Tommi (Migration)

[2019] AATA 355

Tommi (Migration) [2019] AATA 355 (12 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tommi Tommi
Ms Helina Cin
Master James Raphael Bryant

CASE NUMBER:  1706272

HOME AFFAIRS REFERENCE(S):           BCC2016/2474352

MEMBER:Wendy Banfield

DATE:12 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 12 February 2019 at 7:40pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant criteria – career plans – set up businesses – obtain skills  in Australia – multiple course enrolments – discrepancies in business plans not acknowledged – 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 8 March 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 26 July 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 36 years old. He came to Australia in 2010 to undertake studies in Business. The secondary applicants are the wife and child of the primary applicant.

   Evidence submitted by the applicant

5. The applicant submitted the following evidence to the Tribunal:

   ·     Written submission by the representative dated 8 May 2018;

   ·     Indonesian bank statements;

   ·     Evidence of property and mortgage payments in Indonesia;

   ·     Identity documents for the applicant and secondary applicants;

   ·     Business Plan – TomJaya;

   ·     Evidence of the applicant’s studies in Indonesia and Australia;

   ·     The applicants travel records;

   ·     Evidence of the applicant’s employment in Australia;

   ·     Applicant’s resume.

6. The applicant had submitted evidence to the Department which included passport details for the primary and secondary applicant’s; medical evidence in relation to the applicant’s son; marriage and birth certificates; health insurance information and COEs for the applicant.

7. The applicants appeared before the Tribunal on 15 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

8. The applicants were assisted in relation to the review by their registered migration agent.

   The hearing

9. The applicant gave evidence that he came to Australia to study and acquire skills before returning to his home country to develop a business. He arrived in 2010 and began by studying a Certificate IV, Diploma and Advanced Diploma in Business Management. Prior to coming to Australia the applicant had worked in a retail store and as a debt collector. He had studied up to high school level in Indonesia.

10. Regarding his plans for the future, the applicant said he wanted to obtain business knowledge in order to open a retail hardware store. He had worked for seven years in a similar business selling construction supplies. The applicant said he decided to study in Australia because he needed to improve his English. This was because there were overseas clients which was a factor in his decision to study in Australia.

11. The applicant took further courses; Certificate IV, Diploma and Advanced Diploma in IT related subjects. The Tribunal asked why the applicant needed to study IT rather than employ people with expertise in future. He said he needed to be able to undertake that work himself in his future business. The applicant said he is currently studying a course in Marketing and Communications in order to improve his English. This was because there are English speaking customers in Indonesia. According to the applicant, he plans to return to his home country after his current course ends.

12. According to the applicant he is able to study in Australia because he had savings from before he arrived and his parents have assisted him. The applicant also works part-time at Flemington Markets. The applicant’s wife takes care of their son and according to the applicant’s evidence, does not work. The applicant stated he has parents and siblings in Indonesia and plans to return after completing his current course of study. He confirmed he had submitted a Business Plan to the Tribunal that was prepared during an earlier business course. The applicant said it outlined his future plans for a retail hardware store in Indonesia which he intends to start up himself. The applicant said he recently returned to Indonesia to investigate sites for such a business. He said he had wanted to go back to Indonesia two years earlier but due to the downturn in the Indonesian economy, he had delayed his return to his home country.

13. The applicant was invited to comment on the number of courses he had taken to date which indicated he had already completed sufficient studies to achieve his goals. The applicant said he would acquire a wide range of useful knowledge from the various courses he had studied. The applicant denied he had enrolled in further courses in order to extend his stay in Australia. He said he had spent time investigating sites for a business in Indonesia in the past but felt he needed to study Marketing before returning to put his plans into effect. The applicant added that he wanted his five year old son to also learn English in Australia.

14. The applicant was asked about his evidence to the Department that he planned to develop his own company assisting other people in e-commerce in future. The applicant said this was his plan, in addition to having his own business, but the economic situation in Indonesia has been problematic. He did not directly address the reason for the discrepancy in business plans. Regarding the cost of living and studying in Australia, the applicant said he was focussed on the benefits to him in furthering his education, rather than the cost of study. He added he would benefit from being able to open his own business in future. The applicant said he believed his visa was refused because he had taken short courses but he said this was the best way to meet his needs in future. He said a future business will utilise all his skills in business, IT and marketing.

15. In conclusion, the applicant said he fully intends to return to Indonesia, he has strong ties and his parents expect him to come back with his child. He only has one other brother and expects to receive an inheritance from his parents in future. The applicant stated his parents want the family to be together and to benefit from the culture in Indonesia.

