Ahmad (Migration)

[2018] AATA 4772

Ahmad (Migration) [2018] AATA 4772 (16 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rahirza Binti Ahmad

CASE NUMBER:  1618980

HOME AFFAIRS REFERENCE(S):           BCC2016/2707640

MEMBER:Mark Bishop

DATE:16 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 16 October 2018 at 11:12am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – studied an English language course – speaks English fluently –enrolled in Diploma of Remedial Massage –no relation to career plans – limited personal ties to home country

PRACTICE AND PROCEDURE – decision made on review – applicant consented to no hearing

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

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 3 November 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 16 August 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 the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal.

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

6. On 18 March 2018 the applicant advised the Tribunal in writing she consented to the Tribunal deciding the review without a hearing.

7. On 22 August the applicant provided signed written consent to the AAT to decide his application for review without a hearing, on the basis of information and evidence before it; under s.360(2)(b) of the Migration Act 1958

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

   Genuine applicant for entry and stay as a student (cl.500.212)

10. 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?

11. 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.

12. 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.

13. The applicant provided a brief statement to the Department that outlined the following:

    ·She sought a student visa to study English to improve her English language skills in conversation, writing and understanding. She studied in Australia as it is an English speaking country. Many people in her home country prefer to speak and write in Malay;

    ·Speaking English would assist in her career development as a billing associate.

14. In her application for a student visa in respect of GTE criteria the applicant outlined in almost identical language the reasons as stated in paragraphs 13 above. She also advised she had a Diploma in Computer Studies from her home country. She advised she had Overseas Student Health Coverage (OSHC) from 5 September 2016 until 4 November 2017. She advised she would resume her career as a billing specialist at the completion of her studies in English.

15. The applicant provided Certificates of Graduation in English dated 24 March 2017 and 13 October 2017.

16. The applicant provided student tax receipts of $1,990 dated 29 January 2018 and 19 March 2018 for enrolment in a Diploma of Remedial Massage. The applicant provided a copy of a statement from an education provider that advised of enrolment in a Diploma of Remedial Massage commencing 25 January 2018 and concluding 11 July 2019.  

17. The applicant provided a GTE Statement to the Tribunal dated 11 November 2016  that outlined the following:

    ·The applicant advised she stated in her incoming passenger card she intended to remain in Australia for six days only. She advised she “…planned to stay for approximately 6 days, and ended up staying 80 days, because at the beginning I was planned to come for holidays and to look in to a good college to enrol my further studies in English…”

    ·She visited Australia from 10 December 2015 until 28 February 2016 for “…holiday purpose and was looked into some good colleges that I wish to enrol to further my studies…”

    ·She can speak English fluently;

    ·She needs to improve her writing skills and grammar;

    ·Her main purpose incoming to Perth is to study in English, other than having holidays and meeting friends;

    ·She would study Certificate III and IV in English;

    ·She has never been employed since 31 August 2011;

    ·She has savings and finance assistance from a brother;

    ·She has no intention of prolonging her stay in Australia after completing her English language courses.

18. The applicant provided a written response dated 18 March 2018 to a request for student visa information under s.359(2) of the Migration Act. It outlined the following:

    ·The applicant completed secondary school in her home country and a Diploma of Computer Studies was conferred in August 2003 after 2.5 years of study;

    ·The applicant worked in her home country from May 2004 until December 2015 in positions of sales coordinator, senior associate billing and freelance agent at salaries of $10,000 to approximately $17,000 per annum;

    ·She applied for a Student visa and this application was rejected in June 2016;

    ·She was not enrolled in any course of study from October 2017 until late January 2018 and remained in Australia during this period of non-enrolment;

    ·She enrolled in a Diploma of Remedial Massage that commenced in January 2018 and is scheduled to conclude in July 2019;

    ·She did not provide any detail as to paid work, if any, in Australia;

    ·She holds a passport from Malaysia, has entered Australia on two occasions on a tourist visa, in June 2016 did not leave Australia and instead applied for a Student visa and has not applied for a visa to a country other than Australia;

    ·She has travelled to Singapore, Mexico, Indonesia and the UK in the last ten years;

    ·Her annual living expenses in Australia are approximately $30,000;

    ·She last saw friends and family in her home country in 2016

19. The applicant provided a copy of a letter from Ephraim Investments and Consultants dated 11 November 2016 that outlined information relating to the following:

    ·The applicant was granted a visa for 90 days, it was her intention to look at schools and leave within 6 days, she found the right school, changed her mind, and applied for a student visa. She has the right to change her mind. There was nothing preventing her from applying for another visa as there were no 8503 conditions;

    The Tribunal notes the applicant did not make any reference to enrolment in a Diploma of Remedial Massage in this letter.

    ·An offer of employment in her home country as a Billing Specialist subject to provision of “…proficiency in English and basic Accounting skill;

    The Tribunal notes the applicant advised she can speak English fluently and needs only to improve her writing skills and grammar (see paragraph 17)

    ·Bank statements from her brother and a friend.

    The Tribunal notes the two bank statements were in the name of a Rahirza Binti Ahmad and provided a balance of approximately $11,000 and Mohr Nazasli Bin Abdul Aziz and outlined a continuing balance of approximately $48,000 in the period June to November 2016. There was no indication the applicant had access to or use of this latter account. The application for a student visa did not make reference to support from this account holder or applicant access to this particular account. The applicant advised the department on 16 August 2016 “my family members and myself will support my study and living expenses in Australia”.

