Tjhang (Migration)

[2021] AATA 234

Tjhang (Migration) [2021] AATA 234 (2 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Christanto Chandra Tjhang

CASE NUMBER:  1910109

HOME AFFAIRS REFERENCE(S):          BCC20191062334

MEMBER:Robert O’Neill

DATE:2 February 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 02 February 2021 at 2:52pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – incentives to remain or return – visa, travel, study and work history – many low-level, inexpensive courses in different subject areas and a number of jobs in Australia – no real work history in home country – uncertain job offer in home country – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2)

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 17 April 2019 to refuse to grant the visa applicant Christanto Chandra Tjhang (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 4 March 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 visa application was refused by the delegate 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 did not consider him to be a genuine temporary entrant for entry and stay in Australia as a student.

4. The applicant appeared before the Tribunal on 5 November 2020 to give evidence and present his arguments. The hearing was conducted by telephone.

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

   EVIDENCE AND FINDINGS

Evidence in support of Application

1. In support of his application, the applicant has relevantly provided:

   ·Response to s.359(2) request made by the Tribunal (Form M17) filed 5 May 2020

   ·Documentation from Pacific College of Technology confirming enrolment in Diploma of Marketing and Communication

   ·Student identification card

   ·Academic transcripts, including for the current course

   ·Offer of employment as “Front Manager” dated 18 January 2019

   ·An untranslated formal document which is said to be the licence of the family convenience store

   ·Passport of Lim Mia The (the applicant’s brother in law’s mother)

2. The Tribunal has considered these documents and the evidence given by the applicant in reaching its decision.

3. 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 an applicant. The issue in the present case is whether the applicant is a genuine temporary entrant for entry and stay in Australia as a student.

   Enrolment (cl.500.211)

4. The applicant has a current Certificate of Enrolment and confirmed in oral evidence that he is currently enrolled in a Diploma of Marketing and Communication at Pacific College of Technology. The Tribunal is satisfied that he meets the criteria in cl.500.211.

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

5. 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?

6. 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.

7. 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.

8. The Tribunal has considered all of these matters and sets out below the matters which it considers materially relevant in relation to them.

Entry and visa history

1. The applicant in this case is a 30-year-old man from Indonesia who first arrived in Australia on 9 November 2008 on a student visa.

Time onshore

1. The applicant has remained in Australia since that time, other than five visits home, each lasting a month or less.

Study History

1. Prior to arriving in Australia, the applicant had completed high school in Indonesia.

2. Since his arrival in Australia the applicant has been enrolled in the following courses:

Institution	Course Name	Enrolment Date	Status	Start Date	End date
Lloyd’s International School	General English	11/2008	Completed	11/2008	12/2008
Lloyd’s International School	Diploma of Business	1/2009	Completed	1/2009	1/2010
Kent Institute	Diploma of Information Technology	3/2010	Completed	3/2010	12/2011
Academia Australasia	Diploma of Tourism	2/2012	Completed	2/2012	8/2013
Windsor Institute of Commerce	Diploma of Systems analysis and Design	09/2013	Copmleted	09/2013	09/2014
WELLS International College	Advanced Diploma of Information Technology Business Analysis	09/2014	Completed	09/2014	09/2015
Bridge Business College	Certificate IV in Human Resources	11/2015	Completed	11/2015	06/2016
Bridge Business College	Diploma of Human Resources Management	06/2016	Completed	06/2016	04/2017
Bridge Business College	Advanced Diploma of Management (Human Resources)	04/2017	Completed	04/2017	10/2018
Pacific College of Technology	Certificate IV in Marketing and Communication	02/2019	Completed	02/2019	02/2020
Pacific College of Technology	Diploma of Marketing and Communication	02/2020	Completed	02/2020	08/2021

1. If the applicant completes his current course on time, that would result in the applicant’s having resided in Australia for a period of more than 12.5 years.

Relevant Considerations

1. Set out below are a number of considerations raised by the applicant or arising on the material. The considerations raised are conveniently considered under headings derived from the factors set out in Direction No 69, keeping in mind that those factors are not a checklist and the ultimate question remains that set by clause 500.212. The Tribunal has considered all the submissions of the applicant but has set out only those it considers most relevant to its decision.

Applicant’s circumstances in their home country

1. The Tribunal has had regard to the applicant’s circumstances in Indonesia as follows:

Reasons for not studying in home country

·The applicant’s stated reasons were:

In my country, there are universities that offer Marketing and Communication course. However, these cannot completely fulfill my intention because I really concern about my English skills and worldwide-accepted qualification. I need to improve English Ability for all skills, including speaking, listening, writing and reading. English Language is very
important in employment in my country; for example, most of International or well-known companies in Indonesia, they use English as an official language. Therefore, there are many differences between studying in Indonesia and Native English Speaker country like Australia. Moreover, Australian environment surrounding me, which can push me to eager and fast adapted with other Native speakers. Secondly, studying in Australia push me to study by independent, so this can improve my thinking process and decision- making process. Finally, studying in Australia, I will gain a lot of great experiences. I am hoping to receive positive response that I have a chance to complete my current course before going back to my home country

·The Tribunal accepts that these might be good reasons for coming to Australia to study in the first place. However, they do not adequately address why the current course could not be done in Indonesia, 12 years after the applicant first came.

