Dai (Migration)

[2022] AATA 1430

Dai (Migration) [2022] AATA 1430 (2 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms CuiSheng Dai
Mr Kok Shyong Lui

CASE NUMBER:  2115025

HOME AFFAIRS REFERENCE(S):          BCC2020/1355641

MEMBER:Vanessa Plain

DATE:2 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 visa:

·cl 500.212 of Schedule 2 to the Regulations

The Tribunal remits the applications for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 500 visa:

·cl 500.311 of Schedule 2 to the Regulations

Statement made on 02 May 2022 at 4:28pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary entrant as student – evidence of enrolments – changed migration intentions – property and business ownership in Malaysia – COVID-19 travel restrictions – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cls 500.212, 500.311; r 1.03

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 Home Affairs to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 12 April 2020. The delegate refused to grant the visas on 14 October 2021.

2. A review of the delegate’s decision record reveals that the delegate made their decision on the basis that evidence of:

   ·The dependant’s applicant’s business ownership  

   ·An investigation into study options in home country

   ·Financial circumstances in home country

   ·A demonstrated knowledge of course contents, educational outcomes and visa conditions

   ·An explanation as to why an Australian qualification would assist him in achieving his career goals by comparison to a qualification that could be obtained in the applicant’s home country 

   ·Research into employment opportunities

   ·A statement from the applicant addressing the genuine temporary entrant criterion 

   was not provided as required to satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a subclass 500 student visa.

3. The delegate’s decision record reveals that the applicant is a Malaysian woman who first arrived in Australia utilizing a tourist visa in March 2020.   The delegate attributed weight to the fact that the applicant’s spouse is accompanying her in Australia as being a factor which may dissuade her from returning home at the completion of her studies.  The delegate was also concerned that the applicant changed her migration intentions after arriving in Australia utilizing a tourist visa.       

4. The applicants appeared before the Tribunal on 2 May 2022 to give evidence and present arguments.

5. In advance of the hearing, the Tribunal received the following documents:

   • COE for an Advanced Diploma of Leadership and Management

   ·    Signed GTE statement

   ·    Response to request for student visa information (s 359(2) of the Act)

   ·    Deed of title for property in Malaysia

   ·    Business registration for restaurant

   ·    Research into management employment opportunities (including salary)

6. At the hearing, the applicant stated that she changed her migration intentions after arriving to visit her family because she could not leave the country due to COVID-19, so she enrolled in an English course which she completed, a Diploma of Leadership and Management which she completed and is now studying the Advanced Diploma which she believes will assist her in the hospitality management sector.  Her husband must return home because he owns a business in Malaysia which he is required to manage.  This is the applicant’s first student visa application.  

7. The Tribunal finds that the applicant is not utilising the student migration program to obtain long term residency.  The evidence before the Tribunal clearly establishes that the applicant has, since changing her migration intention, attended class and progressed academically and is now well on the way to completing her course by early 2024.  This would bring his time in Australia to approximately 4 years which is not an unduly long period of time.      

8. The Tribunal places significant weight upon the documents produced by the applicant in advance of the hearing.  The substance of the documents plainly establishes that the applicant and her husband have an economic reason to return home in the form of their restaurant business, the applicant has researched the job market in her home country, has financial ties to her home country and has demonstrated the value of the course to her future by producing research into the expected salaries on offer for graduates with management qualifications.  These are strong indicators of a genuine student who intends genuinely to stay in Australia temporarily for the purposes of study. 

9. The Tribunal further finds that the applicant has reasonably demonstrated the value of the course to her future to an extent that outweighs the current cost of completing the course.  It is further satisfied that the applicant is aware of her visa conditions and does not have an adverse immigration history in Australia.

10. The applicant and her spouse were married in 2015.  On that basis, the Tribunal is satisfied that the dependant applicants meet cl 500.311 of the Regulations.      

11. In light of the new evidence received and the findings set out above, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

    DECISION

12. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 visa:

    ·cl 500.212 of Schedule 2 to the Regulations

13. The Tribunal remits the application for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 500 visa:

    ·cl 500.311 of Schedule 2 to the Regulations

    Vanessa Plain
    Member