Tan (Migration)

[2021] AATA 241

Tan (Migration) [2021] AATA 241 (28 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Heng Khar Tan

CASE NUMBER:  1925791

HOME AFFAIRS REFERENCE(S):          BCC2019/3909885

MEMBER:Margaret Forrest

DATE:28 January 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 28 January 2021 at 10:07am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentives to remain or return – family ties not strong incentive to return – no evidence of work or community ties in Australia – change of study plan – vague details about future plans – consent to decision on papers – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(b), (3)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(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 Home Affairs on 28 August 2019 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 7 August 2019. 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 delegate was not satisfied that the applicant was a genuine temporary entrant.

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

5. On 12 January 2021 the Tribunal sent the applicant a hearing invitation requesting that the applicant attend a telephone hearing on 28 January 2021.  The invitation was sent to the applicant’s registered migration agent and requested that the applicant complete and return the ‘Response to hearing invitation – MR Division’ form within 7 days of receipt. 

6. On 15 January 2021, the review applicant submitted the ‘Response to hearing invitation – MR Division’ form to the Tribunal and  in that form indicated that he would not participate in the hearing and that he consented to the Tribunal making a decision on the papers without taking further steps to allow the applicant to appear.  The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 is a genuine temporary entrant.

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

9. 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?

10. 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, which is attached to this decision, 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.

11. 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.

12. The applicant submitted an information form to the Tribunal on 19 June 2020.  In the information form, the applicant confirmed that he first arrived in Australia on 8 May 2019.  In the visa application form the applicant submitted to the Department, the applicant indicated that when he first arrived in Australia he was on a visitor visa. 

13. The applicant applied for his student visa on 7 August 2019. When the applicant applied for his student visa he was proposing to study a Diploma of Leadership and Management. The applicant provided a confirmation of enrolment certificate for this course dated 30 August 2019 to the Tribunal.  The certificate indicates that the applicant’s Diploma of Leadership and Management commenced on 19 August 2019 and has an end date of 14 February 2021.  In the information form the applicant indicated that he is presently studying this course. 

14. Prior to coming to Australia, the applicant completed Highschool in his home country Malaysia between 2002 and 2013. 

15. In the information form, the applicant indicated that prior to coming to Australia he worked as a real estate agent at The Roof Realty between May 2014 and May 2019.  The applicant said he earned approximately $AUD1,200 per year in this role.

16. The Tribunal considered the applicant’s circumstances in his home country. In response to the following question in the information form:

    If there are similar courses available in the main applicant’s home country or region to the courses they are currently studying and/or propose to study in Australia, please give details of the main applicant’s reasons for not undertaking the courses in their home country or region.

17. The applicant responded:

    Please see the attachment.

18. On 19 June 2020, the applicant submitted a personal statement to the Tribunal, in the Personal statement the applicant said:

    Then, I have continued by secondary studies in Malaysia.  But I found that teaching philosophy in Malaysia focuses more on students’ improvement in theoretical content than professional skills.  So I cannot gain some useful professional skills about running a business from the study at secondary school in Malaysia. Besides, Malaysia’s official language is Malay, and most of the high school students do not take full English lessons, so I cannot gain more chances to have English communicated with other people in Malaysia.  Besides, I found that lots of students choose to study abroad, enabling them to have more opportunities for English communication and interaction with people from diverse backgrounds.

19. In the information form, the applicant said that his mother and father reside in Malaysia and he last saw them in May 2019.  The applicant said that since arriving in Australia on 8 May 2019, he has not returned home to Malaysia.  The applicant said that he and his family communicate and Facetime twice per week.  The applicant said he is not concerned about military service commitments or political or civil unrest in Malaysia.     

20. When all of this evidence is taken into account the Tribunal finds that the applicant’s family ties to Malaysia do not, of themselves, form a strong incentive for the applicant to return to Malaysia. In making this finding the Tribunal has placed significant weight on the fact that the applicant has been in Australia for approximately 1 year and 9 months and has not returned to visit his family in Malaysia during this time.  The applicant has managed to keep in touch with his family in Malaysia during this period through electronic means.

21. The Tribunal considered the applicant’s potential circumstances in Australia.  The applicant did not provide any information to the Tribunal to indicate that he has any family living in Australia.  In the information form, the applicant did not provide any information about any work in Australia or any community ties in Australia. The applicant said that his assets consist of a bank account that has $17,490 in it for his tuition fees. 

22. Taking all of this evidence into account the Tribunal finds that the applicant’s family ties to Australia are not, of themselves, a significant incentive for the applicant to remain in Australia.

23. The applicant’s present course is scheduled to conclude on 14 February 2021. In the Personal statement the applicant submitted to the Tribunal he stated:

    In addition, I always hoped that I could have a chance to enter good university and select my dream major, which is management, because I was interested in this field.  So, I studied harder, hoping further to be admitted to a better university in Sydney.  I felt I was closer to my dream of studying in Australia.  So, I would like to study hard in Australia and be more prepared to build up my studio when I get back to Malaysia.

