YEW (Migration)

[2018] AATA 5097

YEW (Migration) [2018] AATA 5097 (4 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHAING KEAN YEW

CASE NUMBER:  1700599

HOME AFFAIRS REFERENCE(S):           BCC2016/3041519

MEMBER:Wendy Banfield

DATE:4 September 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 04 September 2018 at 5:13pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa –genuine temporary entrant criterion – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 11 January 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 13 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 it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of Malaysia aged 22 who came to Australia on 30 June 2016 as the holder of a Subclass 601 visitor visa. After his arrival the applicant applied for a Student Visa with the intention of studying Accounting. At the time of the hearing the applicant had completed a Certificate IV in Accounting and was studying a Diploma, with approval to undertake an Advanced Diploma.

5. The applicant appeared before the Tribunal on 6 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

   The hearing

7. The applicant first arrived in Australia in 2015 with the intention of staying only a few days. He said he returned home and continued his studies but was depressed because he failed two of his subjects. A cousin in Australia suggested he come for a visit which he did in June 2016 and he met up with other international students. The applicant said because he is good at figures, it was suggested he study Business. At first he thought about Accounting but his parents suggested he take Engineering. While in Australia his parents agreed that he could study Accounting.  His friends introduced him to an education consultant and they began planning for him to study.

8. The applicant said he has completed a Certificate IV in Accounting and continued with a Diploma. The Tribunal asked about his degree in Malaysia and he said he can still complete it if he passes two subjects. He said he plans to take an Advanced Diploma in Accounting and will then return home. The applicant said he shares accommodation with a roommate. The only family he has in Australia is a cousin while in Malaysia he has parents and two sisters. According to the applicant he will return home after studying as his family has supported him in the past and he needs to look after them.

9. The Tribunal asked the applicant to comment on the fact that he came to Australia as a visitor for a short time but then made the decision to stay and study for a significantly longer period. He said his initial intention was to visit but after he arrived, he was told a Diploma from Australia has good standing internationally and was less stressful to study here.  Due to his strong reliance on the interpreter, the applicant was asked how he is able to study successfully in English. He said his reading and writing is quite good and he is working on his listening skills.  He said he hopes he is given a chance to continue his studies so he can complete an Advanced Diploma by the end of 2019.

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

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 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 gave evidence about his circumstances in his home country. Prior to travelling to Australia as a visitor at the suggestion of a cousin; the applicant said he had been studying a Diploma in Technology (Mechanical and Manufacturing Engineering) for which he provided documentary evidence. According to a Certificate from the institution in Kuala Lumpur, the applicant completed six semesters of his course from May 2014 to May 2016 and was required to complete two courses in order to graduate. In a written statement dated 24 February 2018 the applicant stated that prior to studying for a Diploma, he had completed high school in Malaysia in 2013. The applicant’s parents and two sisters continue to reside in his home country. The Tribunal accepts that the applicant has some ongoing personal ties to Malaysia due to his parents and sisters living there, however, this is not considered to be a strong incentive for him to return after his studies. In addition, the applicant claimed in a written statement to the Department dated 17 November 2016 that after finishing school in Malaysia, he did not receive any formal education and was only able to find casual or part-time jobs due to low qualification. This contradicts the applicant’s later evidence that after school he studied a Diploma course for two years and was doing so until shortly before he travelled to Australia in 2016.

16. In Australia the applicant has completed a Certificate IV in Accounting and is studying a Diploma of Accounting with an intention to also complete an Advanced Diploma. The Tribunal places some weight in the applicant’s favour on him having maintained enrolment and completed a Certificate course since his arrival. The Tribunal notes however that the applicant came to Australia as a short-term visitor and then decided to apply to study for approximately three years. The Tribunal considers it likely such arrangements would require a greater level of planning and coordination and is not satisfied the applicant only decided to study once he arrived in Australia and talked to other international students. Although the applicant claimed he did not like the Diploma course he was taking in Malaysia and was depressed about his future; it is not clear why he would abandon a course he had nearly completed to study in Australia at a lower level at significant cost and inconvenience. Although the applicant said a qualification from Australia has more value, he did not explain satisfactorily how his studies in Australia would benefit him in future.

17. The applicant provided a letter to the Department dated 11 November 2016 that he claimed was a job offer for an Accountant position on the completion of his studies. As was stated by the Department in its decision record of 23 December 2016, it is unlikely an employer would make an offer of employment to a person without the requisite qualifications three years into the future.  Again as noted by the delegate, the letter is in English, lacks a company letterhead and contains spelling errors. For these reasons the Tribunal does not accept the letter is a genuine offer of employment.

18. 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).

19. 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.

20. 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

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

    Wendy Banfield
    Member