Alimin (Migration)

[2024] AATA 3098

Alimin (Migration) [2024] AATA 3098 (20 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rike Alimin

REPRESENTATIVE:  Dr Yusak Oktavianus (MARN: 2117099)

CASE NUMBER:  2406636

HOME AFFAIRS REFERENCE(S):          BCC2023/5487646

MEMBER:Joseph Francis

DATE AND TIME OF

ORAL DECISION AND REASONS:         20 June 2024 at 9:55 am (WA time)

DATE OF WRITTEN RECORD:                28 June 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) (Subclass 500) visa with direction that the primary applicant meets the following criteria:

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

Statement made on 28 June 2024 at 12:54pm

CATCHWORDS  
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –– incentive to return home on completion of studies outweigh incentives to remain in Australia – applicant is enrolled in a course of study – applicant has provided the Tribunal with a CoE –satisfied that the applicant is a genuine applicant for entry and stay as a student – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 March 2024 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 20 June 2024 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision by Member Joseph Francis for applicant Ms Rike Alimin, file number 2406636, held on 20 June 2024.  The decision commences at 9.55 am Perth time.  Ms Alimin, you first arrived in Australia on 24 June 2023 and are the holder of a (Subclass 600) Visitor visa.  You came here to stay for about a month on a holiday and to have a look around and in that time, you made it over to Brisbane and back.  You have told me that you saw an advertisement for an education agent, and you explored the opportunity of studying in Australia. 

4. After seeing an advertisement in Perth, that led you to apply on 23 September 2023 for a Student (Temporary) (Class TU) (Subclass 500) visa in order to study a Certificate III in Commercial Cookery followed by a Certificate IV in Kitchen Management, and a Diploma of Hospitality Management.  Two years all up.  However, on 13 March 2024, a delegate from the Department of Home Affairs refused your visa application and you then lodged an application with this Tribunal for that decision to be reviewed within the required timeframe. 

5. The delegate refused your visa because they were not satisfied that you met the requirements of Clause 500.212(a) of Schedule 2 to the Migration Regulations 1994. In short, they were not satisfied that you were a Genuine Temporary Entrant to stay and study as a student when they looked at the requirements of what was then Ministerial Direction No. 69 – now it is Ministerial Direction No. 108 – the matters that need to be considered when assessing whether or not you are a Genuine Temporary Entrant for the purpose of a (Subclass 500) Student visa.

6. I have invited you into the hearing today because I was not able to make a decision on the information that I had before me, and I wanted to hear from you directly.  Coming in in person allows me to make a more thorough, accurate assessment of your integrity as a witness, but also, for me to ask questions about your circumstances and your motivations for wanting to study the particular course you have chosen.  This also allows me to determine whether or not you are a Genuine Temporary Entrant.  In other words, whether you are here as a student or are there other motivations for you having to apply for this visa.

7. As English is not your first language, we ensured that there was an accredited interpreter present who was fluent in Indonesian and English.  However, you conducted the whole hearing in English.  I want to thank you for your cooperation. 

8. It makes everyone’s job a little bit easier when you endeavour to do that, and I know that you could have used the Indonesian interpreter for the whole hearing; but I just want to thank you for your cooperation.  You were provided the opportunity prior to the hearing through your representative who was here today, Mr Youseff Octavianus, to submit evidence to satisfy two key areas.  Firstly, whether you have a current Certificate of Enrolment, which you do.  Secondly, to support your claim that you are a Genuine Temporary Entrant.

9. You do currently have a Certificate of Enrolment, that being the Certificate III in Commercial Cookery, in which you are on the cusp of finishing prior to starting the six-month Certificate IV and a six-month Diploma in Hospitality Management. You are effectively half-way through your two-year study period. Because you do have a Certificate of Enrolment, the only issue for me to determine today is the question as to whether or not you’re a Genuine Temporary Entrant. In making a decision about that, I need to consider and apply two legislative instruments: firstly, clause 500.212(a) under the Migration Regulations; and secondly, as I said, Ministerial Direction No. 108.

10. When you lodged your application, that was known as Ministerial Direction No. 69.  For the purpose of your application and my decision today, all of the matters that I need to have regard to considering your application remain unchanged.  I will go through some of them with you, like I went through some of them at the hearing.  Firstly, I had to consider whether or not the course or similar courses are available in your home country or region. 

11. You are 39 years old, and you have told me that you could study short versions of cookery back in Indonesia, but it is effectively narrowed down to a small field of kind of dishes.  I expect it is predominantly Indonesian, and your aim is to work in a tourist hotspot of Bali where there would be a lot more demand for international cuisine.  You have also told me that the recognition of an Australian qualification means that you might get paid some 40 per cent more than what you would get paid if you were just a cook without an Australian qualification back in Indonesia.

12. Likewise, as it is your intention to try and start a business and get employment in Bali, while you already have some command of the English language, I accept that the best way for you to improve your English even further is to study in an English-speaking country.  You wouldn’t have been given that opportunity if there was even a course similar to your proposed studies back in your home country.  Given all of those matters, I find that there are reasonable reasons for not undertaking the study in your home country or region.

