Lim (Migration)

[2018] AATA 5422

Lim (Migration) [2018] AATA 5422 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jia Shin Lim

CASE NUMBER:  1614994

DIBP REFERENCE(S):  BCC2016/2189399

MEMBER:Michael Ison

DATE:7 November 2018

PLACE OF DECISION:  Melbourne

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 570 Independent ELICOS Sector visa:

·cl.570.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 07 November 2018 at 12:43pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 570 (Independent ELICOS Sector) – genuine temporary entrant – credible witness – financial and family circumstances in home country – study intentions – studying at a very low level – consistent progression – career plans – teach traditional Malay and western music – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 570.223

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 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 is Miss Jia Shin Lim who is a 20 year old Malaysian national.

3. Miss Lim applied for the visa on 28 June 2016. The delegate decided to refuse to grant the visa on 2 September 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

4. The delegate refused to grant the visa because Miss Lim did not satisfy the requirements of cl.570.223(1)(a) of Schedule 2 to the Regulations as the delegate found that Miss Lim did not respond to the Department’s requests for information which is not consistent with the behaviour of a genuine student and the delegate was not satisfied that the ELICOS courses Miss Lim proposed to study would significantly increase Miss Lim’s career prospects or remuneration upon her return to her home country. As a result, the delegate found Miss Lim was not a genuine student but is using the Student visa program to maintain ongoing residence in Australia.

5. Miss Lim appeared before the Tribunal on 26 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. Miss Lim was represented in relation to the review by her registered migration agent Mr Min Hu of Dyson & Associates.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Having regard to the Miss Lim’s current course of study, a Certificate IV in EAL (Further Study), the relevant subclass in this case is Subclass 570 Independent ELICOS sector. ELICOS stands for English Intensive Courses for Overseas Students.

9. The issue in the present case is whether Miss Lim meets the time of decision criterion in cl.570.223. Clause 570.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)the Minister is satisfied that 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)…

10. In considering whether Miss Lim satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

11. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

12. The delegate refused Miss Lim’s application approximately 9 weeks after Miss Lim applied for the Student visa.

13. Since the delegate’s decision, Miss Lim has completed the following study:

    ·Certificate I in EAL – 5 September 2016 to 19 March 2017;

    ·Certificate II in EAL – 10 April 2017 to 22 October 2017;

    ·Certificate III in EAL – 27 November 2017 to 10 June 2018.

14. At the time of hearing Miss Lim was studying her Certificate III in EAL. At the time of this decision Miss Lim is studying her Certificate IV in EAL, which is due to conclude on 27 January 2019.

15. The Tribunal informed Miss Lim about her Provider Registration and International Student Management System (PRISMS) record in accordance with the procedure under s.359AA of the Act, including explaining to Miss Lim the relevance of the information in PRISMS to her application before the Tribunal was that the information showed she is studying at a very low level indicating she is using the Student visa program to maintain residence in Australia rather than genuinely to stay temporarily.

16. The Tribunal also explained to Miss Lim the consequence of the Tribunal relying on her PRISMS information is that it would be the reason, or a part of the reason, to affirm the decision under review. Miss Lim was offered additional time to consider that information before responding to or commenting upon it. Miss Lim did not request an adjournment.

17. The Tribunal also discussed Miss Lim’s movement records with Miss Lim but did not follow the procedure under s.359AA of the Act. The Tribunal did not consider the information in Miss Lim’s movement records would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review.

18. Miss Lim’s evidence to the Tribunal may be summarised as follows:

    ·Her parents and older brother remain in Malaysia where they have a very comfortable standard of living and there are no impediments to Miss Lim returning to Malaysia;

    ·When she returns to Malaysia she will live with her parents;

    ·She does not have any relatives or anyone else close here in Australia;

    ·She lives with a friend’s sister and two other friends in Australia in a share house and they are all students, sharing the cost of the rent, food and bills;

    ·Her family is covering all of her financial costs in Australia and Miss Lim is not working;

    ·She normally socialises at home with her friends from Malaysia and class mates, going online for piano lessons and playing electronic piano;

    ·A Buddhist, Miss Lim does not worship regularly or attend a temple;

    ·She does not play any sport and is not a member of any community or social groups in Australia;

    ·She came to Australia because as an English speaking country she felt learning English here would be more authentic so she is motivated to learn here;

    ·Started her study at the Certificate I and II level because she had only low level English from her schooling in Malaysia and has found her study to date neither too easy nor too hard;

    ·Her plan is to complete her English studies and return to Malaysia and then come back to Australia to study music so she can return to teach music in Malaysia;

    ·She holds the view that overseas qualifications are more valued in Malaysia than local qualifications and will assist her to secure a job and to be paid at a higher level;

    ·Her plan is to complete her English studies, study a Diploma of Music Industry and then return to Malaysia to work in one of

    … Malaysia’s best international music colleges, which require English speaking employees, and work as a music teacher because I have a passion for music, and I enjoy working with children.[1]

    [1] Miss Lim’s undated Genuine, Temporary Entrant statement sent to the Tribunal by Mr Hu on 23 February 2018, Tribunal file, folio 48.

