Low (Migration)

[2018] AATA 5816

Low (Migration) [2018] AATA 5816 (30 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Chee Meng Low

CASE NUMBER:  1709577

HOME AFFAIRS REFERENCE(S):          BCC2017/596692

MEMBER:P. Wood

DATE:30 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 30 November 2018 at 5:40pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine applicant for entry – use of student visa program to maintain ongoing residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359C(1), 359(2), 360(C), 499
Migration Regulations 1994, Schedule 2, cls 500.211 – 500.218

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 28 June 1974 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 13 February 2017. 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).

4. On 29 May 2018 the Tribunal formally wrote to the review applicant’s registered migration agent pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal. The Tribunal did not receive any response to that invitation. That is, the applicant has not provided the Tribunal with any further information than that which was provided to the Department.

5. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the review applicant’s nominated representative, being the representative nominated by the review applicant in connection with his application for review.

6. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).

7. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

8. At this point is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

9. In these circumstances, the Tribunal has decided to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. 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?

13. 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.

14. 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.

15. The applicant is a 44-year-old male from Malaysia who first arrived in Australia on 13 November 2016 on short stay (3 month) visitor visa.

16. He declared his current employment as a sales manager and the purpose of his travel to be for a five day holiday. Exactly 3 months after arriving for what was meant to be a five-day holiday the applicant lodged the student visa application which is now before this Tribunal.

17. The applicant proposed to study a Diploma and Advanced Diploma of Leadership and Management at the vocational level.

18. In his application to the Department, the applicant declared being in a de facto relationship. No further information in relation to the relationship was provided.

19. With his application to the Department, the applicant did not provide any response in relation to the genuine temporary entrant question and instead wrote “please see attached GTE statement”. No such attachment was uploaded.

20. The applicant declared that his highest level of education was the equivalent of year 11 secondary (completed in Malaysia) but did not provide any further information regarding his previous employment or intended future employment.

21. It is common knowledge that there is an economic disparity between Australia and Malaysia.[1] In the circumstances of this particular applicant, the Tribunal is concerned that the applicant may be intending to use the student visa program primarily to maintain ongoing residence in Australia. The Tribunal considers the applicant’s economic circumstances in Australia, specifically the capacity to earn Australian dollars in ordinary employment, would present a significant incentive for the applicant not to return to Malaysia.

    [1] See also “World Development Indicators”, data.worldbank.org/products/wdi, November 2018

22. There is insufficient evidence before the Tribunal regarding the following factors indicated by Direction 69: whether the applicant has reasonable reasons for not undertaking the study in his home country, any potential military service in the home country, political circumstances in the home country, remuneration the applicant could expect to receive in the home country compared with Australia, the value of the course to the applicant’s future employment, circumstances in the home country relative to Australia or any other country and the applicant’s circumstances in the home country relative to others in that country.

23. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Having not provided any additional information to the Tribunal, as requested, the applicant is mostly relying on the strength of his previous bare assertions. In this case the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia.

24. In all the circumstances, the Tribunal does not accept the applicant’s assertions that he is a genuine temporary entrant. 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).

25. 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.

26. 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

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

    P. Wood
    Senior Member