Lam (Migration)

[2018] AATA 3763

Lam (Migration) [2018] AATA 3763 (8 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ooi Fun Lam

CASE NUMBER:  1710591

HOME AFFAIRS REFERENCE(S):           BCC2016/4307966

MEMBER:Mark Bishop

DATE:8 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 08 August 2018 at 8:59am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine Temporary Entrant – Completed high school education in home country – Discontinued further study due to mocking attitudes – Family ties in Australia – Economic circumstances – Completed low levels courses – No proof of tuition fee payment – Lack of specifics of job offer – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
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 Immigration and Border Protection on 4 May 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 20 December 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 7 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

   Genuine applicant for entry and stay as a student (cl.500.212)

7. 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?

8. 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 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.

9. 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.

10. The applicant provided statements to the Department as follows:

    GTE statement (in visa application, Df 21): The applicant has visited Australia before and enjoyed her time here.

    ·English has always been a weakness when talking with people of different nationalities. She has previously owned a restaurant with her husband but has now sold the business. She claims the need for qualifications to be competitive in future. She looks forward to studying again, previously only completed high school.

    ·She decided to study in Australia due to world-class facilities and institutes. The chosen college is close to the city. It has a creative and innovative approach to business education.  In Australia, this is the key to competitiveness in a dynamic and global economy. She will also benefit from cultural diversity.

    The Tribunal asked the applicant where she had copied the above. The applicant advised she used google translation from an unspecified site from Chinese to English. The applicant advised she could not provide any further detail s to the specifics of this site.

    The Tribunal asked how the location of the college in being close to the city helped as he lived at Broadmeadows. The applicant advised she now lived in Heidelberg and had lived there since June.

    ·Claims Australian qualification will give her a competitive edge over Malaysian students when getting into the business industry or starting another business.

    GTE statement (provided in response to request for more information, Df 41)

    ·Reasons for choosing course: entered the business world without formal qualifications and learned through experience.
    
    Initial business with husband maintaining cars moved into wholesaling of tyres and making small adjustments/improvements to cars. She sold her business because it was not doing well and moved into food industry.
    
    She started a small eatery, Fun Fun Restaurant. For five years, was involved in food preparation, customer service and accounting.
    
    Having only completed Year 12 so far, believes proposed study will benefit future job prospects or ability to start another business, marketing and managing staff.

    ·Reasons for choosing education provider: after visiting Barkly International College and meeting some of the staff, she was pleased with facilities, friendliness of staff and student activities on offer. In addition, it was conveniently located.

    ·Reasons for studying in Australia rather than Malaysia: restated reasons provided in visa application.

    ·Planned living arrangements in Australia: rented a house in Broadmeadows with her husband and sharing with another friend who is also studying.

    ·Relevance of course to future career or employment prospects: wants to apply for a job in an international company or start another business in Malaysia in food or automotive industry. Makes reference to previous experience in these industries.

    ·Economic circumstances in Malaysia: sold business and seeking further qualifications in order to return and start another business. Applicant’s parents are caring for her children while she is studying. Claims proposed study is necessary to obtain good paying job or start another small business.

    The Tribunal inquired how often she returned home. The applicant advised she had not returned to Malaysia since initial arrival in Australia.

11. of the decision record to the Tribunal. It outlined the following:

    ·Applicant completed equivalent of Year 12 in Malaysia in 1995 and was self-employed from 2003.

    ·From January 2011 to November 2016, the applicant owned and ran her own restaurant.

    ·The applicant did not provide any evidence of previous business activities.

    ·The applicant stated that she is looking forward to studying again. The delegate gave little weight to this statement, as the applicant did not demonstrate any effort in furthering education since completing high school in 1995.

    ·Value of  the course to applicant’s future. The applicant claimed the proposed courses would enable her to seek employment with international companies or start a family business in the food or automotive industries. She did not provide evidence of employment opportunities in her home country or practical benefits of undertaking proposed study compared to experience in owning and managing small businesses since 2003. The delegate was not satisfied that significant financial cost of studying in Australia was justified, considering the applicant had the option of pursuing career goals in Malaysia.

    ·Circumstances in home country relative to potential circumstances in Australia: The applicant declared children and other immediate family members in Malaysia. The delegate notes that applicant could add her children and husband to her Student visa application in the future. The delegate gave weight to comparatively greater economic opportunities in Australia. The delegate was concerned the applicant’s intention to live in Australia was motivated by factors other than study.

    ·Applicant’s immigration history: The applicant has not departed Australia since arrival on 9 December 2016 as holder of a Visitor UD-601 visa. The applicant provided inconsistent information on her incoming passenger card:

    a.She declared her intended stay of 35 days to visit friends or relatives. The delegate was concerned with veracity of declaration considering the current application was lodged 11 days later on 20 December 2016.

    b.Declared usual occupation as ‘Life Insurance Agent’, inconsistent with information provided in Student visa application.

12. On 20 July the Tribunal wrote to the applicant requesting she provide the following information at least 7 days prior to the hearing:

    · A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of a student visa.

    ·       Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

    ·       We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.

    Please provide a written statement addressing the issue of whether you are a    genuine applicant

13. The applicant did not provide a statement to the Tribunal.

14. The applicant provided Certificates of Graduation and course transcript for completed courses in a Certificate IV in Marketing and Communication and Business Administration.

15. The Tribunal inquired if the applicant could provide proof of payment of tuition fees for her enrolment in a Diploma of Leadership and Management that commenced in July 2018. The applicant advised she could not provide such evidence.

