Sunanto (Migration)

[2018] AATA 1133

Sunanto (Migration) [2018] AATA 1133 (8 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr I Putu Sunanto

CASE NUMBER:  1606589

DIBP REFERENCE(S):  BCC2016/149984

MEMBER:Lilly Mojsin

DATE:8 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 March 2018 at 4:50pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether the applicant genuinely intends to stay in Australia temporarily – Significant period spent not studying – Enrolment obtained shortly before Tribunal hearing

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, 572.223(1)(a)

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. 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).

3. The delegate refused to grant the visa on 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.

4. The applicant appeared before the Tribunal on 8 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.  

5. The applicant provided an Offer of Enrolment, dated 7 November 2017 in order to study Certificate 11 in Spoken and Written English commencing on 27 November 2017 and ending on 28 May 2018, a Certificate 111 in Spoken and Written English commencing on 9 July 2018 and ending on 7 January 2019 and a Certificate IV in Spoken and Written English commencing on 21 February 2019 and ending on 22 August 2019.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The delegate of the Department was not satisfied that the applicant was a genuine temporary entrant as the applicant held a university degree from an Indonesian university and the applicant had not demonstrated how his chosen course would assist the applicant in improving his prospects of employment in Indonesia in the future.

7. At the Tribunal hearing the applicant said that he came to Australia as he wanted to learn English. His background is in civil engineering, he would like to work and return to Bali and communicate comfortably on a professional level. He completed civil engineering in Indonesia in Jogjakarta in 2002. When he finished university he worked as a site engineer at a construction company making roads and bridges. He stopped working as an engineer when he came to Australia in 2014. He is working in Australia as a kitchen hand. He is married and has 2 children in Indonesia, they are being cared for by his wife’s younger sibling and his parents. His wife is on a student visa and she was studying but fell pregnant and went back to Indonesia to give birth.  His wife is not in Australia. He has a younger sister and her husband works in an oil and gas company. His family are all from Bali. His 2^nd child was born in October 2015.  His wife left Australia in August 2015.  His visa expired on 14 April 2015. He completed Certificate 1 in English in August 2016. He did not study anything else after he completed course, he returned to Bali and returned to Australia again as he was confused. He did nothing as his education agent was closed he was waiting for information from the government because he wanted to study English.

8. Put that he provided Confirmation of Enrolment only one day before hearing and this suggest he is extending his stay in Australia. His said that his Confirmation of Enrolment  was cancelled and he wants to continue his studies as he wants to go home. He cannot study English in Bali as the materials in Bali are not that good as they only interact in class and when go outside do not interact. In Australia they are taught practical things.  

9. Without English he will be stuck working for lock companies only. He can work for foreign companies in Bali. Asked what sort of enquiries he has made in regard to working with these companies he said that some information he has received was applying for jobs, they require English and the interview is usually conducted in English.  He said that his applications were rejected when he heard they require English.  When asked what companies he has applied for, he said that there were several but he does not remember. It has been a long time.

10. Put that there are many tourists in Bali who speak English. He responded that to be honest not everyone is like that perhaps they are near a tourist area so they will have good English but he did not live near tourist attractions. Also some university graduates do not have good command of English.

11. Asked if he has made enquiries about having his qualifications recognised in Australia he said no he had not gone that far. He said that if his visa could be given he would like his salary to be increased.

12. The applicant came as a dependant of his wife, she fell pregnant and he did Certificate 1 and when he went home the school cancelled his Confirmation of Enrolment.  He then decided to wait for the outcome of these proceedings. If he finishes his course there are better job opportunities with 10 years experience. He has been back to Indonesia on 3 occasions visiting his family. He is trying to advance in his studies.

