Yu (Migration)

[2019] AATA 2259

Yu (Migration) [2019] AATA 2259 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lap Kit Yu

CASE NUMBER:  1720254

HOME AFFAIRS REFERENCE(S):           BCC2017/1831838

MEMBER:D. Triaca

DATE:8 May 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 08 May 2019 at 11:53am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant criterion not met– maintain ongoing residence–decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359,,363A, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218
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 on 14 August 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 23 May 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.

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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. On 14 August 2017, the delegate refused the applicant’s application for a student visa. On 1 September 2017, the applicant applied to the Tribunal for a review of the delegate’s decision. At the time of his application, the applicant provided the Tribunal with a copy of the delegate’s decision.

5. The Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal on 1 February 2019. The invitation advised that, if the information was not provided in writing by the prescribed period, being 1 February 2019, 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 applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal has received no response to this invitation.

6. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being the address provided by the applicant in connection with this application for review.

7. Where an 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 to obtain the information: Section 359C(1).

8. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: Section 360(3). Crucially, the effect of section 363A of the Act is that a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MICA [2010] FCAFC 40.

9. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

10. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. 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?

14. 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.

15. 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.

16. The Tribunal has read and had regard to the documentation provided by the applicant to the Department. This includes his Application for a Student Visa and record of responses (df 1-18), GTE Statement (undated) (df 19), passport extract, evidence of health cover (df 22), Bridging visa granted 25 May 2017 (df 26), delegate’s decision record (df 34-38), notification of refusal of application for a Student (Temporary) (Class TU) Student (subclass 500) visa (df 42).

17. The Tribunal has read and had regard to the applicant’s GTE Statement to the department attached to his application for a student visa (undated), in which he states his reasons for studying in Australia and how he chose his private education provider. In that GTE statement, the applicant states that he intends to return to Malaysia and open a restaurant. He states that he intends to start with a small scale restaurant where he will be the owner and manager. He states that a diploma and advance diploma in leadership and management will assist him in managing the restaurant and being a good leader for his employees.

18. The applicant is 36 years old and was born in Malaysia. He first arrived in Australia on 13 June 2012 on a tourist visa.

19. On his application for a student visa, the applicant states that he is married and has a child. His wife and child are both citizens of Malaysia. He states that he has parents, two sisters and a brother. He states that his parents, brother and one sister are ordinarily resident in Malaysia. He states that one of his sister‘s usual country of residence is in Australia.

20. The Applicant’s wife departed Australia on 9 May 2017. She is listed as a non-accompanying family member on his application.

21. The Tribunal takes into account the applicant’s immigration history. Department records show that the applicant first arrived in Australia on 13 June 2012. He has remained in Australia since that time, having been granted three student dependant visas, the final visa valid until 24 May 2017. The Applicant subsequently lodged this current application, as the main applicant on 23 May 2017. In his application for a student visa, he confirms that he currently holds a student visa as a secondary visa holder attached to his wife. He states that he had not visited any other countries in the last 10 years and had not visited or lived outside his country of passport for more than 3 consecutive months. His application for a Student Visa states that he had never had an application for entry or further stay in Australia refused. Accordingly, there is nothing concerning about the applicant’s immigration history.

22. On 19 May 2017, the applicant enrolled in a Diploma of Leadership and Management at the Mercury Institute of Victoria.

23. The applicant has provided evidence of familial ties to his home country. He says that he has both parents a brother and a sister whose usual country of residence is Malaysia. He lists his wife and child as non-accompanying family members. However, in circumstances in which the applicant did not return to his home country between 2012 and 14 August 2017, and the applicant has not provided any evidence in relation to any further travel subsequent to lodging this application for review, the Tribunal finds that the applicant’s personal ties to his home country do not constitute a significant incentive to return.

24. In the application for student visa, the applicant lists one of his sisters usual country of residence is Australia but he has provided no further evidence in regard to their relationship or any further evidence regarding any community or personal ties to Australia. In this circumstance, the Tribunal does not consider that the applicant’s personal ties to Australia constitute a strong incentive to remain in Australia.

25. The applicant has not provided any specific evidence of his economic circumstances in either Australia or Malaysia. He has provided no evidence of personal assets in either Australia or Malaysia. In these circumstances, the Tribunal is not persuaded that the applicant’s economic circumstances operate as a significant incentive not to return home.

26. The Tribunal recognises that the United Nations[1] classifies Malaysia as a “very high human development” country, ranking it 57^th in the world by the United Nations Human Development Index, whereas Australia, whilst also classified as a “very high human development country“, is ranked third. It is an objective measure that provides a further basis for concluding that the applicant’s visa application may have been primarily motivated by the more general economic opportunities, rather than specific educational opportunities to which his visa application refers, that staying in Australia may represent.

    [1] United Nations Development Program, Human Development Indices and Indicators: 2018 Statistical Updated (UNDP, 2018)

27. In these circumstances, the Tribunal finds that any incentive for the applicant to return home to Malaysia is minimal.

28. Further, the applicant states that he intends to personally support himself in his study and living in Australia. However, he does not explain how he intends to do so in either his application for a student visa or his GTE Statement.

29. The applicant states his highest level of education is secondary school to year eleven or equivalent at SMK Seri Garing in Malaysia. He has not provided any evidence that he commenced or completed any course of study in Australia. He did not enrol in any form of study in Australia until a few days before the expiration of his student dependent visa.

30. The Tribunal does not accept that an applicant with a genuine intention to stay in Australia temporarily as a student would reside in Australia for many years without commencing or completing any form of study. Whilst it is not uncommon for people to re-educate themselves or change their pathway, I do not consider enrolling in a course of study and applying for a student visa in the shadow of the cessation of the applicant’s visa is consistent with a genuine intention to study in Australia as a genuine temporary entrant.

31. I take into account that the applicant’s GTE statement states an intention to return to Malaysia and open a restaurant. Whilst I accept that the applicant’s prospects of employment and remuneration may improve slightly if he undertakes and completes his proposed courses of study, he has not demonstrated a clear and substantial improvement in his prospects would arise. Accordingly, the applicant has not demonstrated the value of the proposed courses to his future.

32. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: whether the applicant has reasonable reasons for not undertaking the study in Malaysia or that region, his specific economic circumstances, any potential military service in Malaysia, political or civil unrest in Malaysia, remuneration the applicant could expect to receive in Malaysia or a third country compared to Australia, circumstances in Malaysia relative to Australia or any other country and the applicant’s circumstances in Malaysia relative to others in that country.

33. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia on dependent and bridging visas, the Tribunal is concerned that a student visa may be used primarily for maintaining an ongoing residence in Australia.

34. Failing to provide additional information to the Tribunal as requested, the applicant is mostly relying on the strength of previous assertions made by him and documents before the Tribunal. In all circumstances, the Tribunal does not accept that the applicant is a genuine temporary entrant.

35. 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).

36. 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

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

    D.Triaca
    
    

    Member

    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:

    c.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    d.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    e.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    f.whether 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

    g.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;

    i.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    ii.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

    iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country

    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.