Foh (Migration)
[2020] AATA 2085
•26 February 2020
Foh (Migration) [2020] AATA 2085 (26 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Ms Pui Sin Foh
Mr Kar Yu TanCASE NUMBER: 1820999
HOME AFFAIRS REFERENCE(S): BCC2018/2176262
MEMBER:Peter Booth
DATE:26 February 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.
Statement made on 26 February 2020 at 10:47am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as a student – applicant deferred course and returned to Malaysia – direct family and financial ties to home country – applicant’s plans to commence a business – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 500.212, 500.311
STATEMENT OF DECISION AND REASONSAPPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 July 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 20 May 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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.
The delegate in this case refused to grant the visas 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 applicant was not a genuine temporary entrant.
The applicants appeared before the Tribunal on 24 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 genuine temporary entrant.
Genuine applicant for entry and stay as a student (cl.500.212)
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 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, which is attached to this decision, 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 applicant gave evidence at the hearing the substance of which was as follows. The applicant had read the decision of the delegate dated 9 July 2018 refusing her application for a student visa. The applicant understood that the issue for determination was whether she was a genuine temporary entrant.
The applicant is currently studying a certificate in commercial cookery which started on 19 August 2019. The applicant produced a confirmation of enrolment document in that respect. Whilst the confirmation of enrolment document records an anticipated course end date of 19 April 2020, the applicant said that this had been extended until May 2020 because she had returned to Malaysia for one month. In that regard the Tribunal’s attention was drawn to a letter from the education provider approving the deferral from 15 January 2020 to 14 February 2020. The applicant’s migration agent pointed out that whilst the date of this letter was 20 January 2019, this must be a typographical error having regard to the period of extension. The Tribunal accepts that the applicant has successfully deferred this course for a period of one month. The applicant is also enrolled to study a diploma of hospitality management commencing in May 2020 and which is expected to be completed by 8 November 2020. She produced a confirmation of enrolment document in that regard. She confirmed that she is intends to study this course.
The applicant arrived in Australia “in 2018, February”. She was unable to be more precise. She gave evidence that she held a “tourist” visa at that time and that she intended to stay in Australia “about two weeks”. The purpose of this visit she told the Tribunal was to visit her husband. She said that she arrived in Australia and enjoyed the environment, and with the help of an education agent identified courses which she would like to study.
Prior to arriving in Australia the applicant had completed a bachelor of management (tourism) and had been employed by her father in an amusement park business which he operates in Malaysia. She said that she earned approximately AU$20,000 annually.
She returned to Malaysia in May 2019 for three weeks, in January 2020 for four weeks and also, apparently, in 2016 and 2017. She did not inform the Tribunal of the duration of those trips. She has also, since arriving in Australia, visited Singapore in 2019 for seven days and Bangkok in 2016 for six days.
The applicant applied for a student visa on 20 May 2018. She informed the Tribunal that between 15 January 2016 and 20 May 2018 she had “travelled” within Australia. She informed the Tribunal that she commenced looking for appropriate courses in “April 2018”.
She was enrolled in a diploma of leadership and management but did not commence it, she was also enrolled in an advanced diploma of leadership and management but did not commence it. She completed a certificate III in commercial cookery between August 2018 and August 2019 and is presently studying a certificate IV in commercial cookery due to be concluded in May 2020. She intends to commence a diploma of hospitality management which will be completed in November 2020.
When asked as to her employment intentions when she returns to Malaysia she said “I want to have my own business, my own restaurant, food and beverage”. She estimated her income in that regard to be between AU$3500 and AU$5000 each month.
The applicant said that she could complete the current certificate in cookery and the diploma of hospitality management in Malaysia. She is not currently employed and informed the Tribunal that she has not been employed in Australia. She is being financially supported by “my family and husband”. The husband is employed as a waiter in Australia and earns approximately $400 each week.
The applicant’s family in Malaysia comprise her sister and brother. The applicant’s family in Australia comprise her husband and sister. The applicant’s third sister resides in Singapore.
The applicant owns property in Malaysia which she estimated to be worth approximately AU$150,000. She has savings of approximately AU$25,000.
The applicant had also provided a document titled “GTE statement” dated 7 November 2019. It is broadly consistent with her evidence at the hearing and has been taken into account.
The applicant’s migration agent was invited to make submissions. He made general submissions based upon the applicant’s oral evidence in which has been taken into account. The Tribunal notes that the migration agent had also provided two written submissions, dated 7 November 2019 and 14 February 2020 respectively. These have been taken into account and given appropriate weight.
In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl.500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether she has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in her home country. The applicant is married and is from Malaysia. The applicant has provided evidence of social, direct family and financial ties to her home country or other economic incentives to return. When considering the applicant’s circumstances in her home country, the Tribunal therefore finds that she has been able to demonstrate ties to act as an incentive to return to her home country at the completion of the proposed study. The Tribunal is satisfied that there is a significant incentive for the applicant to return to Malaysia.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia in “February 2018” as a holder of a tourist visa. Prior to the expiry of the tourist visa, in early 2018 the applicant applied for a student visa. The Tribunal accepts that the applicant formed the view that she would benefit from study in Australia. The Tribunal notes that her current courses will be completed in November 2020.
The Tribunal does place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country.
The Tribunal has had regard to whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.
The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.
The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in her home country relative to her potential circumstances in Australia.
On balance, the Tribunal is satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student.
Aside from evidence referred to above, there is no further evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; 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; circumstances in Malaysia relative to Australia or any other country; and the applicant’s circumstances in Malaysia relative to others in that country.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.500.212(a).
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.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be remitted with a direction that the applicant satisfies the criteria in cl.500.212 of Schedule 2 to the Regulations.
As the Tribunal has found that the primary applicant does meet the requirements of cl.500.212, this means that the secondary applicant satisfies the requirements of cl.500.311.
DECISION
The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
· cl.500.212 of Schedule 2 to the Regulations.
Peter Booth
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
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Judicial Review
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Procedural Fairness
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