TAN (Migration)

[2018] AATA 3175

TAN (Migration) [2018] AATA 3175 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr WEI AIK TAN

CASE NUMBER:  1708385

HOME AFFAIRS REFERENCE(S):           BCC2017/374949

MEMBER:Penelope Hunter

DATE:2 August 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 02 August 2018 at 10:10am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant criteria – No clear career plans – Credibility issues – Lack of knowledge of course details – Family ties in Malaysia – Economic incentives to remain in Australia – Working as a fruit picker – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 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 3 April 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 28 January 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.

4. The applicant appeared before the Tribunal on 25 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   CLAIMS AND EVIDENCE

7. The applicant is a citizen of Malaysia and arrived in Australia on 2 November 2016 on a visitor visa.

8. He applied for the visa in order to undertake study in a Certificate III and Certificate IV in Business with course dates from 20 February 2017 to 22 February 2019.

9. The applicant’s highest level of schooling completed outside Australia was secondary school, year 11 equipment and he had worked from April 2001 to September 2016 as a Marketing Supervisor at Vibes Hair Studio Academy in Malaysia.

10. In submissions in support of his application the applicant set out the following information;

    i.The biggest obstacle in his career was the lack of relevant qualifications. He had seen a lot of juniors be promoted to team leaders, supervisors or even managers within five years. He claimed he was more experienced but he was not competitive enough without qualifications. For this reason he decided to quit his job and undertake further study.

    ii.He had spent some time researching further study and visited a few education agencies in Malaysia. He made the decision to visit Australia for a holiday to visit colleges before he decided to study.

    iii.Studying in Malaysia would not give him an advantage to compete with others because he would not have gained overseas experience. Studying in Australia will provide him with a lot of opportunities to explore the Western world and a problem-solving skill set from a different culture. It would be more competitive with this experience when he returned to Malaysia.

    iv.While holidaying in Australia he visited many schools he found his current education provider to be very suitable. The courses he has enrolled in will provide relevant knowledge and business to assist him to get to his goals.

    v.He intends to return to Malaysia once his completed his studies. He wants to go back to be around his family and friends. His parents are getting older he is responsible to look after them for future. In addition he has a brother.

    vi.It was not working as he was studying without being distracted by work.

11. The delegate in their decision, copy of which the applicant has submitted to the Tribunal, set out the following reasons for refusal of the visa;

    i.The applicant had not provided evidence to demonstrate any further study since he graduated from secondary education in 2001. Also he had not clearly demonstrated any specific employment opportunities in his country to justify the relevance of his study proposal in Australia. It was not considered that the applicant had demonstrated a strong reason to study in Australia.

    ii.With respect to the applicant’s potential circumstances in Australia it was noted that he had only declared parents a brother remaining in Malaysia. These family ties alone were not considered a strong incentive to return home. The applicant had ceased his employment in September 2016 and although he had been employed since 2001 he was unable to demonstrate personal finances in Malaysia.

    iii.Additional weight was placed the applicant’s migration history and his decision to continue residing in Australia after the expiry of his visitor visa.

12. Prior to the Tribunal hearing the agent for the applicant provided submissions and the following additional documents;

    i.A Confirmation of Enrolment (CoE) in a Certificate III in Business from 20 February 2017 to 16 February 2018,

    ii.A CoE in a Certificate IV in Business at the Australian College of Vocational Studies from 19 February 2018 to 22 February 2019 (ACVS).

    iii.A CoE in a Certificate IV in Business Administration from 7 May 2018 to 4 November 2018 at the Sydney School of Business and Technology (SSBT)

    iv.A CoE in a Diploma of Business Administration at the from 5 November 2018 to 3 November 2019  at the SSBT.

    v.A CoE in an Advanced Diploma of Business Administration from 11 November 2019 to 11 October 2020 at the SSBT.

    vi.A statement of an account of Tan Hong Leng and evidence that Tan Hong Leng is the father of the applicant.