16. The representative made the following submissions: the courses the applicant has taken are consistent with someone who plans to open their own business; the applicant’s seven years working in a similar business provided him with relevant connections; the applicant has $140,000 in savings to develop his business and has ongoing connections to Indonesia; the applicant worked part-time in a company in Australia progressing from a fruit picker to marketing. The representative suggested the Tribunal remit the applicant’s case with a recommendation to the Department for no further stay.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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 a genuine applicant for entry and stay as a student.

19. 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?

20. 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.

21. 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.

22. The Tribunal considered the applicant’s circumstances in his home country and in Australia. The secondary applicants are the wife and child of the primary applicant and are part of his family unit. The applicants were married in Australia, and their son who is five years old was born in Australia. The applicant has other family members in Indonesia and has returned to his home country at least five times since arriving in 2010. The applicant submitted evidence of Indonesian property in his name, mortgage payments and bank statements. The representative’s submission states the applicant and his wife are keen for their child to be raised in Indonesia and have the benefit of family relationships. Although the applicant’s wife and child are in Australia with him, the Tribunal places some weight on the applicants having established ongoing family ties to their home country.

23. The applicant’s evidence was that he completed high school in his home country and had worked in a retail hardware store and as a debt collector in Indonesia. In Australia, according to the applicant’s resume and written and oral submissions, he has worked part-time at Flemington Markets since his arrival in Australia in 2010. The representative’s submission states he is employed as a “sales and marketing representative” which has allowed him to use his business skills, as well as enhancing his abilities in customer service and English language.

24. The applicant submitted a genuine temporary entrant statement to the Department in support of his visa application and declared he intended to develop an e-commerce business in Indonesia after completing his studies. At the time he said his qualifications in business management, IT and marketing would allow him to help clients market their products and services, as well as being applicable to marketing and managing his own business. Conversely, in written submissions to the Tribunal and at the hearing the applicant declared he plans to open a retail hardware store targeting the construction industry in Indonesia. He submitted a business plan in this regard. The Tribunal notes the applicant did not include plans to start a hardware business at the time of the visa application. He also acknowledged during the hearing that his business plan for a hardware retail shop had been prepared as part of a previous business course. When asked about the discrepancy during the hearing, the applicant reiterated he was planning to have his own business but did not elaborate or provide a satisfactory explanation for the difference in his future plans. The Tribunal accepts the applicant has acquired business and IT qualifications as well as work experience in Australia that will be useful to him. However, his evidence regarding utilising his skills in future was contradictory and not persuasive. The Tribunal is not satisfied the applicant genuinely intends to pursue his stated plans for his career in his home country as claimed.

25. The Tribunal considered the relevance of the Marketing course the applicant is undertaking to his proposed future employment. The representative submitted it was consistent with a person who intends to open their own business. The applicant’s evidence to the Department was that Marketing would be useful to his e-commerce business but he told the Tribunal during the hearing that he was taking Marketing and Communications to improve his English. The applicant and his representative made submissions that the applicant worked in a retail hardware business for seven years in Indonesia and had made connections as a result; he has worked his way up to a marketing job in Australia and has a relatively large amount of savings to invest in a business. During his time in Australia, the applicant has completed three courses in Business and three in the field of IT. The Tribunal does not consider the applicant has demonstrated that it was or is necessary for him to study a course in Marketing given his qualifications and work experience to date.

26. The applicant’s immigration history indicates he has returned to Indonesia periodically during his stay in Australia. He gave evidence that during his visits, he investigated sites that were suitable to establish his business. However, the applicant also gave evidence he had considered returning to his home country at an earlier date, but did not do so because of the economic situation. During the hearing the applicant made further reference to remaining in Australia for economic reasons, when asked about having given evidence to the Department that he was planning a business in e-commerce. This evidence indicates the applicant has enrolled in further study in order to delay his return to Indonesia and not for necessary or genuine purposes.

27. During the hearing the representative advised the applicant wishes to complete his Marketing course before returning to Indonesia. It was suggested the Tribunal remit the decision to the Department with a recommendation to the Department that a no further stay condition be attached to the visa. The Tribunal considered the submission but for the reasons give above, the decision under review is to be affirmed. In addition, it is not the role of the Tribunal to make recommendations to the Department as to conditions that should be attached to a student visa.

28. 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).

29. 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.

30. 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.

    Member of Family Unit – Secondary visa applicant

31. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

32. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the secondary applicants are unable to meet the criteria because they are not members of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.500.212.

    DECISION

33. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Wendy Banfield
    Member