13. I have had to consider the extent of personal ties to Australia and your home country.  You are not married.  You do not have children.  You have no family here in Australia.  All of your family is back in Indonesia.  When I look at the incentives from that point of view, just on family connections, you have nothing here to incentivise you to remain.  In fact, just on that point of view: all of your incentives are back in Indonesia, so I can find that the incentive for you to return home on completion of your studies outweigh your incentives to remain in Australia when I look at your family circumstances.

14. I have had to consider the financial aspects, and you don’t have work rights at the moment.  We have discussed this.  I told you that if you were to be granted this visa, you would most likely be allowed to work for 24 hours per week; 48 hours a fortnight.  You told me if that was the case, you would probably seek employment in a restaurant in the hospitality sector to gain more knowledge, and I commend you on that.  It is something that I place weight on.  You did not have much knowledge on what kind of pay rates you might expect here in Australia if you were given work rights, and I had to put some approximate figures using my knowledge on this. 

15. Perhaps you might make $700 per week here.  You are paying $200 a week in rent.  You are paying $250 a week for your course over two years; that is where the $24,000 comes from: a thousand dollars a month in your course fees.  Given the higher cost of living here compared to Indonesia, even though Indonesia will have a much lower hourly income rate and taking into account what that might be with an Australian qualification, it is still a lower hourly rate that what it is in Australia.  When I look at the cost of living and the course costs, I place neutral weight on whether there is a financial incentive for you to try and remain in Australia.

16. You have told me you have the savings to pay for your course and your cost of living here, and from the evidence you provided today, I am not concerned that you have a financial motivation to remain in Australia and be enrolled in this course just so you can work.  It is a consideration I have to look at in all of these particular types of applications and I have no concerns in that regard.  I have had to consider your knowledge of the proposed course.  If this was at time of application, back when you applied for the visa decision, I might expect a bit more information as to how you found your education provider: whether an education agent offered you the alternative to go and look at different schools providing the same course and why you chose this one; what knowledge you might have regarding the curriculum – in other words, what subjects you are going to learn in the future.

17. You are in a unique position that given the passage of time over the last 10 or 11 months, you are now on the cusp of completing that Certificate III.  You have been able to demonstrate compliance with the three primary concerns I normally have of a (Subclass 500) Student visa.  The first one is you have been paying the school fees on time, so I have no concerns with that capacity.  Secondly, you have been attending class.  I don’t have an attendance record from the Australian Institute of Learning.  It is rather unhelpful that they do not provide those documents to applicants before they front the tribunal.

18. But I accept your word that you have pretty much a perfect attendance record.  You said you might have been late once or twice, but you have been attending your class.  Thirdly, as evidenced from the course progression, you have been completing and passing all of your units in study.  Given that you have a certificate of enrolment and you meet clause 500.211, and given that you were complying perfectly with the Student visa conditions, the only real questions left for me to determine are the key ones at the end of Ministerial Direction No. 108, and that is whether or not I believe there is evidence that the Student visa system is being used by you to circumvent the intentions of the Migration Program; whether or not I believe it is being used to maintain ongoing residency in Australia.

19. As for the first question, at the age of 39 and with the Regulations as they currently sit, you have no pathway to permanency.  You have no pathway, to the best of my knowledge, as the Regulations are now to apply for any kind of skilled graduate visa when you finish your studies in 12 months’ time.  Effectively, you are a Genuine Temporary Entrant whether you like it or not.  There is very limited options for your otherwise, so I am not concerned about you using the Student visa system to circumvent the intentions of the Migration program. 

20. The last question is are you doing this just to maintain ongoing residency here?  If that was the case, you might well have applied for an easier and cheaper course to buy yourself another 12 months, such as Beginner English. It would not have cost you so much, given your English language capability alone.  You would have found it a breeze, that course, and it would have bought you another 12 months in Australia.  However, you have not done something like that, and you have not taken the easiest route because you have been attending your class, and you have a vision for what you want to do.  I am not concerned about that question, either.

21. Lastly, when I consider whether the course is consistent with your current level of education or with your previous or proposed future employment, you have worked in a restaurant.  You have worked in this business and actually took leave after you arrived in Australia.  You have a plan and I accept the evidence from your friends and from your employer that effectively, the restaurant business and hospitality is your bread and butter.  I am satisfied that the course is consistent with your previous and proposed future employment.  It ties in, if I could put it that way.  It makes sense.  You are not here to study automotives or mechanics.  Having worked in a restaurant, you are here to study commercial cookery and hospitality.

    When I consider all of those aspects individually and cumulatively, as well as your situation as a whole, I am satisfied that you are a Genuine Temporary Entrant for the purpose of a (Subclass 500) Student Visa. I am satisfied that you will comply with future visa conditions. Accordingly, given those findings, the appropriate course of action is to remit the application to the Minister to consider the remaining criteria for a (Subclass 500) Student visa. Therefore, the decision is the tribunal remits the application for a Student (Temporary) (Class TU) (Subclass 500) Student visa for reconsideration with direction that the applicant meets clause 500.212(a) of Schedule 2 to the Migration Regulations.

    DECISION

22. The Tribunal remits the decision under review with the direction that the applicant meets 500.212(a) of Scheduled 2 to the Migration Regulations.

    Joseph Francis
    Member