Min (Migration)

[2018] AATA 1913

Min (Migration) [2018] AATA 1913 (9 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Law Soon Min

CASE NUMBER:  1702284

Home Affairs REFERENCE(S):                BCC2016/3139412

MEMBER:Warren Stooke AM

DATE:9 May 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 09 May 2018 at 6:18pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine Temporary Entrant – Length of course – Admissions – Desire to bring children to Australia – Circumstances abroad – Separation from wife – Economic opportunities – Value of the course – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2 cls 500.212, 500.611

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 February 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 21 September 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 applicant initially entered Australia on a Tourist visa, whereupon the reason for entry was travel and then made an application to undertake courses of study in English. The delegate noted that the significant duration of a package of courses was beyond the expected norm and was not satisfied the intentions of the applicant for temporary entry were genuine.

4. The applicant appeared before the Tribunal on 9 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

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 complies with cl.500.212.

   Genuine applicant for entry and stay as a student (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. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

12. At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate’s decision of 6 February 2018 and that he understood the content of the decision.

13. The applicant provided the Tribunal with an explanation, as to his understanding for the refusal of the visa application by the delegate and acknowledged that the reason was that the delegate did not accept that the applicant met the criteria required for the grant of a visa.

14. The applicant was asked to confirm his status as a student and whether he had a current certificate of enrollment. The applicant confirmed that he was not enrolled and intended to undertake a Certificate in Cookery when he gets his visa. He stated that the school would not enroll him whilst he was on a Bridging visa. He said that his agent had not attended the hearing because he was at the school to inquire about enrollment. The applicant asked if the Tribunal could defer the hearing.  After consideration, the Tribunal responded that it was almost 18 months since he had lodged his application and that the decision of the delegate on 6 February 2017, had provided considerable time to make arrangements to obtain a certificate of enrolment. The applicant responded that he did not have the money to pay for the enrolment because of the visa restriction. He stated – “with no work permit, how can I pay the fee?”

15. The applicant is a 41 year old from Malaysia, who originally entered Australia an Electronic Travel Authority (Class UD subclass 601) on 13 June 2016, which was valid until 23 September 2016. The applicant then made an application on 21 September 2016 for a Student (Temporary)(Class TU) (subclass 500) visa to undertake a package of English language courses over a period of 18 months, which the Tribunal notes was two days before the expiry of the applicant’s Electronic Travel Authority.

16. The applicant gave evidence that after his mother died he decided to come to Melbourne and Sydney, as he wanted to travel. He advised – “I said to myself, I want to stay, I don’t want to go back to my country. I want to work here and stay. I have three children waiting for me.”

17. The applicant is divorced from his wife and has three children aged 17, 15 and 14, who are all at school, reside in Malaysia and live with their mother. The applicant divorced in August 2017 on the basis that they could no longer come to agreement. The applicant stated that – “my wife does not want to stay with me… I am not a good husband. I stayed with my mother for two years and never go back home”.

18. The applicant was asked by the Tribunal when do you intend to return to Malaysia and he responded – “Don’t want to go back. I want to stay here”.

19. The applicant formerly worked in the Oil and Gas industry (export and import) and was involved with the bunkering of shipping tankers with diesel and water, however he lost his job when the oil price collapsed, which was three years ago. The applicant had not undertaken any study since leaving school in Malaysia and commencing studies in Australia.

20. The applicant was asked by the Tribunal to explain the shift from Oil and Gas to Cookery. He stated that he wanted to change his life. He stated that it was easy to find a job (in Melbourne). He does not have permission to work under his Bridging visa but was able to find work in a Chinese restaurant as a kitchen hand, when he asked them to give him a job.  He said that he “had no choice”. He also gave evidence that he was paid $10 per hour, cash.

21. The applicant then repeated the statement – “I want to stay here.”

22. The applicant lives in Franklin Street in a share house with three Koreans; one Japanese; and one Malaysian. He does not pay rent and is living as a gesture of his friend.

23. The applicant advised the Tribunal that it was his aspiration to open a restaurant and for his children to come to Australia to study and live.

24. The applicant was asked if there was any reason that would prevent him from going back to Malaysia. He said that he can’t get a licence (referring to the Oil and Gas industry) because he is not Malay, but gave no other reason.

25. The applicant when invited to make a final comment stated – “I have already chosen here and it’s important for my kid’s future”. The children want to study in Singapore.

26. 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).

    Does the applicant intend to comply with visa conditions?

27. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

28. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

29. The Tribunal is satisfied that the applicant does not genuinely intend to stay in Australia as a genuine temporary entrant for study, based upon his own admissions that he wants to stay here and bring his children to Australia to live and study. Further, the applicant arrived in Australia on an ETA and two days before the expiry made an impromptu decision to study English. This behaviour conflicts with the stated purpose of the travel visa and is not the expected behaviour of a genuine temporary applicant for the purposes of study.

30. The Tribunal concurs with the delegates decision that there is a low incentive to return home and that the applicant is using the Student visa programme as a means of maintaining residence in Australia.

31. On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

32. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

33. The applicant is not undertaking any course of study at the present time and the Tribunal is satisfied that the applicant has no valid reason to stay in Australia for the purposes of study.

    Conclusion on cl.500.212

34. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

35. Given the applicant’s personal circumstances, immigration history, the lack of value of the course to the stated future goals and the comparatively greater economic and employment opportunities in Australia, the Tribunal finds that the applicant is using the Student visa program to circumvent the intentions of the migration program.

36. 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.

37. 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

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

    Warren Stooke AM
    Member