13. The applicant provided a submission to the Tribunal. He stated that that he had a job offer from an employer in Indonesia showing that he has good prospects of employment once he finishes his studies in Australia. The applicant explained that he need to perfect his English not only because it is an international language that everybody should learn in order to communicate well around the world but also because his country, Indonesia, needs more and more bilingual professionals to contribute with its development, which means that he will have more job opportunities when he returns home. He is looking to improve his skills to continue with his profession. He studied Certificate I in Spoken and Written English from 25 February 2016 to 25 August 2016. The applicant has strong ties in his home country namely his wife and two children. Although there are English courses available in Indonesia, these courses do not give the students the level of proficiency required for professional use. That is why the applicant has chosen to stay in Australia to improve his English.

14. The first 543 days of his stay in Australia the applicant held a TU 572 Vocational education and training sector visa, he was a secondary applicant on this visa because his wife was the main applicant. The second student visa lodged by the applicant only shows the applicant's drive to improve his professional skills by learning a new language (English) that will guarantee him better employment prospects in his home country as well as a better income as an Engineer.

    REASONS AND FINDINGS

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

16. The issue in the present application 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)….; and

    (iv)any other relevant matter; and

    (b)     …

17. 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.

18. 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.

19. Considering Direction 93 factors the Tribunal places weight on the following

20. The applicant is a civil engineer from Indonesia. He is married but his wife and children remain in Indonesia. He does not have family in Australia. He arrived in Australia accompanying his spouse who was the holder of a student visa. During the first 543 days of his stay in Australia the applicant held a TU 572 Vocational education and training sector visa as the secondary applicant, because his wife was the main applicant. The applicant lodged a second student visa and whilst awaiting the outcome of his application commenced studying English on 25 February 2016 and he completed his studies on the 25 August 2016.

21. He claims that by learning a new language (English) it will guarantee him better employment prospects in his home country as well as a better income as an Engineer. The Tribunal accepts that studying English is advantageous to obtaining work in the engineering field and the applicant has a job offer.

22. There is no information before the Tribunal to suggest that the applicant has an adverse migration history or that he has any military service commitments in Indonesia.

23. The Tribunal places greater weight on the following:

    • English is available for study in Indonesia. The applicant claims that English courses available in Indonesia do not give students the level of proficiency required for professional use or that the materials in Bali are not that good as they only interact in class and when go outside do not interact or that in Australia they are taught practical things.  The Tribunal does not accept this claim. The Tribunal has not found any independent evidence to support this claim and is of the view were it the situation some mention would be made in various articles such as Indonesian Journal of English Language Studies or DFAT reports.  

    ·The applicant provided a Offer of Enrolment to study Certificate II in Spoken and Written English to commence on 27 November 2017, Certificate III Spoken and Written English to commence on 9 July 2018 and Certificate IV in Spoken and Written English to commence on 21 February 2019 and end on 22 August 2019. The total time frame for these courses is 18 months.  The applicant completed his studies in Certificate I in Spoken and Written English in August 2016. He returned to Indonesia and then came back to Australia in September 2016. He did not recommence his studies. His explanation was that he was confused and his education agent was closed so he was waiting for information from the government because he wanted to study English. The Tribunal is not satisfied with this explanation, the applicant has been able to live and work in Australia, since September 2016  despite being confused and other education agents are available.  

    ·The applicant provided an Offer of Enrolment to the Tribunal that was made one day before the Tribunal hearing. When put that this suggests he is extending his stay in Australia the applicant said that his Confirmation of Enrolment was cancelled and he wants to continue his studies as he wants to go home. The Tribunal is  not satisfied that applying for an Offer of Enrolment one day before the Tribunal hearing suggests he wants to continue his studies and he wants to go back home, particularly because the applicant has not studied since September 2016.

    ·The applicant has a job in Australia as a kitchen hand

24. The Tribunal is of the view that the applicant did not recommence studies on his return to Australia in September 2016 and waited until just before the Tribunal hearing to obtain an offer of enrolment, as he was extending his stay in Australia.

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

26. 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

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

    Lilly Mojsin
    Member