    She intends to teach both traditional Malay music and western music;

    ·Miss Lim in her GTE statement sent to the Tribunal on 23 February 2018 also stated:

    I want my English to be as fluent and grammatically correct as possible for my future students to understand me best, so I believe learning English from native speakers in Australia will ensure that my English skills are very good. I also want to study my music course in Australia because Australia has a very high standard of education and music courses offered in Australia focus on the musical and teaching aspects rather than the financial and business side as music courses do in Malaysia. For me, I care more about helping my students enjoy music rather than how to make profit off them (sic). Receiving a renowned qualification from a modern and thriving country like Australia will help me be recognised and increase my employability in Malaysia.

    … I am determined to return to Malaysia and immediately find work at a prestigious international music college so that I can share my love of music and teach international students about beautiful traditional Malaysian music, as well as contemporary and modern music styles that I will experience from living in Australia.[2]

    ·Is of the view that it would be very hard for her to pursue music teaching by studying in Malaysia and relying on Malaysian qualifications;

    ·Arrived in Australia on 11 May 2016 on an Electronic Travel Authority (Subclass 601) visa that was valid to 11 August 2016 and then applied for the Student visa on 28 June 2016;

    ·Had “long ago” thought about studying in Australia but only decided to apply to become a student here when she came to visit on her visitor visa and liked the living and learning environment here, feeling she would be able to live and learn here happily;

    ·Did explain to her parents before leaving Malaysia that she would be looking at the learning environment and if she liked it might stay to study music because it is what she likes, even though her parents wanted her to study business;

    ·Gave evidence that when she rang her parents from Australia to say she wanted to stay and study it was still “a little bit of a shock” to them but they were and remain supportive; and

    ·Has not travelled home because she has been focussed on completing her English studies and researching and contacting colleges about potential Diploma of Music Industry courses, which she had not chosen at the time of hearing;

    ·Acknowledged that she may need to do further study of teaching qualifications to be able to teach in Malaysia;

    ·Has not travelled to any other countries or had any adverse immigration finding made against her other than the refusal to grant the Student visa that is the subject of this review.

    [2] Tribunal file, folio 48.

19. The Tribunal accepts this evidence. The Tribunal found Miss Lim to be an open and honest witness. The Tribunal did not find Miss Lim’s evidence of her study and career plan to be the most convincing plan but accepts that it is a plan she genuinely holds and so far has adhered to in terms of completing her study successfully and on time.

20. Since the delegate’s decision Miss Lim has completed each course she has enrolled in sequentially and without delay or any cancellations. While this may reflect in part the very low level Miss Lim commenced her study at, she has now completed up to Certificate III level and has commenced her Certificate IV as scheduled. This indicates to the Tribunal Miss Lim has a very effective understanding of what is required to live and study successfully in Australia and sufficient knowledge of her education provider and courses that the Tribunal expects she will complete her Certificate IV successfully and on time.

21. The remaining question for the Tribunal was whether Miss Lim will return to Malaysia at the end of her studies in Australia. When giving evidence to the Tribunal it appeared to the Tribunal that Miss Lim has a comfortable life in Malaysia and has considerable incentive to return as all her family are in Malaysia and her career prospects are in Malaysia, not Australia. The Tribunal accepts Miss Lim’s evidence of her desire to teach both traditional Malay and western music, which is likely to only be a viable career option in Malaysia.

22. It was not evident to the Tribunal that Miss Lim, having arrived in Australia in May 2016, has considerable incentive to remain in Australia. She does not appear yet to have established significant social connections here, at least not to the extent they would outweigh her connections to Malaysia, she does not have a financial incentive to stay as she is not working and does not yet appear to have become entrenched in an Australian way of life as she may do if she was here for many years.

    Conclusion

23. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that Miss Lim intends genuinely to stay in Australia temporarily. Accordingly, Miss Lim meets cl.570.223(1)(a).

24. As the Tribunal has found Miss Lim meets the requirement of cl.570.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

25. 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 570 Independent ELICOS Sector visa:

    ·         cl.570.223(1)(a) of Schedule 2 to the Regulations.

    Michael Ison
    Senior Member