Personal ties to home country

·The applicants parents, and some of his brothers, live in Indonesia.

·He did not rely on any other personal ties to Indonesia.

Economic circumstances as incentive not to return home

·Having not lived in Indonesia for over 12 years, the applicant does not have a significant employment history there.

·The applicant did not claim to have any assets in Indonesia.

·The applicant produced a letter, dated January 2019, offering him a job as a Front Office Manager with a family business, to begin in August 2021.

·The Tribunal gives this letter little weight as:

a.The offer is for a time 2.5 years after the date of the letter, suggesting it is not an arm’s length job offer;

b.The business is a single convenience store with 2-3 employees (albeit that there are plans to expand).

c.The offer does not state that it is dependent on the applicant completing any qualification.

Military service or civil/political unrest concerns in home country

·The applicant raises no such concerns.

·The Tribunal is not aware of any particular circumstances in  Indonesia which would give rise to an additional inducement for the applicant to apply for a student visa in Australia.

Applicant’s potential circumstances in Australia

1. The Tribunal has had regard to the applicant’s potential circumstances in Australia, based on the evidence provided at the hearing, as follows:

Applicant’s ties with Australia

·The applicant has siblings living in Australia. His oldest brother provides him with financial support to live in Australia.

·Having lived in Australia for more than 12 years, the applicant is accustomed to the Australian way of life.

·The applicant has worked in a number of different jobs in Australia.

Evidence visa program being used to circumvent the migration program

·The sheer length of time spent by the applicant in Australia pursuing a series of low-level, relatively inexpensive courses suggests an intention to remain in Australia for as long as possible.

Applicant’s knowledge of living in Australia, their intended course and level of research into their intended course

1. The applicant provided the Tribunal with information generally about the education provider he has chosen. It is in the nature of promotional material and does not relate to the applicant’s course or his situation specifically.

2. The Tribunal is unable to conclude that the applicant has undertaken any genuine research into his proposed course, course content, education provider or educational objectives as would be expected of a genuine student, based on the information set out above.

3. While the information was general, given he has now lived in Australia for over twelve years and is conducting his eleventh course, the Tribunal accepts that he is familiar with Australia, the course and the institution. However, the Tribunal gives this matter little weight in circumstances where for other reasons the Tribunal does not accept that the course of study has significant value for the applicant.

Value of the course to the applicant’s future

1. The Tribunal has had regard to the value of the course/s of study to the applicant’s future as follows:

Is the course consistent with the applicant’s current level of education?

·The applicant’s current course is at the same level as previous courses he has undertaken, and does not represent an elevation in his educational level.

Will the course assist the applicant to obtain employment or improve employment prospects?

·The applicant has an existing job offer. There is no evidence that the course will assist him to obtain that job. The Tribunal considers that in the light of his many existing qualifications, the current course does not enhance his employability.

Expected remuneration using qualifications in home country compared to what is receivable in Australia

·The applicant told the Tribunal that he considers that will be able to obtain a salary of approximately $12,000AUD on his return to Indonesia..

·There is no evidence that this salary is dependent on obtaining his current qualification.

·The applicant has a sold work history in Australia of earning significantly more than this. However, the tribunal accepts that the costs of living is much lower in Indonesia and does not give this matter significant weight.

·     The Tribunal finds that the applicant has some economic incentive to remain in Australia due to his past and current working history in Australia particularly considering the applicant has no real work history in Indonesia.

Immigration History

1. The Tribunal has had regard to the applicant’s immigration history. There is no evidence of other visa refusals or cancellations. That is a matter in the applicant’s favour.

Any other relevant matters

1. The Tribunal did not consider any other matter raised by the applicant to be significant to the application for review.

Consideration

1. Based on his evidence that he has no assets there, and his work history in Australia, the Tribunal does not consider that the applicant has strong economic or financial ties that constitute an incentive to return to his home country.

2. The Tribunal accepts that the applicant has family ties to Indonesia and that those ties potentially present as an incentive to return, in particular his parents. The Tribunal considers however that the applicant has only returned home five times in 12 years, and has family in Australia.  The Tribunal considers this a significant indicator that his family ties are not a strong incentive to return home.

3. In weighing up the considerations which the Tribunal must consider pursuant to the Schedule and Direction No. 69, the Tribunal has given particular weight to the following matters in the applicant’s favour:

   ·his family ties to Indonesia

   ·his good study record;

   ·his job offer in Indonesia

   ·his immigration history, in that he has not breached visa conditions.

   However, the following matters in particular outweigh those matters and indicate to the Tribunal that the applicant does not genuinely intend to remain in Australia temporarily:

   ·the lack of apparent value of his course

   ·The extraordinary length of time the applicant has spent in Australia studying vocational courses;

   ·The applicant’s employment history in Australia and family ties and support here.

4. The Tribunal raised each of these matters with the applicant and gave him the opportunity to respond. The Tribunal did not find his responses persuasive.

5. The applicant has not provided any specific details establishing the benefits to be gained by studying the proposed course in Australia as opposed to studying in his home country considering the financial outlay required to study in Australia. The applicant’s assertions as to the value of the course for his employment prospects were vague and unconvincing.

6. Considering the above individually and collectively, the Tribunal is not satisfied that the applicant genuinely intends to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

7. 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

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

   Robert O’Neill
   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.