Chin (Migration)
[2019] AATA 1811
•17 April 2019
Chin (Migration) [2019] AATA 1811 (17 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Pui Kuan Chin
CASE NUMBER: 1719568
HOME AFFAIRS REFERENCE(S): BCC2017/1899854
MEMBER:T. Quinn
DATE:17 April 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 17 April 2019 at 11:31am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine temporary entrant – arrived on Electronic Travel Authority – declared travelling for holiday – applied for student visa onshore – visa sought to maintain residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347, 359, 360, 363, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the delegate’) on 9 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa on 29 May 2017 (‘the application’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 9 August 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 28 August 2017, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.
The applicant was assisted in relation to the review by their registered migration agent.
More than 17 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of his application for review. To this end, on 17 January 2019, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting her to provide information in writing about the course(s) of study the applicant was undertaking and her entry and stay in Australia as a student (‘the s359(2) letter’). The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed date, being 31 January 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 she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act.
The review applicant did not provide the information within the prescribed period or otherwise and no extension of time was requested. Where a review applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action.[1]
[1] Pursuant to section 359C(1) of the Act.
The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the review applicant is not entitled to appear before the Tribunal. The effect of section 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.[2]
[2] Hasran v MIAC [2010] FCAFC 40.
The Tribunal, therefore, has no additional information relating to the applicant’s visa application beyond that which was before the delegate on 9 August 2017 and is otherwise discernible from the delegate’s decision and Department file.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
The Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicant to the Department but without taking further steps to obtain the additional information sought by this Tribunal under section 359(2) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
STATUTORY FRAMEWORK
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.
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?
In considering whether the applicant satisfies clause 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’ (‘the Direction’), made under section 499 of the Act. The 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.
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.
The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[3] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.
[3]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant in this case is a 37 year old female Malaysian citizen who first arrived in Australia on 6 April 2017 on an Electronic Travel Authority (ETA) visa (UD-601) which was valid until 6 July 2017.[4] The delegate states that on her incoming passenger card, the applicant declared that she was intending a stay in Australia for a period of five days for a holiday and that her occupation was a housewife. So far as the Tribunal can ascertain from the material before it, it appears the applicant has not departed Australia since 6 April 2017.[5]
[4] See delegate’s decision.
[5] See delegate’s decision.
Prior to coming to Australia, the applicant completed secondary school at Perak Girls School in Malaysia and has stayed home as a housewife to help her family and husband since January 2002.[6] She states she ‘gained so much international experience with my husband business in Malaysia so that studying business is my familiar subject and Australian qualification and English skills to be the keys of opening the door of Australian market for my family business’ such that she now wishes ‘to pick up study to help my family international business’.[7]
[6] See Department File pages 50-51.
[7] See Department File page 51.
The applicant’s application was to undertake Certificates II, III and IV in EAL followed by a Certificate IV in Business, taking her to October 2019, being a total of two and a half years onshore from the date from the date of the applicant’s initial arrival for a holiday.[8] There is insufficient evidence before the Tribunal to ascertain whether the applicant commenced the proposed study or any other study. The Tribunal therefore cannot conclude further in relation to the applicant’s academic progress in Australia but does note that if she proceeded with her plan, all EAL courses would have been completed by the date of the Tribunal’s decision.
[8]See delegate’s decision which reflects material submitted by the applicant in the Department file in relation to her proposed studies.
