classes he attended and he replied ‘Diploma of Hospitality Management’. The Tribunal once again pointed the applicant to a transcript from a previous course he did that listed subjects and explained he was being asked about the subjects he is taking in his current course. After a long delay the applicant said he forgot.

11. According to the applicant the Department refused his visa because he did not provide all of the documentation required. He said even though his visa was rejected, he still attended the school and had attended the Tribunal hearing as well.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. 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?

15. 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.

16. 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.

17. The applicant gave evidence about the circumstances in his home country. He declared his mother and sister continue to live in Indonesia and said he had discussed with them plans to set up a café or restaurant after he finishes studying. The applicant provided evidence of land ownership in Indonesia to the Department and the Tribunal accepts he has some ongoing personal connections with his home country but is not satisfied this is a strong incentive for him to return. As of the date of the hearing, the applicant has only returned to Indonesia once since his arrival in Australia in February 2013; from 4 February 2015 to 8 March 2015, a period of just over one month. Given the amount of time the applicant has spent in Australia and away from Indonesia, any ongoing connection to his own country would have diminished.

18. In Australia the applicant was initially enrolled to study English and Programming; however he changed course and studied Business instead. Later it appears the applicant enrolled in a Diploma of Software Development but did not complete the course and changed to Business Administration. The applicant provided certificates of completion for a 10 week English course, a Certificate IV in Business Administration, a Diploma of Management and four units of an Advanced Diploma of Leadership and Management. There is no evidence the applicant completed the Advanced Diploma in Leadership and Management or the Certificate III in Hospitality the applicant was enrolled in from February to August 2017. Although the applicant claimed he planned to open a café or restaurant in his home country, the Tribunal is not satisfied he has demonstrated a clear study progression as would be expected of a genuine student.

19. The applicant said in his statements to the Department that he had been working in the fast food industry in Australia and advised the Tribunal he had previously worked as a chef and was employed in a juice bar at the time of the hearing. The Tribunal considers the applicant’s ongoing employment would act as an incentive for him to remain in Australia rather than return to Indonesia. In addition, the Tribunal found the applicant’s plans to open a café or restaurant in his home country to be vague and without detail. It is not clear whether he has the means or the ability to do so and the Tribunal is not satisfied on the evidence provided that the applicant genuinely intends to put this business proposal into practice.

20. The applicant’s immigration history in Australia indicates he arrived in February 2013 and he has held either a student visa or a bridging visa since then. When it was put to the applicant that he has not progressed academically in that time, he said he may still consider going on to higher education after completing his Hospitality course. The Tribunal finds this demonstrates the applicant does not have a strong commitment to returning to Indonesia in the near future.

21. Regarding the value of the course, the Tribunal accepts a Diploma of Hospitality may be of some overall benefit to the applicant in future, but is not satisfied the applicant has enrolled for genuine purposes. The applicant was asked numerous times during the hearing about the content of his Hospitality course, in particular the subjects or units that he was required to take but he was unable to name them and appeared unable to discuss the course even in general terms. Despite being given ample opportunity to provide information to the Tribunal about his current studies, the applicant’s answers to questions were vague and evasive. For this reasons, the Tribunal did not find the applicant to be credible regarding his reasons for seeking to continue studying in Australia.

22. 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).

23. 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.

24. 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

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

    Wendy Banfield
    Member