Yeoh (Migration)

[2019] AATA 372

Yeoh (Migration) [2019] AATA 372 (12 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wei Pin Yeoh

CASE NUMBER:  1717824

HOME AFFAIRS REFERENCE(S):           BCC2017/1108091

MEMBER:T. Quinn

DATE:12 February 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 12 February 2019 at 7:52pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant criteria – lack of detail of study or career plans – insufficient detail of ties to home country – decision under review affirmed

PRACTICE AND PROCEDURE – no response to Tribunal’s invitation – decision made on review

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359, 359C

Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

CASES

Hasran v MIAC [2010] FCAFC 40

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 (‘the Minister’) on 31 July 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 22 March 2017 (‘the application’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa (being a Subclass 500 (Student) 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 clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) because the applicant initially intended a four day stay in Australia and then decided to extend his stay onshore, and did not provide any specific intention or plan after his course completion. The delegate requested that the applicant provide further information, including:

   a.    details of employment to be sought by the applicant after course completion;

   b.    evidence of any sales jobs or marketing positions held by the applicant;

   c.    evidence of bank statements for the previous six months; and

   d.    evidence for claimed employment and how the applicant would support his stay in Australia.

   No such information was provided by the applicant.

4. Consequently, the delegate was not convinced that the applicant’s study in Australia would assist in improving the applicant’s prospects in his home country, Malaysia, in the future, or would be of a greater benefit than the work experience and qualifications the applicant already claims to hold.

5. On 29 June 2017, the delegate wrote to the applicant seeking the information outlined in subparagraphs 3(a)-(d) above.  The applicant did not provide this information and on 31 July 2017, the delegate refused to grant the applicant’s application for a Student (Temporary) (Class TU) visa.

6. On 13 August 2017, the applicant applied for a review of the delegate’s decision with this Tribunal.

7. On 30 November 2018, the Tribunal wrote to the applicant, however, the hyperlink in the correspondence was not operating correctly. The Tribunal therefore wrote to the applicant again on 3 December 2018, pursuant to section 359(2) of the Act, inviting him to provide information demonstrating he is:

   ·enrolled in a registered course of study; and

   ·a genuine applicant for entry and stay as a student.

8. This correspondence requested information in writing about the course(s) of study the applicant was undertaking and his entry and stay in Australia as a student. The invitation was sent to the last address provided in connection with the review (being the applicant’s application for review dated 13 August 2017) and advised that, if the information was not provided in writing by the prescribed date, being 17 December 2018, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act.

9. The review applicant did not provide the information within the prescribed period or otherwise and no extension of time was requested. Where a review applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action (section 359C(1) of the Act).

10. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the review applicant is not entitled to appear before the Tribunal. The effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

11. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

12. The Tribunal has proceeded to a decision having regard to all the information before it, including the information previously provided by the applicant to the Department but without taking further steps to obtain the additional information sought by the delegate and by this Tribunal under section 359(2) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

15. 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?

16. In considering whether the applicant satisfies clause 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 section 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.

17. 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.

18. The applicant in this case is a 30 year old male Malaysian national who first arrived in Australia on 28 December 2016 as a visitor for an intended stay of four days and has not departed.

19. Prior to coming to Australia, the application states the applicant completed secondary school at SMK Kampung Kastam and was employed for four years before his entry into Australia at Wei Kay Enterprise as a customer service officer.

20. On 22 March 2017, the applicant made the application which is presently the subject of review before the Tribunal.  On 22 March 2017, the applicant was granted a Bridging A (Class WA) (Subclass 010) Visa.

21. According to the delegate’s decision record and the application, the applicant’s application is to undertake the following courses of study in Australia:

    a.Certificate 3 in Spoken and Written English;

    b.Certificate 4 in Business Administration; and

    c.Diploma of Business Administration.

22. At the time of the application, it appears the applicant was enrolled in at least one of the courses listed in the immediately preceding paragraph.  The Tribunal has not been provided with any information as to whether the applicant continued with this or any other study after the application or the delegate’s decision.  The Tribunal therefore cannot conclude further in relation to the applicant’s academic progress in Australia.

23. In his undated genuine temporary entrant statement entitled ‘Dear Officer’ (received by the Department on 22 March 2017, Department file folio number 48), the applicant claims to want to focus on his English skills and ‘upgrade’ himself in business studies.  He makes general statements about wishing to improve his career prospects and refers to family members at home in Malaysia, stating he will return to Malaysia at the end of his studies.  Whilst the Tribunal appreciates that coming to Australia to study English might be appealing, the applicant’s statement does not provide sufficient detail, nor is there sufficient evidence before the Tribunal, to satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily. In making this comment, the Tribunal places weight on the way in which the applicant made the application (arriving on a tourist visa and only then applying for the student visa) and the lack of reasons provided by the applicant for not undertaking study in his home country.  It would appear to the Tribunal that if the applicant was a genuine student he would have applied for a student visa in the first instance, rather than arriving on a tourist visa and later applying for a student visa.  The Tribunal holds concerns that the visa is being sought primarily to maintain residence in Australia.

24. The Tribunal notes that the applicant has both parents, two sisters and a brother in Malaysia. The Tribunal accepts that the applicant’s family members in Malaysia may serve as an incentive for the applicant to return and places some weight on this in favour of the applicant.  However, the applicant has not provided sufficient detail in relation to his relationships with his family members (for example, how often he communicates with them while in Australia) and this means such weight is limited.

25. The Tribunal recognises the applicant’s history as a customer service officer in his home country and the fact that courses in English and business administration could potentially have some value to him in his future.  However, the Tribunal places little weight on this because it is not clear whether the applicant is, in fact, studying those courses and there is not adequate detail before the Tribunal in relation to the applicant’s employment intentions upon his return to Malaysia.

26. The Tribunal is concerned about the vagueness of the applicant’s evidence and is not satisfied that the applicant has sufficient knowledge of his intended course of study.

27. There is nothing before the Tribunal to indicate that the applicant has experienced visa refusal or immigration issues in any other country.

28. The Tribunal has not been provided with information regarding the following factors indicated by Direction 69: whether the applicant has sound reasons for not undertaking the study in Malaysia or that region, his specific economic circumstances, the applicant’s ties with Australia, any potential military service in Malaysia, political or civil unrest circumstances in Malaysia, remuneration the applicant could expect to receive in Malaysia or a third country compared with Australia, circumstances in Malaysia relative to Australia or any other country and the applicant’s circumstances in Malaysia relative to others in that country.

29. The Tribunal is troubled by the applicant’s failure to respond to requests for information from the Department and the Tribunal, as it considers someone genuinely intending to study temporarily in Australia would be forthcoming with evidence in support of such intentions.

30. 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 clause 500.212 and the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by clause 500.212.

31. 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. Therefore, the decision under review must be affirmed.

    DECISION

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

    T. Quinn
    Member