Koh jinn haur (Migration)

[2018] AATA 5403

Koh jinn haur (Migration) [2018] AATA 5403 (6 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Koh Jinn Haur

CASE NUMBER:  1708465

HOME AFFAIRS REFERENCE(S):           BCC2016/4260422

MEMBER:Stephen Conwell

DATE:6 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 06 November 2018 at 4:30pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – lack of academic progress – ceased studying for period of 10 months – value of courses to applicant's future – immigration history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

CASES
Hasran v MIAC [2010] FCAFC 40

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 6 April 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 16 December 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 the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily (GTE criterion).

4. Where used in this decision:

   a.   COE refers to Confirmation of Enrolment;

   b.   VET refers to Vocational Education and Training;

   c.   The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection);

   d.   Direction 69 or the Direction refer to Direction No.69, Assessing the genuine temporary entrant criterion for Student visa application;

   e.   GTE refers to the Genuine Temporary Entrant criterion for Student visa applications;

   f.      ‘359(2) questionnaire’ or ‘359(2) invitation’ refers to the Request for Student visa Information questionnaire issued by the Tribunal under s.359(2) of the Act.

5. On 31 May 2018 the applicant was invited under s.359(2) of the Act to provide information about his proposed course of study and his entry to stay in Australia as a student. The invitation was sent to the applicant at the last address provided in connection with the review, advising that, if the information was not provided in writing by 14 June 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant did not provide any information to the Tribunal in regard to this matter and did not respond to the invitation to provide information under s.359(2). In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

7. The Tribunal has decided to proceed to decision without taking further steps to obtain the information. Accordingly the Tribunal moves to determine the review application “on the papers”.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 intends genuinely to stay in Australia temporarily.

10. 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?

11. 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.

12. 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.

13. The Tribunal has reviewed the delegate’s decision of 6 April 2017 which was provided by the applicant with his application for merits review. This decision is not binding on the Tribunal; the Tribunal brings an independent view to the review application.

14. The delegate’s decision notes (in summary):

    ·      The applicant first arrived in Australia in August 2014 on a Student (TU 572) visa.

    ·      Examination of the Provider Registration and International Student Management System (PRISMS) indicated that the applicant has previously been enrolled in the following Course(s) -

    o   Certificate III in Business

    o   Certificate IV in Business

    o   Certificate III in Business Administration

    ·      According to his PRISMS the applicant only completed a Certificate III in Business and did not study between 5 October 2015 and 28 August 2016 a total of 10 months.

    ·      On 30 January 2017 the Department emailed the applicant, inviting him to comment on his circumstances in relation to the Genuine Temporary Entrant criterion and provide other documentation in relation to Overseas Student Health Cover and to undergo a medical examination. A time period of 28 days was given for response.

    · The applicant did not respond to the Department and the delegate proceeded to assess the applicant against the GTE criteria of cl.500.212.

    ·      The applicant’s movement records indicate he has not departed Australia since his initial arrival in 2014.

    ·      In this application the applicant included enrolment to undertake courses which are due to conclude in May 2019. This will bring the time he has spent in Australia on Student visa or associated bridging visa to more than 4 years. The delegate found this to suggest that his potential circumstances in Australia outweigh any incentive he may have to return to Malaysia.

    ·      The primary objective of a Student visa holder in Australia must be to study a registered course and progress academically. The applicant did not undertake any studies for 10 months between 5 October 2015 and 28 August 2016 (‘study gap’). He had the opportunity to seek a deferral from his education provider if he was experiencing personal problems and could not study, or he might have departed from Australia until he was fit and well enough to return to study.

    ·      There is no evidence that he sought a deferral from his education provider and Departmental records confirm that he remained onshore during the period of his study gap.  The delegate was not satisfied that he has provided an acceptable explanation for the period of the study gap of over 10 months.

    ·      The applicant has only completed enrolments in a Certificate III in Business and had his subsequent enrolments cancelled for non-payment of fees and for non-commencement of studies. The delegate did not consider this to be a reasonable completion level for a student whose primary purpose for being in Australia is to study and progress academically.

    ·      Whilst the applicant did not provide a response to the genuine temporary entrant criterion request he did include a statement with his application addressing the reason for studying his current course. The delegate considered the reasons the applicant submitted for studying in Australia, but found that his statement offered  general information suggesting that the current course in Leadership and Management will improve his management skills.

    ·      The delegate was not satisfied that his study plan in Australia will assist the applicant to obtain employment or improve his employment prospects in Malaysia.

    ·      The applicant has not completed any enrolments above the VET sector and has maintained enrolment in short/inexpensive courses at this vocational level; this indicates he is using the Student visa program to maintain residency in Australia rather than due to a genuine interest in study and academic progress.

    ·     The applicant’s failure to respond to the Department’s request for comment or to provide any further supporting documentation in support of his application is not the behaviour of a genuine student who wants to secure a Student visa to successfully continue his studies.

    ·    The delegate concluded that the applicant is using the Student visa application as a means to maintaining residence in Australia.

    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 Tribunal has reviewed the delegate’s decision.

18. The Tribunal has considered all the above information and has regard to the factors in Direction 69.

19. There is no evidence pertaining to the following factors indicated by Direction 69 that would prevent him from returning to his home country and the Tribunal makes no findings against the applicant based on:

    ·       any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;

    ·       circumstances in the home country relative to Australia or any other country;  or

    ·       the applicant’s circumstances in the home country relative to others in that country.

20. On the evidence before it, the Tribunal finds that the applicant is not a genuine student. Rather, he appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and he does not genuinely intend to stay in Australia temporarily.

21. Overall, given lack of evidence of academic progress, his study history, his immigration history and the lack of value of the courses to his future, the Tribunal find that the applicant is using the Student visa program to circumvent the intention of migration programs; the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that he genuinely intends to stay in Australia temporarily.

22. On the basis of the above, and having considered any 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.500.212(a).

    Conclusion on cl.500.212

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.

    Stephen Conwell
    Member