16. The applicant was granted a Bridging visa A on 3 May 2017. Condition 8101 was attached to the visa. Condition 8101 reads “The holder must not engage in work in Australia”. The applicant advised the Tribunal she was not engaged in paid employment in Australia. Her husband is resident in Malaysia and is employed in Malaysia. In her absence he looks after the family and her children in Malaysia

17. The Tribunal inquired as to her living arrangements in Australia. The applicant advised she lived with her sister and brother-in-law and their three children. The applicant advised her living costs in Australia were covered by her sister.

18. The Tribunal considers Ministerial Direction Number 69 (MD69).

19. The Tribunal considers Cl.9 and 10 of MD69 the applicant’s circumstances in her home country.

20. The applicant advised she had not studied in Malaysia because the age cohort at her educational institution was significantly younger and teachers and students alike had mocked her. Shed did not provide any evidence of complaints to relevant authorities about this alleged behaviour. She did not provide any evidence that indicated this mocking was isolated, constant or repeated. She did not provide any detail of the nature of the mocking. She did not provide any detail of the institution/s in which the alleged mocking occurred. She did not provide any evidence of seeking counselling or professional assistance over what she alleged was an event so serious she ceased studying and came to Australia many years later. She advised she came to Australia to be with her sister. She advised her critical role in Australia had been to help in her sisters’ home and assist with the raising of her sister’ children. The applicant advised the Tribunal her husband and three children aged 23, 15 and 5, were living in Malaysia. Her husband owns a successful restaurant and various other enterprises. Her husband’s family is rich and her husband has already inherited most of the family assets. The applicant advised she was comfortably well off and had independent finance and income. The applicant advised she had a superior lifestyle in Malaysia. She came to Australia to enjoy the experience and study in a different atmosphere.

21. The applicant is a 41 year old woman with significant personal, family and business ties to her home country. The applicant is a capable, motivated, intelligent and experienced business-woman with considerable experience in owing and running enterprises in Malaysia. She advised she had no military service obligations in her home country and was not aware of any political or civil unrest. To date the applicant has enrolled and completed a set of low cost short duration courses that enable he to maintain residence in Australia.

22. The Tribunal acknowledges the applicant has significant ties to her home country. The applicant has family and business interests in her home country. The applicant has chosen to leave them to stay with her sister in Australia whilst she pursues low level VET courses.

23. The applicant has not advanced sound reasons for not undertaking the study in her home country. In evidence the applicant did not relate her completed Certificate level studies to possible work in Malaysia. The Tribunal is not persuaded the applicant’s personal ties to Malaysia serve as a significant incentive to return to her home country. The applicant did not express any concern as to the administration or management of various family enterprises, businesses or companies in her home country. Tuition fees if required were remitted from her home country. The Tribunal is not persuaded the economic circumstances of the applicant present as a significant inventive to return to her home country.

24. The Tribunal considers Cl.11 of MD69 the applicant’s potential circumstances in Australia.

25. The applicant advised she lived with her sister and brother-in-law and their three children aged 5, 1 and newly born. The applicant advised her sister had a full time job and that child care was very expensive in Australia (over $500 per week) The applicant advised she looked after the three children including washing and grooming the children, taking them to school or other appointments during the day as appropriate, supervising the younger children during the day, meal preparation and household cleaning functions. In essence the applicant advised she was engaged in providing extensive assistance to her sister and her sister’s family whilst she resided with them at no cost and pursued study interests. The applicant advised she was a housekeeper and child carer for her sister whilst she resided in Australia.

26. The Tribunal is of the view the applicant has ties with Australia that present as a strong incentive to remain in Australia. These ties are family ties. The Tribunal is inclined to the view the applicant is using the Student visa program to circumvent the intentions of the migration program and to maintain ongoing residence in Australia.

27. The Tribunal considers Cl. 12 of MD69 the value of the course to the applicant’s future.

28. The applicant advised the Tribunal she had completed high school in her home country, had sometime enrolled in further education and discontinued this education because of the mocking attitude of other student and education authorities in Malaysia. The applicant advised she had not returned to Malaysia since December 2016 and had not sought variation to her visa to permit occasional country return. The applicant provided an offer of employment in Malaysia to commence in August 2019 after the completion of her Diploma of Leadership and Management. The applicant advised the job offer came from a division of a company that employed her husband. The applicant advised her level of contact with the offeror company had been a video link-up. The applicant advised she had not returned to Malaysia for a formal job interview. The applicant advised she had been recommended to the owner of the company by her husband. The applicant was not able to provide any detail as to the specifics of the proposed job. The applicant did not relate her proposed job to her enrolment in a Diploma level course for the next twelve months except to say it would help her to categorise documents. The applicant was vague on the job detail, the job specifications, her exact responsibilities and her role in the future. The Tribunal is not inclined to give the offer of a job much weight.

29. The Tribunal considers Cl.13 and 14 of MD69 the applicant’s immigration history.

30. The applicant advised of regular trips to parts of Asia for holidays. She advised she had always complied with visas that permitted her to enter other counties. She advised she had not held a visa that had been cancelled or considered for cancellation. She advised she had travelled to other countries and always complied with relevant immigration law. The applicant has been in Australia continuously since December 2018. She advised the Tribunal she had not left Australia in that time. She has completed two minor Certificate level courses in the VET sector in that time. She seeks to continue residency in Australia for another twelve months at least. She advised the Tribunal she was unable to provide any proof of payment of tuition fees even though the course commencement date had passed. The Tribunal is inclined to the view the applicant is using the Student visa program primarily for maintaining ongoing residence.

31. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

    Conclusion on cl.500.212

32. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

33. 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. Accordingly, the decision under review must be affirmed.

    DECISION

1. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

   Mark Bishop
   Member