Kamaruddin (Migration)

[2019] AATA 4763

Kamaruddin (Migration) [2019] AATA 4763 (28 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Noor Safarina Kamaruddin

CASE NUMBER:  1826349

HOME AFFAIRS REFERENCE(S):           BCC2018/2843113

MEMBER:Damian Creedon

DATE:28 August 2019

PLACE OF DECISION:  Perth

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(a) of Schedule 2 to the Regulations.

Statement made on 28 August 2019 at 5:13pm

CATCHWORDS

MIGRATION – Student (Temporary)(Class TU) – Subclass 500 (Student) – genuine temporary entrant – wants to update qualifications – strong family ties – full time carer of father – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 22 August 2018 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 30 July 2018. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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(a).

2. 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?

1. 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.

2. 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.

Overview of evidence

1. The applicant is a 40-year-old Malaysian national who first arrived in Australia on DATE as the holder of a Visitor (UD976) visa.

2. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

3. The Tribunal also had before it a number of documents provided by the applicant.  Save as required for the purposes of this decision it is unnecessary to list these documents in detail.  Relevant documents will be referred to as required.

4. The applicant’s Provider Registration and International Student Management System (PRISMS) record shows that since her arrival onshore she had successfully completed the following courses (in addition to improving her English language proficiency):

Course Name	Date Commenced	Date Completed
Certificate III in Information, Digital Media and Technology	18/07/2018	07/12/2018
Certificate IV in Information Technology Networking	04/02/2019	05/07/2019

1. PRISMS also records that the applicant is presently enrolled in a Diploma of Information Technology Networking which she commenced on 22 July 2019 and is scheduled to complete on 3 July 2020

2. The applicant appeared before the Tribunal on 27 August 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.  Where relevant, the applicant’s evidence to the Tribunal is referred to in its analysis below.

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

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

Analysis and findings

1. The Tribunal found the applicant to be a credible and truthful witness who, where possible, supported her oral statements with documentary evidence.  The Tribunal found the applicant’s oral evidence to be consistent throughout and in giving her evidence she did not convey an impression of concoction or recent invention.

2. The Tribunal discussed with the applicant her motive for undertaking study in Australia and her history as a student.  The applicant’s evidence was to the effect that, after finishing her secondary schooling in her home country, she completed a Bachelor’s degree in Information Technology (Multimedia) on 14 September 2002 from the Universiti Utara, Malaysia.  Despite this, the applicant’s written evidence to the Tribunal did not disclose any work experience in this field.  When asked about her work experience, the applicant explained to the Tribunal that, while she did commence work in the IT field after completing her studies in Penang, it was only for a short period as she had to return to her home town to act as a full-time carer for her father.  The applicant’s evidence was that, as there were no jobs in IT in her home town at that time, she was unable to work in her field of study.  Instead, she stated that she worked in a variety of menial jobs, with her main focus being to provide full-time care for her father.  The applicant provided this evidence candidly, and the Tribunal found it persuasive.  The Tribunal considers that it adequately addresses the Tribunal’s initial concerns as to the applicant’s lack of IT-related work experience. 

3. In respect of her present studies, the applicant stated that the opportunity arose for her to undertake studies while she was visiting her mother in Perth.  The applicant explained that her mother and father were divorced, and that her mother is an Australian permanent resident.[1]  The applicant’s evidence was to the effect that in the last 17 years the opportunities for IT-related employment in her home town have grown significantly with advancing technology.  The applicant stated that she is interested in working in the field, but felt it necessary to update her IT qualifications to take account of modern technology; accordingly, she enrolled in her current study pathway for the purpose.  As evidence of her commitment to her studies the applicant provided two references from her course lectures.  The first reference offers the following comments:

   [The applicant] has been attending North Metropolitan TAFE here at East Perth since February this year, completing a Certificate lV in lT Networking.

   I have had the pleasure of teaching this fine individual in four subjects all relating to Windows Server and the details surrounding Active Directory and Security. [The applicant] is always punctual for class and participates actively in class discussions surrounding class activities and assessments. She works well together with other class members in group situations and her written and oral skills are above average for this level of study. [The applicant] is self-motivated, polite and well-spoken she is capable of achieving any goal she sets her mind to.

