CHEAH (Migration)

[2018] AATA 3311

CHEAH (Migration) [2018] AATA 3311 (22 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hui Lin CHEAH

CASE NUMBER:  1708272

HOME AFFAIRS REFERENCE(S):           BCC2017/608075

MEMBER:Penelope Hunter

DATE:22 August 2018

PLACE OF DECISION:  Sydney

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 22 August 2018 at 2:50pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) – Subclass 500 (Student) – Genuine temporary entrant – First student visa application lodged onshore – Decided to study whilst visiting Australia – Second student visa application – Evidence of course enrolment – Good academic record – No migration history of concern – Credible witness – Strong ties to home country – Husband and children in Australia – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 500.212, 500.611

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 6 April 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 14 February 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 delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia as a student.

   BACKGROUND AND INFORMATION BEFORE THE TRIBUNAL  

   Department Application

4. The applicant is a citizen of Malaysia, married and has four children. She arrived in Australia on 22 September 2016 on a Visitor visa.

5. The applicant applied for the visa in order to undertake study in a Certificate IV and Diploma in Leadership and Management at the Crown Institute of Business and Technology until 17 February 2019.

6. In a statement in support of her application the applicant set out the following relevant information;

   i.She had not undertaken any further education since she completed high school in Malaysia. She started work instead of engaging in further study. She currently works in a construction company as a clerk, but her job is not easy and she found that her academic background was not sufficient to support her in harder tasks. She had tried also to apply for a management job and her academic background has become an obstacle. For this reason she has decided to undertake study in management.

   ii.Australia is an English speaking country close to Malaysia It was also secure and friendly. Additionally, it has a population of Malaysians which would help her to meet more friends.

   iii.After she finishes her studies she hopes to find a job in a multi-national company in Malaysia. These companies attach importance to their employee’s education and English level. She believed that study in management could improve her professional knowledge as well as English language ability.

   iv.Although she could study in Malaysia, she had chosen Australia as it known for its high educational qualities and standards. Additionally she could improve her English at the same time.

   v.She hopes to find a more relaxing job at management level so that she would have more time to spend with her children. She can also apply what she has learned to assist her children with their education and English.

7. In their decision, a copy of which the applicant has submitted to the Tribunal, the delegate provide the following reasons for the refusal of the visa;

   i.The applicant arrived in Australia on a Visitor visa on 26 November 2016.  In her incoming passenger card she had set out that the purpose of her visit was for holidays and that she would stay only six days.  She now intended to undertake study for a two year period. The delegate was not satisfied that someone travelling as a tourist and leaving their family for would make such a significant change from their original intention of a six day holiday.

   ii.It was considered that the applicant’s intention to study would have taken greater planning and preparation. Further, on her incoming passenger card she had stated that she was a housewife and this was not consistent with her claim in support of this application that she was a clerk in a construction company. It was considered that the behaviour was not consistent with a genuine student to seek a change in career pathway so soon after arriving in Australia.

   Tribunal Application

8. At the Tribunal hearing the applicant provided a further submission addressing the visa criteria, a copy of a Certificate of Completion of her Certificate IV in Leadership and Management and academic transcript, a letter confirming her ongoing enrolment from the Crown Institute, and interim academic transcript for her current Diploma in Leadership and Management.

9. The applicant appeared before the Tribunal on 25 July 2018 to give evidence and present arguments.

10. The applicant was assisted in relation to the review by their registered migration agent, although her agent did not attend the hearing.

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

    RELEVANT LAW, CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 satisfies cl. 500.212.

13. 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.

14. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

15. The applicant provided submissions that it was her initial intention to stay in Australia for only a week in Melbourne, however once she arrived she became in contact with another friend Mary, who lived in Sydney and was studying. The applicant claimed that she took time to also travel and stay with this friends and this also opened up the potential for her to study in Australia with her friend’s support.  The applicant decided to stay in Australia longer, she discussed the matter with her family and some months later decided to apply for the student visa. Regarding her claim in her incoming passenger card that she was a housewife and the perceived inconsistency with her claims to the Department that she worked as a clerk in a construction company; the applicant provided evidence that the construction company had closed down in the months prior to her travel to Australia. This was the first job she had after a considerable time spent raising her children. The applicant submitted that she was unemployed at the time of her travel, as she had not obtained further employment and she considered that she had accurately described herself as a housewife.  The Tribunal acknowledges that the applicant has provided an explanation for the concerns raised by the delegate.

16. The Tribunal also acknowledges that the applicant has maintained her enrolment and has provided evidence that she has undertaken and completed one of her courses, the Certificate IV in Leadership and Management. The letter of support from her education Provider, the Crown Institute of Business and Technology confirms that she has successfully completed all units that she has enrolled in so far in her Diploma, has an attendance rate of 82.5% and is up to date with all her tuition fees. This is the general expectation of applicants in Australia on a student visa.

17. As to the value of the course to the applicant’s future, she does not currently hold any post-secondary school qualifications. The applicant discussed her former employment as a clerk in a construction company, which she described as basic administrative duties. The Tribunal has some concerns as to why the applicant could not reasonably undertake the course in her home country. However, it has considered her submission was that she needed to have something additional to other younger, new graduates when applying for further jobs. It is accepted that re-entering the workforce at her age, having spent time off raising children, the applicant would benefit from well-recognised international qualifications. The Tribunal is also mindful that this should be balanced against the time away from her family and expense of international studies, in circumstances where the applicant claims to have four dependent children with educational expenses. 

18. The applicant has strong personal ties to her home country, in the form of her husband and four school aged children. It is accepted that they would be a significant incentive for her to return upon the completion of her studies. The applicant has not returned since her arrival in November 2016, the applicant claimed that she was informed by her agent she could not do so on her bridging visa. The applicant raised several matters during the hearing relating to advice she had received from her agent, it was noted that the submissions she had prepared and provided to her agent were not submitted prior to the hearing despite her instructions. From the evidence presented by the applicant it appeared from that there were deficiencies in the representation she anticipated receiving, and the Tribunal accepts the reasons that the applicant has presented for not returning to while on a bridging visa. The applicant and her husband do not own any property in Malaysia, they lived with her in-laws.

19. The applicant claimed that there were no circumstances of civil or political unrest that would act as an inducement for her to remain in Australia.

20. As to the applicant’s circumstances in Australia, there is no evidence that she has any family in Australia. She does have a close friend, Mary who is providing her with accommodation and supporting other living expenses. There is no evidence that the applicant has entered into any other relationship while in Australia. The applicant claimed that she was not working, as she understood that she could not do so on her bridging visa.  The Tribunal had concerns that the applicant did have incentives to remain in Australia for purposes other than study, however it is acknowledged that she demonstrated through submissions from her education provider, and in her evidence, that she is engaged in and progressing through her chosen courses.

21. This is the first student visa of the applicant, and she first arrived in Australia in November 2016. Although she lodged her student visa application onshore after arriving on a visitor visa, she did not contravene any migration law. There is no evidence that she has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation. The Tribunal is not satisfied that there is a migration history of concern.

22. Therefore having considered the particular circumstances of the applicant in accordance with the relevant criteria in Direction 69, the Tribunal considers that the strong family ties of the applicant to her home country demonstrate that she will remain in Australia temporarily. She is undertaking the study for which she had sought the visa, and the circumstances the Tribunal is prepared to give the applicant the benefit of the doubt

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. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8535 (limited visa entitlement), 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

26. The applicant has provided an undertaking to comply with any conditions the subject of which the visa is granted in her application form. There is no evidence to demonstrate that this would not be the case. The applicant had given evidence to the Tribunal at the hearing that she was complying with the conditions of her bridging visa.

27. 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?

28. 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)).

29. There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.

30. 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.

31. 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.

    DECISION

32. 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.

    Penelope Hunter
    Member