Utama (Migration)

[2020] AATA 3592

Utama (Migration) [2020] AATA 3592 (29 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ade Indra Utama

CASE NUMBER:  2001201

HOME AFFAIRS REFERENCE(S):          BCC2019/3520560

MEMBERs:Amanda Upton (Presiding)

Robert O’Neill

DATE:29 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 29 July 2020 at 1:20pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – reasons for not studying in home country – knowledge of proposed course – strong personal ties to Australia – value of course – immigration history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 Home Affairs on 9 January 2020 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 July 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 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 they did not consider the applicant to be a genuine temporary entrant for entry and stay in Australia as a student.

4. The applicant appeared before the Tribunal on 29 July 2020 to give evidence and present arguments.

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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 temporary entrant for entry and stay in Australia as a student.

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

8. 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?

9. 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.

10. 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.

Entry and Visa History

1. The applicant in this case is an Indonesian man who first arrived in Australia on 19 April 2019 (15 months) on a visitor visa – the applicant had come to Australia to visit his mother and applied for his student visa whilst onshore.

Time Onshore

1. The applicant has returned to his home country once since his arrival.

Study History

1. Prior to arriving in Australia, the applicant had completed secondary schooling in Indonesia. He has previous work experience as a restaurant manager and a field co-ordinator.

2. The applicant is currently completing a Certificate III in Commercial Cookery, he has a future enrolment in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management scheduled for completion in September 2021.

Evidence in Support of Application

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

   ·     Response to s359(2) request made by the Tribunal

   ·     Confirmation of enrolment – Certificate III in Commercial Cookery

   ·     Confirmation of enrolment – Certificate IV in Commercial Cookery

   ·     Confirmation of enrolment – Diploma of Hospitality Management

   ·     Enrolment confirmation letter

   ·     Evidence of health cover

2. The Tribunal has considered these documents and the evidence given by the applicant in reaching 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 considers that Australian has the best cookery course and that a certificate from his home country will not enable him to find a job.

   Personal ties to home country

   ·The applicant has two children who live with his ex-wife in Indonesia. He has not seen them since leaving Indonesia. In Indonesia he sees them on a weekly basis. The children are aged 5 and 4 and he speaks to them on a video call once a month

   ·The applicant does not have property of significant assets in Indonesia or Australia

   ·The applicant has only returned home once for a period of a month since his arrival although told the Tribunal that he had intended to return in April but was unable to do so due to the pandemic.

   Economic Circumstances in Australia as incentive not to return home

   ·The applicant has not yet worked in Australia.

   Military service or civil/political unrest concerns in home country

   ·The applicant raises no such concerns.

2. The Tribunal is unable to accept the applicant’s assertion about study in his home country as compared to study in Australia, it is a bare claim made without supporting evidence. The applicant has not provided any specific details establishing 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.

3. The Tribunal acknowledges that the applicant’s children live with their mother from whom he is now divorced, in Indonesia however on balance does not consider that these ties outweigh those that he has to Australia. The Tribunal acknowledges that when in Indonesia the applicant sees the children weekly however notes that that the applicant currently only speaks to them once a month by video.

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’s mother is a permanent resident in Australia. She has been here since around 2006. She is married to an Australian man. The applicant’s step brother lives in Australia with his parents.

   ·The applicant is living with his mother whilst in Australia.

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

   ·The applicant chose his course on the basis of information obtained from his agent that the provider is a good school and he considers that this is true.

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.

3. The applicant has travelled extensively to Australia throughout his life, including once previously for the purpose of study, and he has significant family ties, particularly as his mother is a permanent resident, married to an Australian man. The Tribunal is concerned that these ties constitute a significant incentive to remain in Australia.

4. The applicant told the Tribunal in response to this concern that he does not intend to stay as he has children in Indonesia and he needs to be near them. The Tribunal considers however, that bearing in mind the applicant’s ties to Australia as evidenced by his travel, that he has only monthly contact by video with his children, that they live with his ex-wife,  on balance that the applicant’s ties to Australia present as a significant incentive to remain.

5. The Tribunal gives significant weight to the fact that the applicant’s mother and her family in Australia, as residents as a factor that serves as a significant incentive for the applicant not to return to Indonesia.

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 proposed course of study is an academic progression from his secondary school study.

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

   ·The applicant told the Tribunal that he was working as a restaurant supervisor but is now interested in more cooking and that he loves to eat and cook. He told the Tribunal that he has done some research that if he has good qualifications then he will get paid $800-100 AUD for working in Bali and he also knows this as he has a friend who is a chef.

   ·The applicant intends to get a job in a restaurant on his return. He has not done anything specifically as yet in order to achieve this.

   Relevance of course to past study?

   ·The applicant has previously completed his secondary schooling

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

   ·The applicant considers that he can earn up to $1000 per month on return to Indonesia working in a restaurant. This claim is not referable to a specific job or supporting material.

2. Whilst the Tribunal accepts that the applicant has intention to complete his proposed study, it does not consider that the applicant has established that the course has value to his future in that it will improve employment or remuneration prospects. The Tribunal is unable to accept the applicant’s assertions as to the value of the course as he has not provided any detailed or compelling evidence as to his career plans or goals beyond that he would like to get a job in a restaurant.

3. The Tribunal is unable to conclude that the applicant’s course of study is of value in improving employment given the applicant’s previous experience working in a restaurant. The Tribunal notes that the applicant commenced but did not complete hospitality study in Australia but has since been employed as a restaurant manager nonetheless.

4. The Tribunal considers that the applicant’s primary purpose of study is not to progress academically but rather the study is a means for him to remain in Australia on a more permanent basis.

Immigration History

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

2. The Tribunal is troubled by the fact that the applicant arrived in Australia on a visitor visa and then changed his immigration intentions whilst onshore by applying for a student visa. Although the applicant told the Tribunal that the reason for this is that his mother told him that she would sponsor him to study, the Tribunal considers that the applicant has not provided a reasonable explanation for this. The Tribunal does not accept that such a change in intention would be made spontaneously particularly in circumstances where the applicant has previously been to Australia numerous times, has previously been the holder of a study visa and his mother lives in Australia permanently. The Tribunal considers that this conduct evidences an intention to use the student migration program to remain in Australia on a more permanent basis.

Any other relevant matters

1. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69:

   ·Any other relevant information provided by the applicant that may be either beneficial or unfavourable to the applicant.

2. The Tribunal considers that an applicant who is a genuine temporary entrant in Australia for the purpose of studying and to progress academically will be able to demonstrate circumstances that evidence a genuine intention to remain temporarily as a genuine student. The Tribunal acknowledges that these things will be different in each individual case and may change over time with respect to an individual applicant. The Tribunal considers that the applicant has failed to establish such circumstances and as such the Tribunal does not accept the applicant’s claim to be a genuine temporary entrant.

3. Considering the above individually and collectively, 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).

4. 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.

   DECISION

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

   Amanda Upton
   Member

   
   

   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.