13. The submissions contained in summary the following in formation;

    i.The applicant had previously studied at the ACVS, these courses were due for completion on 22 February 2019. Due to the closure of the ACVS, and despite its closure the applicant did not give up on being a genuine student and transferred to the SSBT.

    ii.At the SSBT, the applicant will learn to prepare financial reports, profile the market, promote products and services, manage market research, develop an advertising campaign and contribute to organisation development.  Leading a company is necessary for the applicant’s future and managing market research can help him to keep a tab on his competitors.

    iii.The applicant was family orientated, he believed that it was his responsibility to return to Malaysia to take care of his family once he completes his study in Australia.

    iv.He has sufficient funds from his father to the value of $47,000 AU to support his study. The applicant had planned his future study in Australia before he departed Malaysia.

    v.The applicant planned to look for work in a managerial position in Malaysia in the future and this was the main reason that he had chosen his business course. He hoped to return to Malaysia to continue to work as a marketing supervisor, salon manager or brand manager. He hopes that his study overseas will help him gain a high advantage over other local applicants.

    vi.The applicant had complied with his visa condition when he visited Australia and this was strong evidence to show that he was a law abiding person.

    RELEVANT LAW, FINDINGS AND REASONS

14. 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 satisfies clause 500.212 of Schedule 2 to the Regulations.

15. 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?

16. 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.

17. 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.

18. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

19. While the Tribunal accepts that the applicant has maintained enrolment in several courses of study, it is not satisfied, from his evidence at the hearing, that the applicant is engaged in his studies or that he has demonstrated a reason for undertaking his studies. The applicant claimed to have been attending his current course, the Certificate IV in Business Administration since May 2018, and his classes 3 days a week. However he was unable to provide details to the Tribunal of any subject or units as part of his course that he was undertaking. He was unable to discuss in a meaningful way any of the material that he was learning when attending his classes the in the days prior to the hearing, other than commenting that it was something about business. He told the Tribunal that he had completed tests and assignments as part of his course but was unable to describe or recall for the Tribunal what they were about. The applicant was also unable to provide a meaningful response to questions from the Tribunal about any subjects he had undertaken as part of courses in Australia, other than it was business. The applicant produced at the hearing a copy of a Certificate III in Business issued by his former education provider, ACVS, however the applicant did not know what units or subjects he undertook as part of the course. When asked for details of an academic transcript and he claimed that he did not have one.  In the written submissions provided on behalf of the applicant details are provide about the subjects that the he would undertake and their proposed benefit. His statements appeared to have been constructed for the purpose of his student visa application and did not reflect his actual knowledge of his courses exhibited at the hearing, and as the hearing further transpired his actual circumstances. When the applicant was asked whether he had read and understood the submissions made on his behalf, he claimed to have read them but only understood a little bit. The Tribunal is not satisfied that much weight can be attributed to the agent’s submissions filed on the applicant’s behalf to the Tribunal and the Department. 

20. Finally the applicant claimed that business studies would help him to become a marketing manager when he returned to Malaysia. He was not able to articulate how this would happen or provide evidence of any employment prospects. He did not discuss any aspirations regarding running a company consistent with his agents submissions. In his evidence he was not able to demonstrate to the Tribunal an understanding of his courses, he was not able to discuss for the Tribunal in a meaningful way what he was learning or exhibit even a basic knowledge of the content of the courses he had undertaken. The applicant could not explain their relevance to his career in marketing. It is acknowledged that the applicant had provided evidence completion of one of his courses, and the Tribunal has also allowed for the fact that the applicant’s studies were interrupted by the closure of his first education provider. However, the Tribunal is not satisfied that he is engaging in the study, that he is studying for the reasons that he has claimed, or that he has demonstrated the value of the course for his future. Additionally, the applicant claimed at the hearing that he had difficulty talking about his courses as they were in English. His difficulty with understanding submissions on his behalf also arose because of his lack of English. The Tribunal noted that the applicant had not undertaken any English courses as part of his studies in Australia. The Tribunal questioned the genuineness applicant’s choice of enrolment in subjects in English in Australia at the hearing if this was a barrier to his participation and learning. 