   The second makes the following observations:

   This letter is to verify that [the applicant] has been a student of mine for a unit called: ICTICT418 Contribute to copyright, ethics and privacy in an ICT environment since February 6th of this year. Her classes are held at the East Perth Campus of North Metropolitan TAFE.  [The applicant] is an excellent student, having always attended and contributed positively to class activities. I anticipate she will be passing this unit.

   [1] The applicant’s movement records show that she has been a regular visitor to Australia to visit her mother since 2003.

4. The Tribunal accepts these references as evidence of the applicant’s commitment to her studies in Australia and further accepts that the applicant’s interest in, and aptitude for, her chosen field are not mere conjecture or invention.  Taken together with her bachelor’s degree the Tribunal accepts the relevance of the courses to her previous studies and, although they are at a lower level, the applicant’s explanation that they are by way of a ‘refresher’ for her previous studies some 17 years ago, and to update her skills in that field is both reasonable and persuasive.

5. In respect of her future career path, the applicant stated to the effect that she plans to return to her Malaysia at the conclusion of her studies to commence work in the IT sector in her home town.  The applicant explained that advances in technology in the recent years have led to the growth of the IT sector in her home town and, with it, opportunities for well-paid employment.  The applicant stated to the effect that these opportunities now mean that she can continue providing care for her father as well as working in her area of formal education.  The Tribunal found the applicant’s evidence in this regard to be candid and persuasive.  Based upon it the Tribunal accepts the relevance of the applicant’s chosen study pathway to her proposed future employment and is persuaded that it is likely to assist the applicant to obtain employment or improve her employment prospects in her home country.

6. The Tribunal discussed with the applicant her economic circumstances in, and ties to, her home country.  The applicant’s evidence is that her mother resides in Australia and her father in Malaysia.  The applicant provided the Tribunal with evidence that she is a tenant-in-common with her father in real property in Malaysia.  When pressed by the Tribunal, the applicant stated that her father is presently in the care of the family’s long term maid who, over the years, has become ‘one of the family’.  The applicant asserted that her father is a significant tie for her as she intends to return to Malaysia to work in the IT sector in her home town and to provide care and support for her father into his old age.  The applicant stated in her evidence that she was conscious that her mother was also aging, but that she felt the health care and support available to her mother in Australia was such that her father has the greater need for her in the future.  The Tribunal accepts the applicant’s evidence on this issue and is persuaded that the applicant’s ties to her home country are a significant incentive for her to return there at the conclusion of her studies.

7. As to the applicant’s present circumstances in Australia, her evidence is that her mother pays for her tuition fees and living expenses and that she was is not employed here.  This did not raise any concerns in Tribunal's mind that the applicant is seeking to build a career in Australia.  There is no evidence before the Tribunal that the applicant has sought to establish relationships in Australia inconsistent with those of a genuine student.  In all of the circumstances, the applicant’s evidence did not persuade the Tribunal that she has ties to Australia, either social or economic, sufficient to act as a strong incentive for her to remain in Australia at the conclusion of her studies.

8. There is no evidence before the Tribunal of any civil unrest or military service commitments in the applicant’s home country that would act as a clear incentive for the applicant to remain in Australia. There is also no evidence that the applicant, or a relative of the applicant, has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation.  Overall, the applicant’s immigration history does not raise concerns for the Tribunal. 

9. The Tribunal has had the benefit of speaking to the applicant which has enabled it to obtain more information regarding her circumstances and genuineness in the presentation of her evidence.  The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has previously completed the courses claimed in Australia, has said she will return home on completion of her studies, has strong family ties to her home country and all the other matters she has raised.

10. Overall the Tribunal is persuaded that the student visa programme is not being used by the applicant to circumvent the intentions of the migration programme.  For the reasons outlined above the Tribunal accepts that the applicant is undertaking her current study or future study for the reasons she claims.

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

12. 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.

13. 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

1. 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(a) of Schedule 2 to the Regulations.

Damian Creedon

Member

Attachment – 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.

1. 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).

2. 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.

3. 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.

4. 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

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. 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

1. 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.

2. 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

1. 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

1. 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

1. An applicant’s immigration history refers both to their visa and travel history.

2. 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

1. 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

1. 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.