LIM (Migration)

[2017] AATA 1884

LIM (Migration) [2017] AATA 1884 (11 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Chong Lee LIM

CASE NUMBER:  1613137

DIBP REFERENCE:  BCC2016/1961587

MEMBER:Lilly Mojsin

DATE:11 October 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 11 October 2017 at 13:39pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Falsified documents – Genuine student – Genuine intent to stay temporarily - Failure to appear

LEGISLATION

Migration Act 1958, ss 65, 360, 362B, 499

Migration Regulations 1994, 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 6 June 2016. The delegate decided to refuse to grant the visa on 2 August 2016.

3. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student 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), or whether the applicant has the support of the relevant Minister (Subclass 576).

4. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant is a genuine applicant for entry and stay as a student.

5. The applicant appealed that decision to this Tribunal and attached a copy of the Department decision to his application for review.

6. The applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 11 October 2017. The invitation stated that if he did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.

7. The applicant’s advisor, on 6 September 2017, notified the Tribunal that he had ceased to act for the applicant. The Tribunal wrote to the applicant, on 7 September 2017, requesting that he provide either an appointment of a representative form or authorised recipient form or provide his change of contact details. The applicant did not respond.

8. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

9. The applicant did not appear before the Tribunal on 11 October 2017 to give evidence and present arguments.

   In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant arrived in Australia on 11 March 2016 as the holder of a Visitor Visa (UD-601). The applicant applied for a Student Visa on 6 June 2016 in order to study English for General Purposes commencing on 13 June 2016 and ending on 2 September 2016 followed by a package of English courses, a Certificate  IV in Marketing and a Diploma of Marketing.

11. The delegate of the Department wrote to the applicant on 14 June 2016 inviting him to comment on his circumstances in relation to the genuine temporary entrant criterion. The applicant responded stating that when he arrived in Australia he made friends and was inspired to further his career. He indicated also that he had been offered employment in Malaysia when he completed his studies in Australia and included an offer of employment.

12. The delegate was not satisfied that the applicant was a genuine student as a bank account he had provided showed that he opened it shortly after his arrival in Australia as the holder of a visitor visa, the offer of employment letter did not mention a start date and did not appear to be genuine. Further the applicant had arrived in Australia on a previous visitor visas declaring he would be staying, in Australia, for three days only but both times exceeded his stay. The delegate believed that this called into question the veracity of his intentions. Further the delegate was not satisfied the applicant had provided any substantial reasons why he had chosen to study his courses and gave weight to the lack of apparent value of the courses to his future indicating he did not genuinely intend to stay in Australia temporarily and he was using the student Visa program as a means of maintaining residence in Australia.

    REASONS AND FINDINGS

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

14. 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)     …

15. 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; 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 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.

17. The applicant has not attended the Tribunal hearing. The applicant has only provided a bank statement from the Commonwealth Bank in support of his student Visa application and a letter from a company in Malaysia dated 5 June 2016 offering him a position as a sales marketing officer.

18. As the applicant did not attend the Tribunal hearing the Tribunal is unable to be satisfied that the applicant is enrolled in a course of study or has a confirmation of enrolment in a course of study in Australia. The Tribunal is unable to be satisfied in relation to the applicant’s circumstances in Malaysia or in Australia or to the value of a course of study to the applicant’s future. The Tribunal is unable to be satisfied in relation to the applicant’s immigration history and his previous travel to Australia and other countries.

19. 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.

20. Accordingly, the applicant does not meet cl.572.223(1)(a).

21. 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

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

    Lilly Mojsin
    Member