YULIYASTRAWAN (Migration)

[2018] AATA 5435

YULIYASTRAWAN (Migration) [2018] AATA 5435 (1 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr PANDE PUTU EKA YULIYASTRAWAN
Mrs NI PUTU DEACY CHRISNAYANTHI

CASE NUMBER:  1711262

HOME AFFAIRS REFERENCE(S):           BCC2017/1188826

MEMBER:Gabrielle Cullen

DATE:November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 01 November 2018 at 4:37pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine applicant for entry and stay as a student – committed to current study in Australia –genuine intention to stay in Australia temporarily –decision under review remitted for reconsideration

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 17 May 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 28 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 applicant arrived in Australia on 12 June 2013 on a subclass 573 visa valid to 22 September 2016 to study a Bachelor of Business. He was however, granted a subclass 573 visa as a dependent of his spouse on 17 March 2014 and again on 10 September 2015, valid to 3 May 2017. He applied for the visa as the primary visa holder to which this application relates on 28 March 2017. Since his arrival in Australia he has departed on three occasions for approximately one month on each occasion.

4. Certificate of Enrolments attached to the applicant’s current application refer to the applicant studying a Certificate IV in Business, a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management from 10 April 2017 to 4 October 2020. He provided to the Tribunal enrolment certificates from his education provider indicating that he is now enrolled in the Diploma of Leadership and Management from 9 July 2018 to 7 July 2019 and the Advanced Diploma of Leadership and Management from 9 July 2019 to 13 December 2020. Evidence from his education provider indicates that he has successfully completed the Certificate IV in Business. He provided evidence that he has successfully completed two subjects towards the Diploma of Leadership and Management.

5. The evidence at the time of this decision, from the applicant and the Department decision indicates that he did not commence the Bachelor of Business he was enrolled to commence after his arrival in 2013. He studied and successfully completed an English course in 2013 and then commenced the Diploma of Business in October 2013 but ceased studying in March 2014 and his enrolment was cancelled.

6. The applicant provided a statement to the Department. He said he gave up his study after one year in Australia as he was married and wanted to support his wife’s study. He claims he now wishes to focus on his study so he can improve his career prospects on return to Indonesia. He claims that the course will give him benefits and advantages on return to Indonesia. He claims he will then have sufficient knowledge to compete with other businesses as it will help him to better understand business and how to be a leader in business. He claims once he has his qualifications he will be able to start his own business or work as a manager with a foreign company on return.. He later refers to returning to Indonesia on completion of his studies and being successful in business as he will have mastered English and will work with a foreign company. He claims he wants to return to Indonesia to live with his parents and family.

7. The delegate decided to refuse to grant the visa on 17 May 2017. The delegate decided to refuse to grant the visas because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned as to the value of the course to his future, his length of time in Australia and why he would want to study at the vocational level when he had obtained a Bachelor of English Literature in Indonesia.

8. On 26 May 2017 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.

9. On 27 July 2018 the Tribunal wrote to the applicants and invited them to attend a hearing on 29 August 2018. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

10. He provided the following to the Tribunal:

    ·A letter of employment dated 9 December 2016 from Krishna Villa Guest House offering the applicant employment on completion of the Advanced Diploma of Leadership and Management on 25 November 2020.

    ·Certificate of Marriage between the applicants dated 8 January 2014.

    ·Evidence of health insurance to June 2019.

    ·Certificate of Service from Mediterranean Shipping Company as a waiter in 2011/2 and evidence he was employed as a waiter in Indonesia.

    ·Evidence the applicant owns land in Indonesia.

    ·Evidence of the second named applicant successfully completing courses.

    ·Evidence the second named applicant is pregnant and due to give birth in November 2018.

    ·Evidence the applicant achieved a Bachelor degree in English in Indonesia.

11. In his GTE statement submitted to the tribunal the applicant makes the following relevant claims:

    ·He postponed his study in 2014 to support his wife’s study. He claims he did all the house work and picked her up from school.

    ·In 2014 the second named applicant became pregnant and they went back to Bali in July 2014 to hold a wedding ceremony. Sadly she miscarried the baby after two months but it was a very hard time and the second named applicant kept studying.

    ·The applicants own a house in Indonesia which was given to them by their parents.

    ·The second named applicant is currently 29 weeks pregnant.

    ·It is his dream to return to Indonesia and start his career. He claims in Indonesia he could only obtain a job as a waiter with his past qualifications. He claims if he returns without qualifications he will return with nothing and be unable to support his family.

    ·He claims he has been told the baby has a high risk of down syndrome and they are very worried and he explained to the school that he needed more time to complete the assessment but the school terminated his COE. He claims he then talked to the school again and got a second chance.

    ·The second named applicant completed her study in January 2017.

    ·His plan when he completes his study is to return to work for a local company. He claims he has a job with Krisna Village Guest House as an operational manager.

    ·His parents will support his study.

    ·He wants to do the courses as the technical method is different in Australia than in Indonesia and Australian courses are internationally recognised. He claims he will gain more respect having international qualifications and this will help him set up his company in the future.

    ·He claims he wishes to start his career in the leadership and management field and then when he has enough knowledge and career experience he will start his own business. He will have mastered English and will be fit from the work with a foreign company.

    ·He wants to return to Indonesia to build his country, live with his family and stay close to his parents.

