Tjhun (Migration)

[2018] AATA 4780

Tjhun (Migration) [2018] AATA 4780 (16 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Natalia Christina Tjhun

CASE NUMBER:  1701568

HOME AFFAIRS REFERENCE(S):           BCC2016/2629203

MEMBER:Wendy Banfield

DATE:16 October 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 17 October 2018 at 1:06pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – change in courses – study course not linked to future career plans – 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 13 January 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 9 August 2016. 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 it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of Indonesia and is currently 26 years old. She came to Australia on 3 November 2011 as the holder of a Subclass 572 Student Visa. Since her arrival, the applicant has completed courses in English, Business and Accounting. The applicant also enrolled to study IT and Management but did not complete those courses. At the time of application, the applicant was enrolled and studying a Diploma of Accounting and had approval to study an Advanced Diploma.

5. The applicant appeared before the Tribunal on 10 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

6. The applicant submitted the following evidence to the Department in support of her visa application: statement of purpose, evidence of previous studies in Indonesia and Australia and a response to the Department’s questions regarding her visa application.

   Hearing

7. The applicant gave evidence that she came to Australia on 3 November 2011 as the holder of a Student Visa. She had intended to study Business but the course she began was moved.  According to the applicant she studied English and received a Certificate then began the Business course. The applicant said during that time her father became ill and she was very worried and considering going home. Her parents told her to stay and continue her studies; however, she failed the course.

8. The applicant said she then decided to move to IT but she took the ‘wrong’ course, did not like it and found it was too difficult. She said the teacher of the course was told to help her with her studies but it was not possible for the teacher to slow down as the other students were better than her. The applicant said she talked to the school and said she could not follow the IT course but they would not allow her to change to Business as she requested. She then moved to another college and completed a Certificate and Diploma of Business.

9. After completing her studies the applicant declared she plans to open an internet café which her mother has already prepared. The applicant was asked why she needs to study Accounting for her future plans and she said she needs to know how to manage the finances. The applicant’s evidence was that she would not trust others with financial matters and no one in her family has relevant experience.

10. The applicant’s mother supports her financially after her father died and provides all of her living expenses. She said she has only worked for three months in Australia but is not currently employed. The applicant does not have family in Australia; she said her mother and sister and brother continue to live in Indonesia. According to the applicant she had returned every year since arriving in Australia. She declared she has not applied for any other visas in Australia and she just wants to complete her studies in September 2019.

11. The applicant was asked why she needed to study Accounting to an Advanced Diploma level. She replied that she wanted the certificate. The Tribunal put it to the applicant that she would not need to study at that level in order to open a business as she described. The applicant said she has applied up to an Advanced Diploma level so she must finish it, also her mother wants her to. The applicant requested the grant of her student visa up to the end of her course and said she would go home after that.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is enrolled in an approved course of study.

14. 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?

15. 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.

16. 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.

17. The applicant gave evidence about her circumstances in her home country. She declared in her visa application that she has a sister and two brothers in Indonesia (Angela, Victor and Vincent), however in her written statement to the Department, the applicant said: “My family consists of my mother and my younger brother and myself… My father passed away many years ago and my mother lives alone at home. I cannot rely on my younger brother as he wants to pursue his career too.” It is not clear why the applicant has only referred to her younger brother in her written evidence. During the hearing the applicant said she has a sister and brother(s) in Indonesia. The Tribunal is not satisfied the applicant’s mother being alone is sufficient reason for her to return home, particularly since she has been away from her home country since 2011 and had planned to stay until the end of 2019.

18. The applicant declared she wants to return to Indonesia and open an internet café. She said she has spoken to friends about it and her mother will help her. The applicant claimed she wanted to study Accounting as well as Business courses because she wants to be able to manage the financial aspects of a business as well. The Tribunal understands the utility in having some financial knowledge in order to run a business but does not accept it is necessary to study up to an Advanced Diploma level for this purpose. The applicant has already studied Business from Certificate III to Diploma. During the hearing the applicant said she wanted to complete the Advanced Diploma because she has applied to study at that level and wants to finish it, also her mother would like her to. The Tribunal is not satisfied the applicant has demonstrated the value in committing her time and expense in order to study for an additional year.

19. The Tribunal has considered the applicant’s immigration history in Australia. She arrived in 2011 and completed an English course. The applicant has also completed vocational courses in Business and Accounting while in Australia. As noted by the Department, the applicant has not progressed significantly in her studies and has changed direction several times. The Tribunal accepts the applicant may have faced some difficulties to begin with, an changed the course of her studies as a result, however, this does not fully account for her lack of achievement from 2011 to 2014. The Tribunal considers the applicant has had ample time and opportunity to study courses appropriate to her future plans and is not persuaded she is continuing to study for genuine purposes.

20. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

21. 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.

22. 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

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

    Wendy Banfield
    Member