Tan (Migration)

[2018] AATA 4691

Tan (Migration) [2018] AATA 4691 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eng Lim Tan

CASE NUMBER:  1710992

HOME AFFAIRS REFERENCE(S):           BCC2017/1034633

MEMBER:Mark Bishop

DATE:10 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 09 October 2018 at 3:23pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant criteria – no copy of Enrolment records – poor academic history – ties to home country – use of student visa program to maintain ongoing residency status – economic incentives –decision under review affirmed

PRACTICE AND PROCEDURE – decision made on review

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 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 9 May 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 15 March 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.500.212of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student.

4. The applicant provided a copy of the decision record to the Tribunal. It contained an extensive discussion of the applicant’s immigration, visa and study history in Australia.

5. In a written response to a request for Student Visa Information under s.359(2) of the Migration Act the applicant consented to the Tribunal deciding the review without a hearing.

6. The Tribunal resolved the review application on the papers.

7. The applicant was assisted in relation to the review by their registered Migration Agent (MA).

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

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

9. 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.

10. 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?

11. 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.

12. 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.

13. The applicant did not provide a GTE Statement to the Department.

14. The applicant did not provide a GTE Statement to the Tribunal.

15. The applicant did not provide a copy of a Confirmation of Enrolment (COE) in a course of study.

16. The applicant did not provide any COE’s, copies of course transcripts, statements of attainment or Certificates of Graduation or Completion to the Tribunal. The applicant did not provided any letters or information from his education provider that indicated course progress, if any in courses of study.

17. The decision record outlined the following:

    ·The applicant arrived in Australia on a visitor visa on 16 April 2016; on his passenger card said he intended to remain in Australia for seven days; remained in Australia for four months; applied to be a dependant on his partner’s student visa application; withdrew that application; returned to Malaysia just prior to his bridging visa expired; returned to Australia on 16 December 2016; on his passenger card said he would remain for 28 days on a holiday; has not departed Australia since that time; provided contradictory information to the Department and made incorrect declarations as to his living arrangements in Australia;

    ·The applicant had not studied since leaving high school;  initially applied to be a dependant on his partner’s student visa; and COE for enrolment in a VET course was created on 14 March 2017 the day before application was made for a student visa on 15 March 2017 and the day before a visitor visa was due to expire on 16 march 2017;

    ·The decision to study in Australia is driven more by a desire to remain in Australia than a desire to improve career prospects at home;

    ·The applicant has not worked since November 2015 and appears to be unemployed in Australia which raises concerns as to how the applicant might support himself in Australia;

    ·The applicant failed to provide strong reasons that satisfied the delegate that his study plan in Australia  would assist him to obtain employment or improve his employment prospects in his home country

18. The applicant did not challenge the findings of the delegate as outlined in paragraph 17 above.

19. The applicant provided a written response to a request for Student Visa Information under s.359(2) of the Migration Act. It provided as follows:

    ·The applicant attended an educational institution in his home country at an unspecified time;

    ·The applicant was employed as a salesman in his home country from March 2012 until November 2015;

    ·The applicant declined to provide any information about previous Australian Visa applications;

    ·The applicant enrolled in a Certificate III in Spoken and Written English from April 2017 until November 2017 and a Certificate IV in Business Administration from January 2018 until July 2018. The applicant did not complete either course. The applicant has not been enrolled in a course of study since July 2018;

    ·The applicant advised he had not been employed in Australia;

    ·The applicant advised he had a passport from Malaysia; first arrived in Australia in April 2016; returned to Malaysia in August 2016; and had not applied for a visa to another country;

    ·The applicant declined to provide detail as to any other countries vistited in the las  ten years;

    ·The applicant advised his annual living expenses were approximately $14,000;

    ·The applicant advised he last saw his parents and siblings in September 2016;

    ·The applicant declined to provide any information about title to any property or significant assets he owns; he declined to provide information about military service commitments or political or civil unrest in his home country.

20. The Tribunal has regard to Ministerial Direction Number 69

21. The Tribunal finds the applicant arrived in Australia on a visitor visa on 16 April 2016; on his passenger card said he intended to remain in Australia for seven days; remained in Australia for four months; applied to be a dependant on his partner’s student visa application; withdrew that application; returned to Malaysia just prior to his bridging visa expired; returned to Australia on 16 December 2016; enrolled in an English language course and  VET course; has completed or graduated from neither; has not been enrolled in a course of study since July 2018; has not provided any evidence of current enrolment in a course of study; has not provided any detail of circumstances in his home country (excluding employment until 2015 and the presence of immediate family); has not seen immediate family since September 2016; declined to provide information about his potential circumstances in Australia; provided only a brief one sentence general description of the value of the course to his future and provided visa and travel history detail as outlined in paragraphs 17 and18 above   

22. The Tribunal is unable to conclude the applicant’s ties to his home country, however limited and lacking specificity or detail excluding immediate family and past employment act as a significant incentive to return to Malaysia.

23. The applicant has not worked in Malaysia since late 2015. He has not worked in Australia. He has not provided any detail as to family or company assets in his home country. He has not provided any detail as to an income stream from Malaysia or remittances from Malaysia. His expenses in Australia are relatively modest. He advised his income as a salesman in Malaysia was approximately $20,000 per annum. The applicant clearly lives and has outgoings in Australia.

24. The Tribunal concludes the applicant’s economic circumstances in Australia present as a significant incentive for the applicant not to return to his home country.

25. The applicant provided only very limited information about his potential circumstances in Australia. It did not include family or community ties. It was limited to course enrolment detail, course progression detail, living expenses in Australia.

26. The applicant provided the most limited information as to his reasons for studying in Australia and the value of the course to his future. He did not provide any detail as to his academic progress, if any.

27. The Tribunal is inclined to the view the decision to study in Australia is driven more by a desire to remain in Australia more than a desire to improve career prospects at home. The applicant appears not to have worked since November 2015. As the applicant appears to have been unemployed for almost three years the Tribunal has concerns as to how the applicant supports himself in Australia.

28. The Tribunal has taken into consideration the applicant’s circumstances and the value of chosen courses to his future. The applicant has failed to give strong reasons that his study plan in Australia will assist him to obtain employment or improve his employment prospects in his home country in the future. The Tribunal has taken into account the applicant’s economic circumstances in his home country (his salary of $20,000 per annum in Malaysia in November 2015) relative to his potential economic circumstances in Australia and given consideration to the disparity in the economic circumstances between Malaysia and Australia.

29. On the whole the Tribunal places weight on the fact that the applicant did not provide evidence of previous academic studies, assets, business or social ties to Malaysia and this together with prior conflicting declarations (as outlined by the delegate and not challenged by the applicant) inclines the Tribunal to the view the applicant’s stay in Australia is motivated by factors other than study.

    Conclusion on cl.500.212

30. 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.

31. 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

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

    Mark Bishop
    Member