Poon (Migration)

[2018] AATA 5521

Poon (Migration) [2018] AATA 5521 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Hai Wei Poon

CASE NUMBER:  1714236

HOME AFFAIRS REFERENCE(S):          BCC2017/2094166

MEMBER:P. Wood

DATE:20 December 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 20 December 2018 at 9:50am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500(Student) visa –genuine temporary entrant criterion –ties with Australia present as a strong incentive to remain in Australia– maintain ongoing residence in Australia –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 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 19 June 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 14 June 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(a). of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The Tribunal formally wrote to the review applicant 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 written invitation.

5. That is, the review applicant has not provided the Tribunal with any further information than that which was provided to the Department.

6. 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 address, being the address provided by the review applicant in connection with this application for review.

7. 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).

8. 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.

9. It 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.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. 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?

14. 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.

15. Direction No.69 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.

16. The applicant is a 36-year-old Malaysian national who first entered Australia as the holder of a subclass 601 short stay visitor visa on 18 March 2017.

17. At the time, the applicant declared intention to visit Australia for only five days. The applicant remained in Australia for almost 3 months before applying for the student visa which has brought the applicant before the Tribunal.

18. The Tribunal has concerns regarding the applicant’s capacity and willingness to circumvent ordinary migration processes. That is, whilst the applicant is not prohibited from applying for a student visa in this manner, the Tribunal is concerned that the applicant may have applied for a visitor visa with an intention to remain in Australia other than as a visitor. If the applicant wanted to study in Australia at the time of applying for a visitor visa, the proper course would have been for the applicant to apply for a student visa offshore.

19. According to the delegate’s decision record, provided by the applicant to the Tribunal, the applicant’s siblings continue to live in Malaysia. In all the circumstances, the Tribunal does not consider the presence of the applicant’s siblings in Malaysia a significant incentive to return.

20. The Tribunal has read and had regard to the genuine temporary entrant statement entitled “dear officer” provided to the Department by the applicant (at Department file folio 11). In this statement the applicant claims to want to undertake “courses including Certificate in EAL, business administration and diploma in business administration”. There is no information before the Tribunal as to whether the applicant proceeded to study with this or other study after the delegate’s decision. The Tribunal therefore cannot conclude in relation to academic progress in Australia.

21. The applicant’s genuine temporary entrant statement also claims that the applicant completed high school in Malaysia, a work history as a machine operator in Malaysia for almost 5 years, and a desire to work in sales and business in the future. The applicant claims to have chosen to study in Australia because of the high quality education available and describes his chosen education provider as an “innovative and entrepreneurial institution”. The Tribunal considers the applicant’s claims in relation to his future broad and imprecise, and considers the courses proposed are not relevant to the applicant’s past employment.

22. It is common knowledge that there is an economic disparity between Australia and Malaysia. In the circumstances, 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 circumstances in Australia, specifically the capacity to earn Australian dollars in any ordinary employment, would present a significant incentive for the applicant not to return to Malaysia.

23. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: whether the applicant has reasonable reasons for not undertaking the study in Malaysia, the applicant’s ties with Australia which would present as a strong incentive to remain in Australia, any potential military service in Malaysia, political circumstances in Malaysia, remuneration the applicant could expect to receive in Malaysia compared with Australia, circumstances in Malaysia relative to Australia or any other country and the applicant’s circumstances in Malaysia relative to others in that country.

24. The applicant has not declared in immigration history outside of Australia-Malaysia and the Tribunal does not make any adverse findings in respect of the applicant’s immigration history.

25. 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 bare assertions. In all the circumstances, the Tribunal does not accept the applicant’s assertions claiming to be a genuine temporary entrant.

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).

27. 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.

28. 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

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

    P. Wood
    Senior Member