Woon (Migration)

[2019] AATA 2893

Woon (Migration) [2019] AATA 2893 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kah Wai Woon

CASE NUMBER:  1710897

HOME AFFAIRS REFERENCE(S):           BCC2017/1202751

MEMBER:Wendy Banfield

DATE:11 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 June 2019 at 11:27am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – relevance of studies to family business – immigration history – evidence generic and lacking in detail – 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 15 May 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 29 March 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.

   Background

3. The applicant is a citizen of Malaysia and is currently 33 years old. He arrived in Australia on 23 February 2017 as the holder of a Visitor Visa and declared an intention to stay for a six day holiday. The applicant remained onshore for a longer period and after approximately five weeks he applied for a Student Visa which is the subject of this review. Prior to travelling to Australia the applicant declared he had completed high school and was employed in his family’s durian plantation from 2005 to 2016.

4. 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.

5. The applicant appeared before the Tribunal on 28 August 2019 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 their registered migration agent.

   Evidence of the visa applicant

7. The applicant gave evidence in written statements and at the Tribunal hearing. The applicant declared that prior to coming to Australia to visit; he had carried out research and consulted education agents about studying in Australia. He claimed he found useful information but wanted to experience life in Australia for himself first. He did not deny he had stated an intention to visit for six days but said after talking to agents in Australia, he decided to save time and apply for a Student Visa onshore. At the time of the hearing the applicant had completed an English course and was enrolled in a Diploma of Leadership and Management. He has approval to study an Advanced Diploma of Leadership and Management.

8. The applicant provided reasons for wanting to further his education in Australia. In the written submission dated 21 August 2018 the applicant claimed that studying overseas would be beneficial to him in managing the family business and will help him to be successful. The applicant briefly explained the nature of the business in Malaysia which is durian production. He also set out the business subjects he is studying and claimed they relate to the industry.

9. The applicant declared he had no intentions in Australia other than completing his studies. Regarding the Department’s reasons for refusing the application, including the family business in Malaysia being successful already, the applicant stated that in order to expand, they need to export overseas and it is important for him to obtain overseas experience. He said his father is able to manage the business before retiring. According to the applicant, because of his age and qualifications there is no option for him to remain in Australia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 as required for the grant of a Student Visa.

12. 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?

13. 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.

14. 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.

15. The applicant’s circumstances in his home country are that he has family members and a business in Malaysia. He had previously worked in the family business for 11 years since completing secondary school. The Tribunal accepts the applicant has some ongoing ties to his home country. The applicant claims he will take over the family business in future but based on the evidence; it is able to operate in his absence, including for a period of at least 3 and a half years during his planned stay in Australia. According to his evidence at the hearing, the applicant has siblings who also work in the business. Other than written declarations, there is no independent evidence before the Tribunal to indicate the applicant is integral to the success of the business such as the nature of his previous role and the level of his contribution. Therefore the Tribunal places limited weight in the applicant’s favour when assessing his circumstances in his home country.

16. The applicant is currently studying a Diploma of Leadership and Management. He advised he is not working and is supported by his father through the family business. He declared his father wants him to obtain foreign knowledge and skills and expand the business multi-nationally in future. According to the applicant he could study in Malaysia but it would only be local knowledge and he wanted to gain experience in Australia. During the hearing the applicant was asked about his current studies in Leadership and Management and why he had changed from Business courses. He said this was because the education provider was taken over, but did not explain why it would be useful for him to study Leadership and management rather than Business. The Tribunal accepts the applicant has enrolled in a course of study but is not satisfied it is for genuine purposes of expanding a family business in Malaysia internationally.

17. The Tribunal considered the value of the courses the applicant is studying to his future. According to his evidence, the applicant had been working in the family fruit production business for 11 years. The photographic evidence as well as written and oral submissions indicates it is a fully functioning, successful enterprise. The applicant claims that in future he will take over the family business and expand it overseas. In his written statement of 21 August 2018 it states in part:

    To fulfil my dream career, this further study is important and without proper knowledge about business, I will not able to fulfil my dream. This overseas life experience will definitely help me to have a better prospect in my business planning as I am able to experience the culture in Australia. This study experience is invaluable, and I will never able to gain if I choose to study in my home country. The benefits that I will gain after this study experience is hard to measure solely by monetary form, however, it will definitely be one of most important factors of my success in the future…

    As my future plan is to take over the family business and expand the business to overseas, it is important for me to have the knowledge regarding business as well as leadership and management. Since my family business is about the durian plantation, the knowledge I should be equipped is not only about planting the goods but also exporting them to overseas to expand the trade. Our family business is currently on a good track because of the local advantages as the weather and other factors which can affect the growth of the plantation. Nevertheless, the industry is growing rapidly in Malaysia in recent years, we can’t stay on the same position for years without development, otherwise, we will be replaced by similar local trades sooner or later.

18. The Tribunal found the applicant’s explanation of his reasons for choosing to study the courses he has enrolled in to be generic and lacking in detail. The applicant has extensive practical experience in the industry of over a decade and it is not credible he has to spend time and money studying courses in Leadership and Management in Australia in order to manage it successfully. If the applicant was indeed interested in studying in order to expand his business into overseas markets, he could have taken relevant courses such as international trade or international business. The units listed by the applicant that comprise his Diploma of Leadership and Management do not appear relevant in this respect. The Tribunal places no weight in favour of the applicant in assessing this factor of the genuine temporary entrant criteria.

19. The applicant’s immigration history includes both his visa and travel history. The applicant came to Australia holding a Visitor Visa allowing him to stay for three months. At the time of the hearing he had not departed since he arrived in February 2017. According to the Department and confirmed by the applicant, on arrival he declared he was travelling for six days for a holiday. However, he changed his plans and remained on-shore for approximately five weeks before applying for a Student Visa without going back to Malaysia. Although the applicant claims in his written statement he was a genuine tourist when he arrived, he also stated he had researched study options, consulted with an education agent and obtained his family’s agreement to investigate studying in Australia prior to leaving Malaysia. This indicates he was in fact travelling to Australia with a plan to study here at some stage and his main purpose was not tourism. The Tribunal places some weight on the applicant being currently enrolled and studying but is not satisfied he has been entirely honest in declaring his reasons for coming to Australia. He claimed that having arrived in Australia he decided to save time and money by applying to study on-shore. However, changing from a short term visit of six days to studying for an extended period of three and half years would take planning and it is more likely this was the applicant’s aim from the outset. On balance the Tribunal finds the applicant’s immigration history weighs against him.

    Conclusion

20. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant in deciding whether the genuine temporary entrant criteria is met. 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

    
    

    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.