Wong (Migration)

[2019] AATA 1438

Wong (Migration) [2019] AATA 1438 (29 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gim Ying Wong

CASE NUMBER:  1721994

HOME AFFAIRS REFERENCE(S):           BCC2017/2604750

MEMBER:Peter Booth

DATE:29 April 2019

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 April 2019 at 5:04pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not entitled to appear before the Tribunal – genuine temporary entrant – immigration history – use of student visa program – enrolment status – not enrolled in a registered course – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 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 30 August 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 21 July 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 applicant was not a genuine temporary entrant.

4. On 18 February 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the decision to refuse to grant a Student (Temporary) (class TU) visa in writing.  The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 4 March 2019 the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to given evidence and present arguments.

5. By email dated 23 February 2019 the applicant’s migration agent provided a Confirmation of Enrolment but did not otherwise provide any information pursuant to the invitation dated 18 February 2019.  By email dated 8 April 2019, the agent informed the Tribunal that the applicant would not attend the hearing and would like the Tribunal to determine the matter on the available information.  The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s. 360(3), the review applicant is no longer entitled to appear before it.  This matter has therefore been determined on the evidence available to the Tribunal.

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.

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.

11. Save for the Confirmation of Enrolment and the decision of the department dated 30 August 2017, the applicant has not provided any further information in support of his application.  The Confirmation of Enrolment states that the applicant was enrolled in a Diploma of Leadership and Management from 1 December 2018 to 30 November 2019.

12. Accordingly, the Tribunal has had regard to the findings of fact in the department’s decision dated 30 August 2017.  They are as follows.  The applicant arrived on 24 April 2017 pursuant to a Visitor FA-600 visa valid until 24 July 2017.  An application was filed for a student visa (TU500).  This new visa, if granted, would have extended the applicant’s stay until 30 November 2019. 

13. In his application for a student visa, the applicant, amongst other things, stated that his father lived in Malaysia, and that it was the applicant’s intention to study English followed by a Diploma in Leadership and Management in Australia.  This was stated to “significantly improve my future career development” and that he wished to ‘set up my own business in Malaysia when I return to the country’. The applicant also stated that he had completed Year 12 in Malaysia.  He also stated that his family had a restaurant business.  Information regarding the applicant’s circumstances in Malaysia is limited. 

14. The applicant’s father lives in Malaysia, and his family conducts a restaurant business.  The Tribunal accepts that he has family and economic ties to Malaysia.  There was no evidence regarding the economic circumstances of the applicant but the Tribunal notes the economic disparity between Malaysia and Australia.  There was no evidence as to military commitments or political or civil unrest in Malaysia.

15. There was no evidence regarding any ties which the applicant may have to Australia.  However the conduct of the applicant in arriving on a student visa and then applying for a vocational student visa suggest strongly that the student visa program is being used to circumvent the intention of the migration program.

16. There was little evidence other than broad general assertions by the applicant regarding the value of the courses to the applicant.  There was no evidence regarding the comparative remuneration which he might expect in Malaysia and Australia.

17. The Tribunal also notes that there is no evidence that the applicant is currently enrolled in a course of study.  Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study.  Accordingly, there being no evidence that the applicant is currently enrolled; the Tribunal is not satisfied that at the time of the decision, the applicant is enrolled in such a course.  The applicant does not meet clause 500.211.

18. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for a further stay as full-time student.  It appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia rather than due to a genuine interest in this area of study. 

19. The Tribunal has also given regard as to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily.  The Tribunal has considered all information provided by the applicant in support of the applicant’s application. 

20. On balance the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in the applicant’s home country, potential circumstances in Australia, the value of the proposed course to the applicant’s future, the applicant’s immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

21. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa rather than a view to a genuine interest in study and overall academic progress.  The applicant appears to be using the student visa program as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.

22. 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).

23. 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.

24. 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

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

    Peter Booth
    Member