12. The applicants appeared before the Tribunal on 29 August 2019 to give evidence and present arguments. The applicant’s education agent, Ms Kristy Natali appeared as a witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

13. As to his education and work in Indonesia, he said he achieved a Bachelor of English but could only find work as a waiter. He said he came to Australia to learn and improve his English.

14. As to courses he had completed since his arrival, he said he arrived on 12 June 2013 and then his girlfriend came and he decided to marry her and she held the student visa. He said he decided to postpone the study to look after her. The Tribunal asked if he passed any subjects in his study of the Diploma of Business leading to a Bachelor of Business in 2013/4. He said he passed two subjects and then didn’t study from approximately March 2014.

15. The Tribunal questioned him regarding his study since he applied for the current visa and in particular his course progress with regard to the Certificate IV in Business and Diploma of Leadership and Management. He said he had been attending and passing the Certificate IV in Business.

16. As to his reasons for undertaking the current study; he said that he needs to take care of his family and he needs to improve himself. He said his plans are to finish. He referred to better opportunities if he finishes his course. The Tribunal referred to his letter from December 2016 of being hired once he finishes his qualification and questioned whether that is still current as it is dated December 2016.

17. It raised with him that the value of the course to his future. He said as soon as he finishes his studies he will return and he will become a Manager in a foreign company. When asked what; he said in leadership.

18. The Tribunal asked him when he realised he needed qualifications for him to return to Indonesia as he had claimed he needed these to obtain better career opportunities to look after his family. He said in June 2017 after he applied for the visa.

19. The Tribunal questioned whether he is a temporary entrant having been in Australia for over 5 years and wanting to stay for 7 and a half years. It noted that in this time he had only successfully completed one course. It asked him why if he came to Australia to study he did not study and he referred to his wife’s miscarriage and that he had to take care of her while she studied. He said he first wanted to take care of her.

20. He said he has no family in Australia except his wife and his family is in Indonesia. He said he had no military commitments in Indonesia or civil and political reasons which would act as a disincentive to return.

21. He said he had paid $1300 towards his course. Information he provided was lacking in some detail as to his current course. He said he only needed to complete 6 subjects where the course information refers to 12. He said he is undertaking 2 subjects and referred to organising a meeting and work safety which is consistent with information as to subjects provided in this course. He could not name any other subjects or the subjects he is to undertake next semester r

22. The witness indicated that the applicant came to see her in January 2017 and decided he wanted to continue to study as he wanted to obtain skills in Australia in leadership and management to improve his opportunities in Indonesia. She said she asked him as he was enrolled in a Bachelor of Business why he did not want to continue that and he said he advised her he wanted to study a more practical course. She said after going through the options he decided on leadership and management. She said he really wants to study and is a genuine student.

23. After the hearing he provided information indicating he had actually successfully finished the Certificate Iv in Business and was enrolled in the Diploma of Leadership and Management, having completed 2 out of 12 units. He said he was very nervous at the hearing and could not explain well his study.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. 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.

25. 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 cl.500.212(a).

26. Clause 500.212(a) 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

27. 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.

28. 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.

29. For the reasons that follow the Tribunal has decided to remit the matter for reconsideration.

30. This is a difficult case to assess. The applicant has been in Australia for five years and wants to study until 2020, a period of 7 years, which raises concerns as to whether he is a temporary entrant. He has only enrolled in and successfully completed courses at the vocational level despite achieving a Bachelor level course in Indonesia. Further, despite arriving in Australia on a subclass 573 visa on June 2013 and indicating he wished to study a Bachelor of Business, he only finished an English course and two subjects towards a Diploma of Business before becoming a dependent on his wife’s visa from March 2014 to March 2017.

31. However, since his application for a student visa as the primary applicant on 28 March 2017 the applicant has successfully completed a Certificate IV in Business and is studying the Diploma of Leadership and Management. He gave information consistent with independent information as to subjects he is studying. There is concern he said he only had to complete 6 subjects to obtain the Diploma, where 12 is required and he did not know what subjects he is studying next semester. Notwithstanding, the Tribunal accepts he is attending and achieving course progress.

32. Further, he claims he will depart after completion of these courses in 2020 as he has a job in Indonesia.

33. As to the value of the courses to his future, the applicant was able to provide some detail as to his future career aim. He provided written evidence of this employment, although the letter is dated from 2016. The Tribunal accepts that while he has already completed a Bachelor degree in Indonesia, as it was in English he has not been able to obtain employment to the level he would like. It accepts his motivation is to improve himself and obtain qualifications in leadership and management so he can obtain a better job as he is about to have a baby.

34. The Tribunal is satisfied that the applicant is committed to his current study in Australia so he can improve his employment and career opportunities when he returns to Indonesia.

35. The Tribunal finds the applicant’s current enrolment and future plans supportive of his claim that he sees Australia as a temporary location in which to study. He has provided evidence that he will depart Australia on completion of the Advanced Diploma course in 2020.

36. The Tribunal accepts that the balance of his family resides in Indonesia. While his partner is with him in Australia she is also on a temporary visa. The applicants own property in Indonesia.

37. There is no evidence of military service commitments or political and civil unrest in Indonesia which would present as a significant incentive for the applicant not to return to his home country.

38. On the basis of the above, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student because he intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

39. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

40. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212(a) of Schedule 2 to the Regulations.