Tan (Migration)

[2020] AATA 3947

Tan (Migration) [2020] AATA 3947 (22 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr. Kok Hoe Tan

CASE NUMBER:  1930351

HOME AFFAIRS REFERENCE(S):          BCC2019/4542941

MEMBER:Paul Adami

DATE:22 July 2020

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 22July 2020 at 12:36pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–failed to provide the requested information within the prescribed period – genuine temporary entrant criterion not met–use the student migration program to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cl 500.212

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 Home Affairs on 4 October 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 11 September 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia as a full time student.

4. On 1 June 2020, 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 (‘Request for Student Visa Information’), including information as to his enrolment and being a genuine applicant for entry and stay as a student. The invitation was sent to the review applicant at the email address provided by the applicant in his 25 October 2019 ‘Application for review’.

5. The invitation advised that if the information was not provided in writing in the prescribed period, that is by 15 June 2020, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information, and the applicant would lose any entitlement he might have otherwise had under the Act to appear before the Tribunal to give evidence and present arguments: section 359C(1).

6. The Tribunal has not received a response to the written invitation to provide information from the applicant. Pursuant to s360(3) of the Act, the applicant is not entitled to appear before the Tribunal. 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.

7. It is appropriate to note 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.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 genuinely intends to stay in Australia temporarily as a full time student.

11. 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?

12. 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.

13. 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.

14. The applicant is a 32 year old Malaysian male who travelled to Australia on 18 June 2019 holding a Tourist visa. According to the delegate’s 4 October 2019 Decision Record, on 11 September 2019 the applicant applied for a Student (Class TU Subclass 500) visa to study a Certificate III and Certificate IV in Business at Windsor College from 04/11/2019 to 07/11/2021. It is the delegate’s 4 October 2019 refusal that gives rise to the review application before the Tribunal.

15. The Tribunal has read and had regard to the documentation provided by the applicant to the Department and the Tribunal. This relevantly includes; the applicant’s Application for a Student Visa dated 11 September 2019; copy of the applicant’s passport identity page; applicant’s undated GTE Statement filed with the Department; delegate’s 4 October 2019 Decision Record.

16. The applicant in his undated GTE Statement filed with the Tribunal states, “I was previously working in Raffle City Holding which is a company that manages properties. My key tasks were in management of the maintenance areas. I started as a maintenance person however, as my career progressed, I ended up supervising informally of the maintenance works. I want to get a better position in management therefore I decide to continue my studies in Certificate III and IV in Business. I believe this executive decision to further my studies will carve my future for my career development.” Later on the applicant states, “I believe the contributions from my learning will aid me in securing my promotion or application for a better job in maintenance management.” [original]

17. In his Application for Student Visa, the applicant states that his father and brother live in Malaysia, and that his mother has passed away. The applicant states that he is unmarried and that the highest level of schooling he has achieved is Year 12 equivalent study. The applicant states that his has worked from 2006 to May 2019 as a real estate negotiator, and that he hopes to work as a property team sales manager at the completion of his studies in Australia. The applicant states in his GTE Statement that he intends to return home upon completing the Certificate II and Certificate IV in Business.

18. The Tribunal does not consider that the applicant’s father and brother of themselves act as a significant incentive for the applicant to return to Malaysia. The applicant has not provided any specific information of his economic circumstances in Malaysia or Australia. The Tribunal is unaware of any personal assets owned by the applicant in Malaysia or Australia that may act as an economic incentive to either return to Malaysia or remain in Australia. As such the Tribunal cannot meaningfully weigh this factor in concluding the applicant is a genuine temporary entrant.

19. The applicant lists travel to other countries prior to arriving in Australia, but he has not travelled since arriving in June 2019. There is nothing concerning about the applicant’s visa or travel history.

20. The Tribunal notes that the applicant states an intention to return home to Malaysia upon completion of his studies. The Tribunal accepts that the applicant might slightly improve his employment prospects and remuneration completing his studies; however the Tribunal considers that this must be weighed against his extensive work experience and that the proposed studies at the Certificate III and Certificate IV level (AQF Level 3 & 4 out of 10 levels).

21. In his GTE Statement the applicant states that he came to study in Australia because, “I initially wanted to study in a private education institute in Malaysia but when I looked over the cost it ranges from RM35,000 – RM50,000 per year. A Diploma in Management or Business which are both strong certificates for the next step in my career will amount to a total cost or RM105,000 – RM150,000.” The Tribunal notes that the applicant is not studying a comparable Diploma in Australia, but is studying two Certificates. The Tribunal does not consider that the applicant is comparing like for like study, even discounting the fact that there is no evidence to support to figures stated. The Tribunal does not consider that this general submission, without more specific information, amounts to reasonable reasons for not undertaking study in Malaysia.

22. The Tribunal further considers that the applicant is spending money to live and study in Australia, where he has only advanced a general improvement to his employment prospects. In his GTE Statement the applicant states, “I am happy to continue working for my current company if they would offer me the same position. Alternatively I will also look into other competing companies in property management.” The Tribunal considers that the applicant has not demonstrated a clear and substantial improvement in his career prospects, and as a result the Tribunal does not consider the courses will much improve the applicant’s future.

23. The applicant failed to provide additional information to the Tribunal as requested in its 1 June 2020 invitation, and the applicant is relying on the strength of the previous assertions made by him, and the documents previously filed by him. This material in support was filed in 2019.

24. There is no evidence before the Tribunal regarding the following factors indicated in Direction No. 69; his community ties in Malaysia and Australia that would serve as a significant incentive to return to Malaysia;  his specific economic circumstances; any potential civil or military service commitments that would present as a significant incentive for him not to return to Malaysia; any political and civil unrest in Malaysia that may induce him to apply for a Student Visa as a means of obtaining entry to Australia for the purpose of remaining indefinitely; the remuneration that he could expect to receive in Malaysia or a third country compared with Australia using the qualifications gained from his proposed studies; his circumstances in Malaysia relative to the circumstances of other in Malaysia.

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. The Tribunal is concerned that the applicant is using the student visa program primarily in order to maintain ongoing residence in Australia. Accordingly, the applicant does not meet cl.500.212(a).

26. On the basis of the above, 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.

27. 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

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

    P. Adami

    
    

    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.