Ong (Migration)

[2018] AATA 4685

Ong (Migration) [2018] AATA 4685 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mei Mei Ong

CASE NUMBER:  1620073

HOME AFFAIRS REFERENCE(S):           BCC2016/2540012

MEMBER:Justin Meyer

DATE:8 October 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 08 October 2018 at 5:23pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant criteria – gap in studies – documents not submitted to the Tribunal – use of visa program to maintain residence status – decision under review affirmed

PRACTICE AND PROCEDURE – lost entitlement to a hearing

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363A, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

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 7 November 2016 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 1 August 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 does not genuinely intend to stay in Australia temporarily.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 the whether the applicant genuinely intends to stay in Australia temporarily.

   Genuine applicant for entry and stay as a student (cl.500.212)

5. 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?

6. 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.

7. 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.

8. 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. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information in these circumstances as the applicant did not provide any information in response to the Tribunal’s s.359(2) letter or contact the Tribunal at any point, nor did he engage in the review process since lodging the review application.

9. The Tribunal has reviewed the decision of the delegate. This decision is not binding on the Tribunal and the Tribunal brings an independent view to the review application.

10. The delegate’s decision, dated 7 November 2016, which was supplied to the Tribunal by the applicant, stated that the applicant on 30 May 2014, was granted a student visa (TU 572) which was valid until 05/08/2016.

11. The delegate had concerns that the applicant may be using the Student Visa Programme to maintain ongoing residence and circumvent the intentions of the migration programme. The delegate wrote that the applicant appeared to have enrolled in a new course for the purposes of securing a further student visa rather than due to a genuine interest in study and overall academic progress. Them delegate held these concerns because:

    ·The applicant’s last student visa (TU 572) was granted based on an intention to undertake Diploma of Management and Advanced Diploma of Management. Record shows the applicant completed a Diploma of Management on 31 December 2015, however the applicant did not commenced Advance Diploma of Management and her enrolment in this course was cancelled on 31 May 2016. The applicant was invited to comment on the above information and explain why she decided to discontinued with her in Advanced Diploma of Management.

    ·The applicant’s Student visa (TU 572) was subject to condition 8202 (Continues Studying). This condition requires students to be enrolled in a registered course. Examination of her study history indicates she completed Diploma of Management on 31/12/2015 and she did not commence Certificate III in Commercial Cookery until 18/07/2016. Therefore, she did not studied in a course for a period of more than 7 months. During this time, she was residing in Australia as the primary holder of a student visa.

    ·The periods during which she undertook no studies were said to clearly demonstrate that she had not complied with visa condition 8202. The applicant was invited to comment on and provide details of her activities from 31 December 2015 to 18 July 2016 and explain why she did not study a registered course during this period.

    ·The applicant responded in writing on and the delegate considered the study history, the information provided with the application regarding the applicant’s stated intention to comply with the Student visa (subclass 500) and immigration history.

12. The delegate had serious concerns that this applicant was using the Student visa program to maintain ongoing residence and circumvent the intentions of the migration programme given the academic record and gaps in study history. After weighing up these factors as a whole, the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

13. The applicant did not submit a Statement of Purpose or GTE statement to the Department or the Tribunal.

14. The Tribunal has considered clause 14(b)(iii) of Direction 69 with respect to the applicant.   The Tribunal finds that the applicant has been onshore for some time without successfully completing a qualification and that the student visa may be used primarily for maintaining ongoing residence in Australia.   

15. The Tribunal has considered clause 11(a) of Direction 69 with respect to the applicant and finds there is not evidence before it of the applicant having significant ties within Australia,

16. There is no relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: whether the applicant has reasonable reasons for not undertaking the study in their home country, the extent of the applicant’s personal ties to their home country, any potential military service in the home country, political circumstances in the home country, civil unrest 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 and whether the applicant is seeking to undertake a course of consistent with their current level of education,  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.

17. The applicant’s only relevant written remarks were at the time of her application surrounding how her parents ran a restaurant in Malaysia and that she was impressed by fusion style of cooking as seen in Australia. This is negligible description of events and reasons.

18. 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).

19. 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.

20. 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

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

    Justin Meyer
    Member