Wong (Migration)

[2018] AATA 2475

Wong (Migration) [2018] AATA 2475 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Seng Sum Wong

CASE NUMBER:  1616807

HOME AFFAIRS REFERENCE(S):           BCC2016/3135947

MEMBER:Wendy Banfield

DATE:5 June 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 05 June 2018 at 3:38pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – Offer of employment – No work experience in the area – 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 30 September 2016 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 September 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 the genuine temporary entrant criteria were not satisfied.

   Background

4. The applicant is a citizen of Malaysia and is currently 31 years old. He came to Australia on 24 June 2016 as the holder of an Electronic Travel Authority and applied for a student visa a few days before the visa was due to expire on 24 September that year. The applicant plans to study Certificate IV, Diploma and Advanced Diploma in Human Resources which will be completed on 12 January 2020.

5. The applicant appeared before the Tribunal on 8 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was assisted in relation to the review by his registered migration agent.

7. The applicant provided the following evidence to the Department and the Tribunal in support of his application:

   ·     Malaysian Certificate of Education in the name of the applicant dated 2004 (with English translation);

   ·     Confirmation of Health Cover for the period 21 September 2016 to 15 March 2020;

   ·      Written statement;

   ·     Certificates of Enrolment in Certificate IV, Diploma and Advanced Diploma of Human Resources;

   ·     Malaysian Certificate of Vehicle Registration in the name of the applicant;

   ·     Statements of Attainment for Units undertaken in Certificate IV in Human Resources;

   ·     Malaysian Title Deed for property in the applicant’s name;

   ·     Letter of offer from L & P Venture Enterprise to the applicant dated 1 June 2016.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 meets the criteria of a genuine temporary entrant for study.

10. 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?

11. 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.

12. 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.

13. The applicant provided evidence of his education in Malaysia but no independent evidence of work experience or any post-secondary studies. During the hearing the applicant claimed he had worked as a sales executive in a medium sized company of 20 to 30 people. He said he decided to study to improve his prospects of promotion and chose Human Resources because it is about managing people. The applicant said he came to Australia for a holiday but also to find out about the environment. He claimed it took him two months to make the decision to apply for a student visa and said he resigned from his employment while in Australia.

14. The applicant provided evidence of ongoing connections to Malaysia including assets in the form a property and a vehicle which the Tribunal places some weight on in his favour. He declared no family in Australia but still has siblings in Malaysia. The applicant stated his parents have passed away. The applicant claimed he would return to work for the same company in Malaysia that employed him in sales, after he completes his studies in Australia but in a Management role. In this regard the applicant provided a letter of offer allegedly from a company called L & P Enterprise for a position as Human Resource Supervisor. The letter specifically refers to the position being available to the applicant upon completion of an Advanced Diploma of Human Resource. Although the Tribunal accepts the applicant has some assets and family members in his home country, the Tribunal is not satisfied the applicant has a genuine offer of employment in future. The applicant provided no information about the company, the letter does not contain a logo or letterhead design (it is typed in the same font throughout) and the contact details for the writer consist of a mobile phone number and gmail account.

15. Importantly, the letter is dated 1 June 2016, before the applicant had commenced any studies in HR. It is not credible a company would offer a potential employee a Supervisory position before that person has commenced any study in the field. In addition, the applicant does not plan to return to Malaysia until he finishes an Advanced Diploma in January 2020, more than three years after the offer. The applicant has not demonstrated any work experience in the area of HR in Malaysia or Australia and the Tribunal does not accept the offer of future employment is legitimate.

16. The Tribunal found the applicant’s evidence about his reasons for studying and his future career plans to be vague and without detail. Since the applicant arrived on an ETA, the Tribunal is concerned he had the intention to study before he arrived and was not a genuine tourist. The Tribunal finds the applicant is using the student visa process to maintain residency in Australia and has not demonstrated sufficient incentive to return to Malaysia after his studies.

17. 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).

18. 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.

19. 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

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

    Wendy Banfield
    Member