21. When asked by the Tribunal why he could not undertake relevant study in his home country, the applicant claimed that he had been advised by his sister to get an education like her. In response to questions from the Tribunal the applicant revealed that his sister, who worked as a stewardess, only had a high school education, which was the same level as the applicant prior to applying for the visa. The Tribunal then explored with the applicant details of his family in Malaysia, noting that he had only provided information about his parents and younger brother in his application. The applicant revealed that he had two older sisters. He could not provide an explanation as to why their details had been omitted from his visa application. The applicant also revealed that his mother had died when he was a teenager. The Tribunal then asked the applicant why he had made submission to the Department and the Tribunal that he had an obligation to return to his home country to provide support for his parents, and the applicant was unable to explain these submissions. Once more the Tribunal was not satisfied that claims that had been made on the applicant’s behalf were reflective  of his actual circumstances. The applicant gave evidence that his father worked as a mechanic with his brother, his father had also remarried. While living in Malaysia the applicant claimed he had lived in Subang for the 15 years that he had been working at Vibes Hair Studio. He said that this was very far from his father, a distance of about 8 hours by bus. In response to questions from the Tribunal the applicant confirmed that he had not really been providing any care or support for his father in the past. While the Tribunal accepts that the applicant has family in Malaysia, on the evidence he is single and has been living apart from the rest of his family most of his working life. The Tribunal is not satisfied that these family ties would act as an incentive for him to return to his home country. Additionally, the applicant did not claim to have any evidence of his economic or financial ties to his home country.

22. It is accepted that he applicant does not have any military service commitments in his home country. The applicant also gave evidence that there are no incidents of political or civil unrest  that would cause him to seek to remain in Australia.

23. Other than advice from his sister and friends, the applicant has not provided a persuasive reason to the Tribunal for not undertaking study in his home country. The applicant claims that he had been passed over for promotion due to lack of education, yet despite working for the same business for 15 years he had not undertaken any study in his home country since leaving high school. When the Tribunal explored  with the applicant his former employer he provided details that it was a hair salon with 15 employees including himself. He did not claim to have skills in hairdressing but undertook marketing which involved ringing clients about promotions and products. Given the small nature of the business, and the applicant’s lack of hair dressing training, the Tribunal is not satisfied that his lack of marketing qualifications accounts for his inability to obtain promotion to a position of team leader, supervisor or manager. This supports concerns of the Tribunal  that the applicant is not genuine in his reasons for applying for the visa.

24. The applicant claimed to have researched study in Australia before he arrived on his visitor visa, and engaged services of an education agent. He claimed that he did not know anyone in Australia when he arrived. It was noted that the applicant had provided an address to the Tribunal for correspondence in Orange NSW. The applicant confirmed that he had been living in Orange when enrolled in his Certificate IV in Business, and until May 2017. The applicant claimed that he would travel by bus every day, around 7 hours return, to undertake his course. Having undertaken research and consulted education agents, the Tribunal had difficulty understanding why the applicant would live in Orange and then enrol in study in Sydney. In response to questions from the Tribunal, he claimed that he could not find any other courses of study close to Orange. The Tribunal does not accept this submission.  The Tribunal also queries his actual research into the quality of his course when it has transpired that his original education provider has had its registration cancelled and closed involuntarily. In answer to questions earlier in the hearing the applicant claimed that he had not worked at all while in Australia. He also made submissions to this effect in support of his application. Under further questioning during the course of the hearing the applicant revealed that he had been working fruit picking in Orange. This added to the Tribunal concerns that the applicant was not forthcoming about his actual circumstances in his submissions or his evidence and, the Tribunal finds that the applicant’s intentions to remain in Australia were motivated by factors other than study. The Tribunal is satisfied that the applicant’s actual circumstances in Australia may provide incentives for him to remain in Australia for purposes other than that of a genuine student.

1. As to the applicant’s immigration history, there is no evidence before the Tribunal that he has applied for a permanent visa or other visa to Australia or other countries or has an adverse immigration record.

2. In making the decision the Tribunal has considered all the evidence before it, including that he is currently enrolled, has previously obtained a certificate of completion of a course Australia, that he has family members in Malaysia, and all the other matters he has raised; however for the reasons outlined above does not accept he is undertaking the current study or future study for the reasons he claims, but rather using it as a pathway to remain in Australia.

3. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69 as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

4. Accordingly, the applicant does not meet cl.500.212(a).

5. 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

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

   Penelope Hunter
   Member