CHAN (Migration)

[2018] AATA 1394

CHAN (Migration) [2018] AATA 1394 (10 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr WEI YII CHAN

CASE NUMBER:  1620617

DIBP REFERENCE(S):  BCC2016/2726990

MEMBER:Mark Bishop

DATE:10 April 2018

PLACE OF DECISION:  Melbourne

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

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 10 April 2018 at 1:39pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) – Subclass 500 (Student) – Whether the applicant is a genuine temporary resident – English studies beneficial to future career – Strong family ties and economic ties to Malaysia – Practice and procedure – Matter resolved on the papers

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, 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 on 15 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 17 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 believed the purpose of the applicant’s visit to Australia was not for holiday as stated on his arrival card. The delegate believed the applicant had worked out a plan to extend his study in Australia beyond his holiday period. In those circumstances the delegate believed the applicant should have applied for a student visa.

4. The Tribunal resolved the matter on the papers.

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

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 GTE to Australia.

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

8. 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?

9. 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.

10. 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.

11. The Tribunal wrote to the applicant on 14 March 2018 requesting the applicant provide the following information (1) A copy of a current Certificate of Enrolment (COE) (2) Documents that showed the applicant was currently enrolled in a course (3) Documents that show past studies in Australia, attendance certificates, academic transcripts and certificates of completion and (4) An explanation of any gaps in enrolments and relevant documentary evidence.

12. The applicant provided a written statement as outlined below:

    ·    The applicant provided a concise summary of the findings of the delegate;

    ·    The delegate was not satisfied the Review Applicant (RA) had been able to demonstrate ties to his home country that would serve as a significant incentive to return to Malaysia;

    ·    The RA is not married and has no dependent children in Malaysia. However, his whole family including his parents and two sisters are all living in Malaysia. The RA’s 61 year-old father Mr. Sin Tet CHAN has been suffering from serious diabetes; he had been undergoing long-term treatment for many years but his condition is unstable especially in recent years; He recently had a major operation;

    ·    The RA and his whole family are Chinese Malaysian. As the only son, he has to shoulder the most of the responsibility of looking after his parents especially his father because Chinese tradition places strong emphasis on sons' obligation to care for parents compared to daughters. The obligation of supporting parents shall be considered as the RA’s significant personal tie to his home country, which improves his incentive to return upon completion of studies;

    ·    With regards to the Review Applicant's economic ties to his home country, Mr. CHAN has 150000 Malaysian ringgit (equivalent to 50000 Australian dollars) in his name in Public Bank Malaysia;

    ·    His mother Ms.Yon Mei KHO holds 34% shares while two sisters hold 33% shares respectively.  The  RA‘s mother has declared that all her shares of DING DING MINI MART will be immediately transferred to her son Mr.Wei Yii CHAN when he complete study in Australia and return to Malaysia for the purpose of better  and  further  business  development.  The  RA will  return to Malaysia upon completion of his studies and take over his mother's share to  run the business together with his sisters;

    ·    The RA is studying English language courses to improve his command of English. The RA stated that the reason for undertaking the proposed courses (package of English courses) is to improve his language capacity for his career. The RA worked at Thunder Match Technology as a Sales Assistance for three years from 1 February 2010 to 1 April 2013 and at CHEN SHI PROPERTIES as a Property Sales Executive for another three years from 1 May 2013 to 1 April 2016. Due to the lack of English language skills, he could not get a promotion so that he would like to undertake the English courses to assist him in getting a better job opportunity and advance his career in Malaysia;

    ·    Malaysia is a multicultural and multinational country, the language is also diverse. As the second official language of Malaysia, English plays an important role in helping people in Malaysia to communicate. The Review Applicant, as a sales executive working in a multilingual society, English should be an essential tool for improving communication effectiveness and working performance;

    ·    High-level sales position requires better English communication ability, thus the Review Applicant would like to undertake a package of English courses in Australia because the courses could benefit his future career prospects. Although the Review Applicant will run the family business (DING DING MINI MART) when he return, English will be still helpful in business operation.

    ·    It is contended that the RA is a genuine student. During the time of review application, the Review Applicant was studying so hard and has successfully completed and fulfilled all requirements of Certificate I in EAL and Certificate II in EAL at Australian Study Link Institute. He is currently studying Certificate III in EAL and this course will be completed on 14 June 2018.

    ·    It is contended that the Review Applicant meets the genuine temporary entrant criterion. He has strong family ties and economic ties to his home country that would serve as a significant incentive to return Malaysia upon completion of hid studies; he also has sufficient funds to support his stay and study in Australia and his English studies could benefit his future career.

13. The RA provided appropriate supporting documentation (including Graduate Certificates for his courses of study) to the Tribunal.

14. The Tribunal has considered the decision record. The Tribunal notes the decision record is not binding on the Tribunal and the Tribunal will bring an independent mind to the review and make a new decision. The decision record makes the following points;

    ·The delegate was not satisfied the intentions of the review applicant to study in Australia was genuine. The delegate was unable to accept that a person travelling as a tourist on an ETA Visitor visa for a 7 day holiday,   leaving their family in their country of residence  would make such a significant change  from their initial intentions of travelling in Australia;

    ·The delegate believed the stated intention of coming to Australia would have included a greater level of planning  and preparation before arriving in Australia;

    ·The delegate believed the applicant had enrolled for the courses for the purpose o visa application only in order to secure a student visa rather than due to a genuine interest in this area of study and overall academic progress.

15. The Tribunal has reviewed all the above material.

16. The delegate has succinctly explained his reasoning. He does not accept the intent and hence scale of the proposed shift on the part of the RA was genuine. The delegate believes there must have been considerable prior planning before the RA arrived in Australia in May 2016.

17. The Tribunal considers this may well be the case. The evidence certainly suggests it is the case. The Tribunal would be surprised if there had not been considerable family planning and discussion as to the utility of such a significant shift for the RA. The RA family are all integrated in various parts of the family’s business in Malaysia.

18. The Tribunal regards it as eminently sensible for the RA to seek to address the reasons he is not achieving a promotion in his career. He has identified a lack of facility with the English language as the principal causative factor. He seeks to remedy that shortcoming by studying English in an English speaking country so that he can return to his home country where English is the second official language.

19. The RA has spent nearly two years in Australia.  He has provided evidence of attendance and success in his studies in EAL. He has almost achieved what he came to do.

20. There is nothing in the schedule 2 criteria which prevents a visa applicant from applying for their first subclause 500 visa whilst they are in Australia holding a Visitor Visa (provided they are not holding a Visitor Visa under the Sponsored Family stream or Approved Destination Status stream. Instrument IMMI 16/016 contains the full list of visa that prevents an applicant from making a valid application for a subclass 500 visa onshore). The review applicant’s application for a Student visa does not come within the list of visas mentioned in IMMI 16/016.

21. Accordingly the Tribunal is of the view the application by the RA for a Student visa is entirely lawful and not prevented or prohibited by any Act, Regulation or Instrument.

22. The Tribunal has assessed the above application for a Student visa against the criteria set out in cl.500.212 and had regard to the factors set out in Ministerial Direction Number 69.

23. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

    Does the applicant intend to comply with visa conditions?

24. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

25. There is no evidence before the Tribunal which suggests the applicant will not comply with any conditions attached to his visa. The review applicant has complied with all conditions attached to his visa.

26. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

27. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

28. The Tribunal is satisfied the applicant is a genuine applicant for entry and stay as a student 

    Conclusion on cl.500.212

29. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

30. 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.

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

    ·cl.500.212 of Schedule 2 to the Regulations.

    Mark Bishop
    Member