KENNY (Migration)

[2019] AATA 2061

KENNY (Migration) [2019] AATA 2061 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MICHAEL KENNY

CASE NUMBER:  1707370

HOME AFFAIRS REFERENCE(S):           BCC2016/3313024

MEMBER:Wendy Banfield

DATE:25 February 2019

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 February 2019 at 10:53pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – immigration history – length of time onshore – limited travel home – value of course – relevance to stated plans – lack of clear plans for future in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 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 27 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 6 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. The decision was based on the applicant not having progressed in his studies beyond the vocational level and having undertaken a range of Certificate and Diploma courses. The immigration delegate considered the applicant undertaking further studies in Australia was unlikely to be of any further benefit to his career prospects. In addition it was noted that since arriving in Australia in 2011, the applicant has spent a considerable amount of time on shore and has only left Australia for a total of 25 days. The delegate considered the applicant did not have a strong incentive to return to his home country.

   Background

4. The applicant is a citizen of Indonesia and is currently 32 years old. He came to Australia on 20 November 2011 to study English and Business courses. Since arriving in Australia the applicant has completed Certificate and Diploma courses in Business, Small Business, Management, Tourism, and Hospitality. As of the date of the hearing, the applicant has returned to his home country twice, for approximately 25 days in total. The applicant is currently enrolled in a Diploma of Hospitality Management.

5. Prior to the hearing the applicant submitted evidence of his previous studies including certificates and academic transcripts. The applicant also submitted evidence to the Department regarding his studies in Australia, his family in Indonesia, a deed for the sale and purchase of land in 2013 in the name of Mrs Marjani and a written statement in support of the genuine temporary entrant criteria.

6. The applicant appeared before the Tribunal on 6 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

   The hearing

7. The applicant confirmed he came to Australia in 2011 to study English and Business. He said his aim was to open a travel agency in Jakarta. Prior to arriving in Australia the applicant had studied law but decided not to continue in that field. Regarding his work history in Indonesia, the applicant said he had worked for his uncle in a factory. The applicant claimed that his studies in Australia to date are relevant to his plan to open a travel agency as they are all related to the service industry.

8. The applicant advised he does not have family in Australia. His parents and sister live in Indonesia. According to the applicant his mother has supported his studies. The Tribunal noted the applicant has not returned to his home country since 2014. The applicant agreed this was the case and said he had been concentrating on study. He said that in 2014 an aunt died and at the time, he had enough money to return to Indonesia for a visit.

9. The applicant addressed the Department’s reasons for refusing his visa and claimed the delegate’s reference to him having studied cookery is not correct. The Tribunal reviewed the evidence in this regard and is satisfied this was an error. According to the Provider Registration and Information Management System (PRISMS), the applicant has not been enrolled in a cookery course. In relation to his studies to date, the applicant denied he had undertaken low cost courses but did state it was too expensive to go on to a degree course.

10. The applicant’s circumstances in Australia are that he is currently studying Hospitality Management and works 20 hours per week as a cleaner. The applicant said he did not have work experience in the travel and tourism industry but had been in contact with people in the industry, including in Indonesia. According to the applicant, he plans to return to Indonesia after completing his current course in hospitality management. The applicant said opening a travel agency is an incentive to return to Indonesia and he would like to work in Bali for two years first.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 meets the criteria of a genuine applicant for entry and stay as a student.

13. 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?

14. 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.

15. 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.

16. The Tribunal considered the applicant’s circumstances in his home country and in Australia. According to the applicant’s evidence he has parents and a sister in Indonesia but no family in Australia. He had commenced studying law prior to coming to Australia but did not continue. The applicant has part-time work as a cleaner in Australia and had worked in his uncle’s factory in Indonesia. He does not have work experience in the travel industry but said he intends to work in Bali before opening a travel agency in Jakarta. The Tribunal places some weight on the applicant having ongoing ties to his home country due to his family but is not satisfied this is a strong incentive for him to return. The Tribunal is not satisfied the applicant has clear plans for his future in Indonesia and has not demonstrated he has the means or the relevant experience to start a travel business.

17. The applicant’s immigration history which includes his visa and travel history indicates the applicant has been in Australia since 2011 holding either a Student Visa or associated Bridging Visas. He has returned to his home country only twice since his arrival; once in 2012 and once in 2014/2015 for approximately two weeks on each occasion. The applicant has studied a range of courses that he says are related to his plans to open a travel agency; however, it appears the applicant has adapted his evidence regarding his studies to fit his stated plans. The Tribunal is not satisfied the applicant’s current studies in hospitality management are related to travel and tourism, or a travel business. The Tribunal has place weight on the applicant’s circumstances that indicate the Student Visa is intended primarily for maintaining residency in Australia. He has returned to his home country twice since his arrival; once in 2012 and once in 2014/2015 for approximately two weeks on each occasion. The applicant said he visited Indonesia in 2014 because an aunt had passed away.

18. The Tribunal has considered the applicant’s circumstances individually and cumulatively. There are some aspects of the applicant’s case that weigh somewhat in his favour such as the successful completion of Certificate and Diploma courses and his current enrolment in a course of study. However on balance, the Tribunal finds the majority of considerations weigh against the applicant, in particular the lack of relevance of the current course of study to previous courses, the lack of value of the current course to the applicant’s stated plans for the future and the applicant’s circumstances that suggest he is not studying for genuine pursposes.

19. 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).

20. 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.

21. 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

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

    Wendy Banfield
    Member