Yen (Migration)

[2018] AATA 2993

Yen (Migration) [2018] AATA 2993 (3 July 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wai Kit Yen

CASE NUMBER:  1703747

Home Affairs REFERENCE(S):                BCC2016/3471625

MEMBER:Mark Bishop

DATE:3 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 03 July 2018 at 2:52pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant genuinely intends to stay in Australia temporarily – Lack of academic progress – Significant package of courses enrolled in shortly before expiration of previous visa – Limited incentives to return to home country – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a), Schedule 8, Condition 8115

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 14 February 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 19 October 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.500.212of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate concluded the applicant intended to extend his stay in Australia and did not genuinely intend to stay in Australia temporarily.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 genuine temporary entrant criterion.

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

6. 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?

7. 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.

8. 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.

9. The applicant provided a written statement to the Tribunal dated 24 April 2018 consenting to the Tribunal deciding the review without a hearing. The applicant provided a copy of the decision record to the Tribunal.-

10. The applicant provided a written statement to the Tribunal that outlined the following:

    ·The applicant completed high school in Malaysia in December 2007 and since that time until 2016 had worked in various semi-skilled occupations of driver, waiter and in  sales;

    ·He had been granted only one visa to enter Australia, a tourism visa in August 2016;

    ·Since arrival in Australia on  a tourism visa he had enrolled in a series of EAL courses and then Diploma level courses in Leadership and Management;

    ·He advised he had not returned to Malaysia since coming to Australia and had never applied for a visa to a country other than Australia. He had travelled to Singapore, Thailand and Hong Kong for holidays between 2011 and 2013. His annual living expenses in Australia were $23,670;

    ·He had immediate family in Malaysia.

11. The applicant provided a Certificate of Graduation in a Certificate III in EAL dated 9 April 2017 from St Peter Institute. The applicant provided a Statement of Attainment for completion of some subjects in a Certificate IV in EAL at the same institute in the period April 2017 until November 2017. The applicant did not provide a Certificate of Graduation in this course. The applicant did not provide any other Certificates of Graduation or Statements of Attainment for study in any other course. The applicant did not respond to a request for information as to whether he had a current Confirmation of Enrolment or letter of offer in a course of study. The applicant did not provide a receipt for payment of fees for enrolment in any course at Diploma level.

12. The applicant’s progress in his studies is poor. There appears to have been minimal progression. Graduation in one only English course in a period of almost 2 years is hardly evidenced of academic achievement or course progress.

13. The applicant did not provide any other information to the Tribunal.

14. The applicant’s bridging visa has condition 8115 attached. This condition provides that the applicant must not work in Australia other than by engaging in a business activity.

15. The Tribunal has regard to Ministerial Direction Number 69 (Direction 69).

16. The applicant’s immigration history as outlined in the decision record records his initial arrival in Australia on an ETA visitor visa subclause UD-601 granted offshore on 11 August 2016. The applicant arrived in Australia on 12 August 2016. The applicant continued his residency stay and applied for a student visa subclass TU-500 24 days prior to the expiry of his visa on 19 October 2016 and applied for enrolment in a package of courses that would take his period of study until 8 December 2019.

17. The Tribunal is not satisfied that a person travelling as a tourist would make such a significant change from their initial intentions to visit for tourism. The Tribunal considers the stated intent in this application would have included a greater level of planning and preparation before arriving in Australia. It therefore appears that the applicant has enrolled for this course for the purposes of the visa application only in order to secure a student visa rather than due to a genuine interest in this area of study and overall academic progress.

18. The Tribunal has considered the applicant’s circumstances in his home country. He is a single man and does not have dependent family members in Malaysia. The Tribunal acknowledges the applicant currently has personal ties in Malaysia in the form of his immediate family. The Tribunal is of the view these ties do not, of themselves, constitute a strong incentive to return home. The applicant has not provided evidence of financial assets in his name in Malaysia. The applicant has not provided evidence of personal or economic ties to his home country, which diminishes his incentive to return upon completion of his studies. The Tribunal is not satisfied the applicant has been able to demonstrate ties that would serve as a significant incentive to return to his home country.

19. The applicant has advised he has not worked in Australia and the Tribunal notes the applicant is not permitted to work in Australia as outlined above in paragraph 14. The applicant also stated he had sufficient funds to support his stay and study in Australia. Therefore the Tribunal is inclined to the view the purpose of the applicant’s travel to Australia was not for holiday and the applicant had worked out his plan to extend his stay in Australia beyond his holiday period. If the applicant’s intent was to study in Australia he could have applied for a student visa offshore fulfilling all the necessary requirements to grant a student visa.

    DECISION

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

    Mark Bishop
    Member