Bong (Migration)

[2019] AATA 1558

Bong (Migration) [2019] AATA 1558 (16 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lisa Pei Chia Bong

CASE NUMBER:  1727166

HOME AFFAIRS REFERENCE(S):           BCC2017/2524732

MEMBER:Peter Booth

DATE:16 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 16 May 2019 at 1:49pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not entitled to appear before the Tribunal – genuine temporary entrant – strong ties in home country – length of proposed stay in Australia – value of course – remuneration and career prospects – course plan inconsistent with work history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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 27 October 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 16 July 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.

4. On 26 February 2019, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the review application, in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 12 March 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 applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicant did not request an extension of time and provided the information outside of the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 temporary entrant.

2. 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?

1. 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.

2. 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.

3. In response to a request by the Tribunal for information, the applicant provided the following information:

   a.She completed year 11 of her secondary education in China.

   b.Since arriving in Australia, she has left the country on several occasions, namely on 12 December 2017 (six days), 13 May 2018 (seven days), 6 October 2018 (five days), and 27 January 2019 (16 days).

   c.The applicant arrived in Australia as the holder of a tourist visa, valid from 21 April 2017 to 21 April 2018.  The current visa application was made on 16 July 2017. 

   d.The applicant has a current Confirmation of Enrolment in a registered course of study.

   e.The applicant completed a Certificate III in English on 21 January 2018, a Certificate IV in English on 10 June 2018, and is currently enrolled in a Diploma of Leadership and Management which commenced on 2 July 2018.

   f.The applicant stated as to why the course was chosen, and the education provider chosen, as follows:

   “St Peter's Institute is offering vocational placement for eligible students during the vocational qualifications.  This industry placement will provide me with a real opportunity to learn skills in Australian service sector.”

   g.As to whether there were similar courses available in her home country, the applicant stated:

   “By studying in Australia, I am planning to acquire English language skills, along with vocational skills. In Malaysia, if you speak English well, and have adequate industry skills, food and accommodation industry remunerates workers with high level salaries."

   h.The applicant's immediate family in Malaysia comprise her two children, her parents, her sister and two brothers.

   i.As to the applicant's employment plans, she stated:

   “I will pursue my career as a service manager with a large hospitality establishment in Malaysia."

   j.As to the expected income she stated:

   “As a manager, I will expect double-time of wages, after these qualifications in Australia".

   k.The applicant has no assets in Malaysia.

4. In an undated document entitled ‘Statement of Purpose’ provided to the Department, the applicant stated her reasons for studying a leadership management course in Australia. She stated that:

   “I want to become a service manager in a hospitality establishment, in Malaysia, and pursue a career in food and accommodation services sector." 

5. She went on to describe the reasons for choosing to study in Australia, as follows:

   “By studying in Australia, I am planning to acquire English language skills, along with vocational skills. In Malaysia, if you speak English well and have adequate industry skills, food and accommodation industry remunerates workers with high level salaries. I will be able to learn English as it is, and have a chance to learn real industry skills." 

6. She went on to state:

   “I am planning to study in Australia because the vocational education and training is recognised anywhere in the world. In my home country the vocational education and training is not found as Australian system. The vocational education training and qualifications are not nationally recognised. The teaching is mostly concentrated on theory concepts; practicality of the knowledge from these courses is non-current with industry trends. The skills I will possess by doing diploma in Australia are equivalent to the skills to be possessed after doing Bachelor degree in the home country".

7. She described her circumstances in Malaysia as follows:

   “I have two kids through my marriage and divorce in the year 2016.” 

8. Her plans for the future were described as follows:

   “After I finish my studies in Australia I will return to my home country to care of my two kids and pursue my career as a service manager with a reputable hospitality establishment in food and accommodation service industry.” The knowledge and skills acquired in Australia will help me progress further in my career to become a second in charge position. I will set my service to become a manager through career progression and want to stand for my two young kids to provide better education and better chances in their young life."

9. In considering whether the applicant met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with clause 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether they satisfy the genuine temporary entrant criterion.

10. The Tribunal has considered the applicant’s circumstances in her home country.  The applicant is divorced and from Malaysia.  The applicant has provided evidence of social, direct family and financial ties to her home country or other economic incentives to return. When considering the applicant’s circumstances in her home country, the Tribunal therefore finds that she has been able to demonstrate significant ties to act as an incentive to return to her home country at the completion of the proposed study.

11. The Tribunal has considered the applicant’s potential circumstances in Australia.  The applicant first arrived in Australia on 10 May 2017 as a holder of tourist visa valid to 21 April 2018.  The proposed study would extend the applicant’s stay until at least August 2019.  The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia.

12. The Tribunal places weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country.  The Tribunal has considered the applicant’s study history since arrival.  She commenced study in a Certificate III in English, and then a Certificate IV in English.  The Tribunal notes that this course plan is inconsistent with the applicant’s work history (as a cook) and is inconsistent with her plans when she initially entered Australia.  The applicant now wishes to pursue a Diploma of Leadership and Management in Australia.  The course is asserted to have relevance to very vague future plans.

13. The applicant has provided a letter in which she attempts to address the genuine temporary entry criterion.    The applicant claims that she will gain value from a Diploma of Leadership and Management because she wishes to work in hospitality in her home town.    The Tribunal notes that the applicant worked as a cook in Malaysia. The Tribunal is not satisfied that the applicant has established that the study will provide her with significant benefits in her proposed career plan, considering the cost of the study and the fact that the applicant already has experience as a cook.  The Tribunal is therefore not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to her future beyond the qualifications she already holds.

14. The Tribunal has given regard to the applicant’s immigration history.  The applicant arrived in Australia on 10 May 2017 as the holder of tourist visa valid to 21 April 2018.  Within four months the applicant had applied for a Student visa.  Whilst the tribunal accepts that plans can change, this is not the conduct of a genuine student.  Rather, it suggests the applicant has decided to extend her stay in Australia by utilising the Student Visa Programme.

15. The Tribunal has given regard as to whether there is any other relevant matter.  The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.

16. The Tribunal has considered all the information provided with the visa application.  After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.

17. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: economic circumstances of the applicant, any potential military service in Malaysia, political or civil unrest circumstances in Malaysia, remuneration the applicant could expect to receive in Malaysia or a third country compared with Australia; circumstances in Malaysia relative to Australia or any other country; and the applicant’s circumstances in Malaysia relative to others in that country.

18. 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, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.

19. 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).

20. 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.

21. 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

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

Peter Booth
Member