BONG (Migration)

[2018] AATA 5407

BONG (Migration) [2018] AATA 5407 (6 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ai Boi BONG
Mr Wen Jack WU

CASE NUMBER:  1713046

HOME AFFAIRS REFERENCE(S):           BCC2017/949715

MEMBER:Mara Moustafine

DATE:6 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 06 November 2018 at 4:10pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – academic progression – studied unrelated courses – ceased studying for the past fifteen months – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 31 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 primary applicant (the applicant) first arrived in Australia on 6 November 2008 as the holder of a Class TU subclass 572 Student visa and was granted several subsequent Student visas onshore. The applicant applied for a Subclass 500 Student visa on 10 March 2017 to undertake a Diploma of Interpreting and an Advanced Diploma of Interpreting.

3. 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.

4. According to the Department decision record, a copy of which was provided to the Tribunal for the purposes of the review, the delegate 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 he was not satisfied that the applicant intended genuinely to stay temporarily in Australia. Among other things, the delegate was concerned that, while the applicant had progressed academically, she had studied unrelated courses and had not provided sufficient evidence as to how her proposed courses related to her previous study or would enhance her career prospects. He was also concerned at the length of time the applicant had spent in Australia; her apparent lack of personal ties to Malaysia and of significant incentive to return to Malaysia. He also noted that the applicant applied for her Confirmation of Enrolment (COE) shortly before lodging her visa application and the expiry of her previous visa, suggesting that the applicant applied for her student visa for the purposes of remaining in Australia rather than a desire to study.

5. The applicants applied to the Tribunal for a review of this decision.  They were assisted in relation to the review by their registered migration agent.

6. Ahead of her hearing the applicant provided to the Tribunal a Genuine Temporary Entrant (GTE) statement and supporting documents, including academic transcripts for Bachelor of Nursing, completion certificates and academic transcripts for Diploma of Management, Advanced Diploma of Management and Certificate III in Hospitality, a statement of attainment towards an Advanced Diploma of Tourism, a Confirmation of Enrolment (COE) for a Diploma of Project Management (08/10/2018 to 06/10/2019), an APEC report on Health and Medical Services in Malaysia and a 2018 payment summary.

7. The applicants appeared before the Tribunal on 6 November 2018 to give evidence and present arguments.

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. The issue in the present case is whether the applicant meets the time of decision criterion in 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. At the hearing, the Tribunal discussed with the applicant the reasons her Student visa had been refused in the context of the GTE criterion, noting that the primary purpose of a Student visa was for an applicant to study and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant her circumstances in Malaysia and Australia, her immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.

14. The applicant told the Tribunal that after arriving in Australia in 2008, she completed a course in Commercial Cookery because she liked cooking. However, she did not want to continue in this field as she found working in the industry too stressful. She completed a Diploma and Advanced Diploma in Management, then enrolled in Tourism, which she later said was for the purpose of maintaining her Student visa status. The applicant then completed a Bachelor of Nursing. However, when she was finishing this course, she found an interpreting course which she had never thought about previously but decided would assist her to explain things in Mandarin. She started a Diploma of Interpreting and studied from March to July 2017 but stopped studying when her visa was refused and was no longer enrolled in the Interpreting course. However, she wanted to complete this course before returning to Malaysia as she wanted to work in both Nursing and Interpreting.

15. Asked why she had not completed her Interpreting course while waiting for her Tribunal review, the applicant said she was stressed and angry and did not know she could keep studying. As to why she was now enrolled in Project Management and not Interpreting the applicant said she did not think she could enrol in Interpreting because her visa was refused and that she wanted to complete the Diploma of Project Management as it was relevant to Nursing, then study Interpreting, which would keep her in Australia well into 2020.

16. As discussed with the applicant, the Tribunal shares the Department’s concern that, notwithstanding her academic achievements, the length of time she has spent in Australia studying unrelated courses suggests that she is using the Student visa program to maintain ongoing residence in Australia. The Tribunal does not find credible that someone who has been in Australia as a student for a decade, did not know that she could continue studying while awaiting her review. Further, the Tribunal is concerned that, by her evidence at hearing, the applicant has not been studying for the past fifteen months and, according to the COE provided, only enrolled in the Diploma of Project Management six weeks ago.

17. In a discussion of her circumstances in Australia and Malaysia, the applicant indicated that she was living in Australia with her husband and supported him from her work in health and aged care. She confirmed that she did not have any job offers in Malaysia in either nursing or interpreting but would find a job easily in Malaysia with an Australian degree; and that her husband would not be working on return as he was retired. She said they owned a house in Malaysia. The Tribunal notes that the applicants have family ties in Malaysia, including the applicant’s mother and siblings but is not satisfied that these ties constitute significant incentive for the applicant to return to Malaysia. 

18. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, 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).

19. 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.

20. 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.

21. As the Tribunal has found that the first applicant does not meet the primary criteria for the visa and the second applicant has applied solely as a member of the family of the first applicant, it follows that the second applicant does not meet the secondary criteria.

    DECISION

22. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Mara Moustafine
    Member