    My original plan is that I will go back to my home country to build up by studio after finishing the diploma course at Choice Academic College. If I cannot be granted a student visa, then I may miss the opportunity to study in Australia as an undergraduate.  That means I wasted all those years studying in the Choice Academic College and gaining the learning experience in Australia.  This is because a high school certificate is not enough to find a good job in Malaysia or even build up a studio, and a decent job requires an undergraduate’s degree or above.  Moreover, during my period of studying and living in Australia, I have a good understanding of the environment and life here, and I hope to continue to have further education here.  After finishing my undergraduate course, I will return to my home country as soon as possible, and I believe my academic background will help me build up my own business with my family support. 

24. In the genuine temporary entrant statement the applicant submitted to the Department, the applicant said:

    After graduation from Choice Academic College, I will go back to my home country to establish my studio.   

25. The Tribunal has taken into account this unexplained change in the applicant’s plans and is concerned that the applicant may be attempting to use the student visa system to stay in Australia for longer.

26. The Tribunal considered the value of the applicant’s current course to his future.

27. In the applicant’s Personal statement he said:

    When I studied in high school in Malaysia, I was keen on photography and bought a lot of books to read in order to self-study photography.  My relatives who are a successful businessman and always tell me some stories about doing business.  So, I was interested in doing international business when I knew this field.  My dream is to become a successful businessperson and establish a photography studio.  I had self-study photography when I was studied in high school.  In my opinion, I think I am ready to begin my further career, so I talk with my relatives about my further plan.  But he told me I still lack essential management skills and English communication ability, which is very important for my further no matter in doing a job or running a studio.  He told me that an excellent manage is essential for the company to help a team be unlimited and excellent.  I realized I need to go back to school and study more about leadership and management philosophy if I want to build up my own business…

    In addition to that, mastering English could be a key competitive advantage in the job market.  This is because it is quite common that employers tend to select the candidates who had bilingual skills.  Moreover, if the candidate gains the qualification overseas, the merits will be more persuasive…

    Further, I decide to do the diploma course with the major of leadership and management in the Choice Academic College of Australia.  I acknowledge their educational purpose of focusing on leadership management…Also, my family, all thought courses about business might be perfect for my future career and supported my dream.  I have expected to continue my studies and acquire a diploma degree since it will be beneficial for my future in Malaysia.   

28. The applicant did not provide any information to the Tribunal about any qualification he has that relates to photography.

29. The Tribunal finds that the applicant has provided only vague details about his future plans.  The Tribunal also finds that the applicant has failed to explain in any meaningful detail why he requires a Diploma of Leadership and Management as well as an undergraduate degree in Management to complete his future plan of establishing a photography studio.  In making this finding the Tribunal has taken into account the limited details the applicant provided about these matters in his Personal statement and the genuine temporary entrant statement he submitted to the Department.

30. In the information form, the applicant said that he earned approximately $AUD1,200 per year as a real estate agent before coming to Australia.  In the information form, the applicant did not provide any information about any work he may have undertaken in Australia. The applicant has not provided any information about what he expects to earn when he returns to Malaysia.  

31. The Tribunal has taken into account the applicant’s immigration history insofar as the applicant arrived in Australia approximately 1 year and 9 months ago on a visitor visa.  The applicant’s current course is scheduled to conclude on 14 February 2021 and the applicant says that he intends to stay in Australia beyond this point in order to complete an undergraduate degree. 

32. 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. Although the Tribunal has found that the applicant’s ties to Australia, do not, of themselves, constitute a strong incentive for the applicant to remain in Australia, when the Tribunal takes into account the following findings and evidence, the Tribunal is concerned that a student visa may be used for maintaining ongoing residence. That is:

    a.First, the Tribunal’s finding that the applicant’s family ties to Malaysia do not, of themselves, constitute a strong incentive for the applicant to return to Malaysia.

    b.Second, the fact that the applicant has changed his future plan from leaving Australia as soon he finishes his current course to leaving Australia after he also completes an undergraduate degree, without explanation for this change.

    c.Third, the Tribunal’s finding that the applicant has provided only vague details about his future plans.

    d.Fourth, the Tribunal’s finding that the applicant has failed to explain in any meaningful detail why he requires a Diploma of Leadership and Management as well as an undergraduate degree in Management to complete his future plan to establish a photography studio.

    e.Fifth, the fact that the applicant arrived in Australia approximately 1 year and 9 months ago on a visitor visa and, despite his current course finishing on 14 February 2021, he plans to stay in Australia beyond this point in order to complete an undergraduate degree.

    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).

    Conclusion on cl.500.212

33. 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.

34. 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

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

    Margaret Forrest
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.