KWAN (Migration)

[2018] AATA 5102

KWAN (Migration) [2018] AATA 5102 (4 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr POK MENG KWAN

CASE NUMBER:  1711079

HOME AFFAIRS REFERENCE(S):           BCC2017/771571

MEMBER:Mara Moustafine

DATE:4 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 04 September 2018 at 3:53pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa –genuine temporary entrant criterion – poor study history and lack of academic progress – immigration and study history – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 9 May 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 first arrived in Australia on 2 August 2012 as the holder of a TU 572 Student visa. The applicant applied for a Subclass 500 Student visa on 27 February 2017 to undertake a Certificate IVs in Commercial Cookery (05/09/2016 to 02/03/2018) and a Diploma of Hospitality (05/03/2018 to 31/08/2018).

3. 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.

4. According to the Department decision record, a copy of which was provided to the Tribunal for the purposes of the review, the delegate 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 he was not satisfied that the applicant intended genuinely to stay temporarily in Australia. Among other things, the delegate was concerned about the applicant’s immigration and study history, noting that since his arrival he had only completed one course and been reported for unsatisfactory course attendance and academic progress; and his incentive to return home on completion of his study as he had only left Australia for 24 days since his arrival.

5. The applicant appeared before the Tribunal on 4 September 2018 to give evidence and present arguments. At hearing he submitted a Letter of Offer from Australis Institute of Technology and Education for a Diploma of Hospitality Management (1/10/2018 to 16/08/2020). 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 time of decision criterion in cl.500.212.

8. 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?

9. 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.

10. 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.

11. At the hearing, the Tribunal discussed with the applicant the reasons his Student visa had been refused in the context of the Genuine Temporary Entrant criterion, noting that the primary purpose of a Student visa was for an applicant to study and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant his circumstances in Malaysia and Australia, his immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.

12. The applicant told the Tribunal that, since arriving in Australia in 2011, he had completed only one course: Certificate IV in Business in 2013. After that he had been a dependent on his girlfriend’s Student visa from about 2014 but that they had broken up in 2015.  He had then enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality and had completed more than half of the Certificate IV in Commercial Cookery. On completion of his Diploma of Hospitality he intended to return to Malaysia to run a business.

13. As discussed with the applicant, the Tribunal shares the Department’s concern about his poor study history and lack of academic progress. The Tribunal is not satisfied that completion of just one course – a Certificate IV in Business Administration in 2013 represents a level of academic progress consistent with the purpose of a Student Visa. Although he claimed to have been studying Commercial Cookery, the Tribunal notes that the applicant failed to provide any evidence of this, including a Confirmation of Enrolment (COE).  Nor did the applicant provide documents showing his past studies in Australia, including copies of attendance certificates, academic transcripts and certificates of completion, as well as documents evidencing any work related to past or intended studies in Australia, as requested in his hearing invitation.

14. In accordance with s.359AA of the Act, the Tribunal drew to the applicant’s attention information from his Provider Registration and International Student Management System (PRISMS) record, which indicated a sequence of courses had been cancelled, including for non-commencement of studies, non-payment of fees and course changes. The applicant did not any offer any comment on this information when invited to do so.

15. In weighing up his circumstances in Malaysia and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return home on completion of his studies. While it accepts that the applicant has family ties to his parents and sister in Malaysia, the Tribunal is not satisfied that in themselves these ties constitute a strong incentive to return and notes his evidence that he has not been back in Malaysia since 2014, while his mother has visited him in Australia. While the applicant stated that he plans to return to Malaysia to open a business, by his own evidence he has never worked in Malaysia. By contrast, he has worked in various restaurants in Australia for most of the time he has been here.

16. 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.500.212(a).

17. 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.

18. 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

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

    Mara Moustafine
    Member