Yeong (Migration)

[2017] AATA 2599

Yeong (Migration) [2017] AATA 2599 (1 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Koon He Yeong

CASE NUMBER:  1614974

DIBP REFERENCE(S):  BCC2016/2316628

MEMBER:Adrienne Millbank

DATE:1 December 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 01 December 2017 at 11:34am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Previously completed courses in Australia – Currently enrolled in a course – Lack of course progression – No longer wishes to study in Australia – Intends to pursue an alternative career in the Ukraine

LEGISLATION
Migration Act 1958 ss 65, 359AA, 499
Migration Regulations 1994 Schedule 2 cl 500.212, 500.212(a)

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 on 30 August 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 9 July 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). The Delegate was not satisfied, on the evidence provided, that the applicant was a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 28 November 2017 to give evidence and present arguments. The applicant was assisted in relation to the review by their registered migration agent.

5. The Tribunal advised the applicant, pursuant to s.359AA of the Act, that it had information that would lead or would contribute to the decision under review being affirmed, namely a copy of his Provider Registration and International Student Management System (PRISMS) course enrolment and completion record. The Tribunal advised that this was relevant because it indicated a lack of course progression, which suggested he might have been enrolling in courses in order to prolong his stay in Australia. The Tribunal advised the applicant that it also had a copy of his international movement records. The Tribunal advised the applicant that it would be asking questions and raising concerns based on the information contained in these records and the concerns that it had, and that when it did he could seek an adjournment to consider his response, and consult with his agent.

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 intends genuinely to stay in Australia temporarily.

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 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. The applicant was born in Malaysia in 1995 and was granted his first Student (571 Schools Sector) visa on 10 March 2011. Since this time he has returned to Malaysia three times, for periods of about six weeks, in 2013, 2014 and 2016. He was granted his first Student (572 Vocational Education and Training Sector) visa on 27 March 2013.

12. The applicant’s PRISMS record shows 22 confirmations of enrolment, mostly at the Diploma or Certificate level. Thirteen of these enrolments are shown as ‘cancelled’. Seven are shown as ‘finished’. Course enrolments have included the following subjects and levels of study: Secondary Junior Years 8-10; Certificate lll in Employment and Training 15 July–15 November 2013 (finished); Certificate lV in Interactive Digital Media 28 January–6 June 2014 (finished); Diploma of Interactive Digital Media 7 July 2014–5 June 2015; and Diploma of Interactive Digital Media 1 February–10 June 2016 (cancelled and finished).

13. Relevantly to this review, the applicant’s course enrolments have also included: Certificate lll in Hospitality (Commercial Cookery) 28 January–14 November 2014 (cancelled); Diploma of Hospitality 7 July 2014–5 June 2015 (cancelled); and Diploma of Hospitality 27 January–13 November 2015 (cancelled).

14. Current confirmations of enrolment were provided for two courses: Certificate lV in Commercial Cookery 2 August 2016–12 January 2018 (studying); and Diploma of Hospitality 16 January–29 June 2018 (approved).

15. In his personal statement at the time of application the applicant stated that he chose to study in Australia because of its more advanced concepts of international hospitality. He stated further: ‘I have been Australia for several years I know the environment and cultural. I feel here is a safer place than other country and Brisbane is a very quiet, peaceful city, which I think would be a good environment for study. Also I can not only gain knowledge on specific academic area, but also have improvement on English ...’ The applicant stated that his courses would enable him ‘to do better on cookery and develop my future career in hospitality field’, and that he intended ‘to go back to Malaysia and find a job relate to commercial cookery and hospitality in a company or restaurant’.

16. To the Tribunal the applicant provided a letter dated 20 October 2017 from his father in Malaysia confirming continuing financial sponsorship. Evidence was attached of his father’s assets as a director and co-owner of the Glory Beach Resort in Port Dickson, Malaysia.  Provided also was a copy of a job offer letter, addressed to the applicant, dated 20 October 2017, from the Senior General Manager of the resort. The job of ‘chef de partie’ is offered to the applicant with an intended start date of 1 August 2018, subject to change ‘based on the submission of successful completion of your Diploma and degree’. The letter advises that ‘the terms and states of the employment offer will be given to you close to your completion of your diploma. If there are any changes in progress of the course please let us know so we can revise the offer letter for your notification. However this offer will be subject to review by the board of management closer to the joining date’.

17. In a written statement prepared for the Tribunal, signed on 23 October 2017, the applicant made the following claims:

    ·His intention has only ever been to gain skills and knowledge and work in his father’s international hotel business

    ·A Certificate IV in Commercial Cookery and a Diploma in Hospitality will enable him to work as a qualified international chef and an all-rounder

    ·His Digital Interactive Media (Gaming) Diploma would help him to remodel his father’s hotel, creating entertainment and gaming areas

    ·His cookery and hospitality courses will equip him to receive a handsome salary and a secure future for life in Malaysia

    ·His original intention was to pursue higher education in an English speaking nation but he was not a brilliant student and struggled with his coursework

    ·He followed his friends into the Gaming and Employment and Training courses, and received poor advice regarding course choices from an agent

    ·He has consulted with his family and decided to purposefully pursue cooking and hospitality

    ·He has studied continuously while in Australia and none of the courses he enrolled in were irrelevant to his envisaged future career in his father’s international resort hotel.

18. At hearing, the applicant advised that he no longer intended to pursue his studies in Australia. He stated that he has been attending his coursework and had reached his decision during the fortnight leading to the hearing. He stated that studying did not suit him, and that he has decided to pursue a career, initially on-line, as an entertainer. He provided evidence to the Tribunal that he has been awarded a Diploma in Interactive Digital Media and a Certificate lll in Employment and Training, but repeated that he did not enjoy studying and had decided not to continue with the courses he has enrolled in.  He confirmed that he does not want to become a cook and he does not want to work in his father’s business. He advised that he wants to go to Ukraine.

19. The applicant advised the Tribunal that had entered into a relationship, on-line, with a person in the Ukraine; that he intended to fly there in two weeks; and that he was going to advise his father in Malaysia of his intentions at the conclusion of the hearing. He stated that his career plans and personal circumstances were complicated, but, in brief, he intended in the short-term to develop his on-line entertainment business from Ukraine.

20. The Tribunal asked the applicant why he did not simply withdraw his application. The applicant stated that he hadn’t been sure what to do, but had decided that he wanted the Tribunal to proceed and to make a decision to affirm the decision under review.

21. The Tribunal has considered the circumstances and immigration history of the applicant, and the relevant information provided at hearing, namely, that the applicant does not intend to pursue his studies in Australia. 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.

    Adrienne Millbank
    Member