In her genuine temporary entrant statement titled ‘GTE STATEMENT’[9] (‘the GTE’), the applicant reiterates the claims that she wishes to obtain English and business skills to assist her husband in his international business in Malaysia. The applicant does not provide information about the said business, such as what specific industry it operates in, what goods or services are sold or her past and intended future role within the business. The applicant outlines how the skills she will obtain from the English studies and business certificate could apply to an international business generally and the sorts of roles she could obtain using the qualifications. Although the applicant’s submissions demonstrate, and the Tribunal accepts, that the courses proposed appear consistent with her current level of education and relevant to her past and proposed future employment, they are very general. Whilst the Tribunal accepts that any international business will be assisted and is likely to improve its income if the individuals running the business are able to speak English and have business education, it considers that insufficient information has been proffered by the applicant, especially in relation to the particular business and her specific future plans within the business, for the Tribunal to be able to properly assess how it will assist her improve her employment prospects in her home country and how it would impact the remuneration she could expect to receive using the qualifications gained. This issue is aggravated by the failure of the applicant to provide updated information in response to the s359(2) letter, resulting in a lack of evidence before the Tribunal to indicate whether the applicant is or has been studying the proposed courses over the last two years.
[9] See pages 30-31 of Department File.
The applicant has indicated she has her husband’s financial support and that at the time of her application in 2017 she was unemployed.[10] The Tribunal accepts this. There is limited other evidence before the Tribunal in relation to the applicant’s economic circumstances in Australia or Malaysia. The Tribunal notes that the United Nations Human Development Index ranks Malaysia as 57th in the world as compared to Australia’s ranking of 3rd in the world.[11] The Tribunal considers that the applicant’s economic circumstances in Australia relative to Malaysia may present as a significant incentive for her not to return.
[10]See page 50 Department File.
[11]See Table 1 at page 32 of United Nations’ Human Development Indices and Indicators 2018 Statistical Update <>
The applicant states she is living with friends in Australia[12] but puts forward very little other material regarding her personal ties to Australia. The Tribunal therefore cannot assess whether the applicant’s ties with Australia present as a strong incentive for her to remain and gives this factor no weight for or against the applicant.
[12] See page 50 of Department File.
The Tribunal notes that the applicant has her parents, a brother and her spouse in Malaysia.[13] In the GTE, despite the lack of detail about the business, the applicant focusses a lot on her husband’s business and the priority family has in her life. The Tribunal accepts that the applicant’s family members serve as a significant incentive for the applicant to return to her home country.
[13] See pages 46-49 of the Department File.
The applicant details the value of the Australian education system in the GTE and how the quality of education is higher in Australia and her reasons for choosing the particular course provider, having been recommended by friends. The Tribunal accepts the applicant’s submissions in this regard and considers the applicant’s reasons for not undertaking her proposed course in Malaysia are reasonable and that she has undertaken an adequate level of research into her proposed course provider and courses of study.
Outside of the travel to Australia described above, there is no evidence before the Tribunal that the applicant has had any travel, visa or immigration issues in the past. The Tribunal places weight in the applicant’s favour in this regard.
The Tribunal has not been provided with information regarding the following factors indicated by Direction 69: 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 and the applicant’s circumstances in Malaysia relative to others in that country. Accordingly, these factors have no bearing, either favourable or unfavourable, in the present application for review.
The Tribunal notes that given the delays in this matter coming before it, if the applicant has engaged with her studies as proposed she ought now to have finished all studies in English and could, to a significant degree (particularly considering she has had some 15 years’ experience in her husband’s business prior to arriving in Australia), return to Malaysia, reunite with her family and put into motion her plan to assist her husband in his international business.
The applicant’s application and submissions do not provide sufficient detail, nor is there sufficient evidence before the Tribunal, to satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily. In making this comment, the Tribunal places weight on the way in which the applicant made the application (arriving on a UD-601 visa and declaring she was travelling for a holiday and then applying for the student visa). It would appear to the Tribunal that if the applicant was a genuine student she would have applied for a student visa in the first instance, rather than arriving on a UD-601 visa and later applying for a student visa, particularly given the planning and preparation necessary for such a lengthy stay to study in another country. The Tribunal finds that the visa is being sought primarily to maintain residence in Australia.
Having had regard to the applicant’s circumstances, her immigration history and all other relevant matters, the Tribunal cannot be satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant does not meet clause 500.212.
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. Therefore, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
T. Quinn
MemberAttachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton
Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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