20. The applicant is currently enrolled in a Diploma of Remedial Massage. She has not provided any detail as to this course. She has not related this course to future employment. She has not related this course to a future business enterprise. In her various statements to the Department and Tribunal outlined above she did not mention enrolment in this course or address its utility in any way. In a written response to a request for information as outlined in paragraph 18 above the applicant did not outline any detail or advance any information relating to enrolment in this course. The applicant has not provided any detail as to course progress, if any in this Diploma.

    Ministerial Direction Number 69

21. The Tribunal turns to consider Ministerial Direction Number 69 (MD69).

22. The Tribunal considers cl.9 and 10 of MD69 - the applicant’s circumstances in her home country.

23. The applicant advised immediate family live in her home country. She advised she lives in Australia with the support of a brother and accumulated savings. She did not advise of any interests in companies or assets in her home country. She did not advise of any links to community in her home country. She provided conflicting advice as to her work history (see paragraphs 17 and 18 above). She advised she had not seen family members or friends since mid-2016. She did not advise of any form of communication with friends and family in her home country. She did not advise he family and friends in her home country had visited her in Australia.

24. The Tribunal is inclined to the view the applicant has limited personal ties to her home country. The Tribunal is of the view the applicant’s ties and circumstances do not serve as a significant incentive to return to her home country.

25. The applicant appears to have qualifications at Diploma level in Computer Studies and has advised the Tribunal she has pursued a career in service industries with a concentration as a billing specialist or senior billing associate (see paragraph 18 above). Alternately she also advised the Tribunal she had not worked since August 2011 (se paragraph 17 above). She did not provide any detail of work in Australia. Her living expenses are quite high and apparently paid from accumulated savings or by way of financial help from family. The applicant did not advise there was any limitation or cut-of date for this financial assistance. The applicant did not provide detail as to her intention to work as a remedial masseur or potential salary as a remedial masseur post completion of her current Diploma. The applicant did not provide any detail of potential or possible employment in her home country post November 2016.

26. The applicant appears to have a well-funded and steady life in Australia where her financial circumstances are not an issue or a problem. The Tribunal concludes the economic circumstances of the applicant present as a significant incentive for the applicant not to return to her home country.

27. The applicant did not provide any advice a to military service commitments in her home country. The applicant did not provide any advice as to civil or political unrest in Malaysia. There was insufficient material before the Tribunal to reach a conclusion concerning cl.10 of MD69.

28. The Tribunal considers cl. 11 of MD69 - the applicant’s potential circumstances in Australia.

29. The applicant has provided conflicting information in the various pieces of official documentation and supporting statements to the Department and Tribunal over time. The applicant applied for and was granted two tourist visas in the years 205 and 2016. Those tourist visas were time limited. The applicant made it quite clear she had a right to change her mind and apply for a student visa whilst visiting Australia as a tourist. She provided a specific written statement to this effect (see paragraph 19 above). In earlier statements as outlined by the delegate she failed to make any mention of studying in Australia. In a statement to the Tribunal she made it clear she was investigating the possibility of enrolling in courses of study in Australia (see paragraph 17 above).

30. The applicant has been less than consistent in providing reasons for pursuing courses of study in Australia. She came as a tourist for a limited period; examined options for study in Australia; applied for a Student visa for the purpose of studying English; completed her studies; advised she intended to return to her home country to seek employment using her newly acquired proficiencies in English; did not return to her home country; enrolled in a eighteen month course in Remedial Massage; provided no reasons for this enrolment and did not address reasons for this enrolment in her various statements to the Tribunal.   

31. The applicant has not provided any detail as to family or community ties in Australia. There appears to be only one constant in her life since 2016. That constant is continuing residency in Australia. The Tribunal is of the view the applicant’s ties with Australia are of continuing residency and that tie presents as a strong incentive to remain in Australia.

32. The Tribunal considers cl. 12 of MD69 – the value of the course to the applicant’s future

33. The applicant advised she applied for a Student visa for the purpose of improving her English language skills. This she stated would assist in her career development in her home country. She has completed those English language courses and advised the Tribunal she acquired a reasonable standard of English language proficiency. She has now enrolled in a further Diploma of Remedial Massage. She has not provided any detail as to why she has now enrolled in this course. She has not related this course to future employment. She has not advised it will improve her employment prospects in her home country. The course has no relevance to her Diploma of Computing Studies or career as outlined in paragraph 18 above. She has not outlined any detail as to possible future remuneration she might obtain if she pursues a career as a Remedial Masseur in her home country or a third country. The applicant has not advised the Tribunal she wishes to change career. Statements to the Tribunal and evidence of job offers in her home country show intent to resume her former career.

34. The Tribunal is unable to see any value in the course of Remedial Massage to the applicant.

35. The Tribunal considers cl. 13 and 14 of MD69 - the applicant’s immigration history.

36. Cl. 13 of MD69 makes it clear an applicant’s immigration history refers both to the visa and travel history.

37. The applicant outlined her visa and immigration history to the Tribunal at paragraphs 17 and 18 above. The Tribunal does not make any adverse findings against the applicant concerning her visa or travel history.  

38. The applicant has undertaken courses in English and provided evidence of part payment of tuition fees in a Diploma of Remedial Massage. The Tribunal outlined the applicant’s study history in Australia in paragraph 33 above. The applicant has undertaken a series of short, inexpensive courses. The Tribunal is of the view the applicant uses the student visa primarily for maintaining ongoing residence.

39. 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).

    Conclusion on cl.500.212

40. 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.

41. 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

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

    Mark Bishop
    Member