Lim (Migration)

[2017] AATA 2239

Lim (Migration) [2017] AATA 2239 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yun Min Lim

CASE NUMBER:  1608449

DIBP REFERENCE(S):  BCC2016/793440

MEMBER:Mark Bishop

DATE:13 November 2017

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 573 Higher Education Sector visa:

·cl.573.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 13 November 2017 at 8:17am

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa – Genuine Temporary Entrant – Linkage between degrees – Family and employment ties in Malaysia

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule, cl 573.223

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 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 to the Department of Immigration for the visa on 25 February 2016. The delegate decided to refuse to grant the visa on 2 June 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).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied the applicant intended to stay genuinely in Australia temporarily.

4. The applicant appeared before the Tribunal on 30 October 2017 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent.

6. For the following reasons the Tribunal has concluded the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573.

8. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(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)     …

9. In considering whether the applicant 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.

10. 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.

11. The applicant provided a copy of the decision record to the Tribunal.

12. The Tribunal wrote to the applicant on 13 October 2017 requesting the applicant provide the following information (1) A copy of a current Certificate of Enrolment (COE) (2) Documents that showed the applicant was currently enrolled in a course (3) Documents that show past studies in Australia, attendance certificates, academic transcripts and certificates of completion and (4) An explanation of any gaps in enrolments and relevant documentary evidence.

13. The applicant fully complied with this request and supplied all relevant documentation.

14. The applicant provided a COE that showed she was currently enrolled in a Masters of Property at RMIT.

15. The applicant provided documents relating to past studies in Australia

    oCOE certificate #7C392372 – RMIT dated 17 February 2016 – confirming applicant’s enrolment in Master of Property  (course start date 29/01/2016 to end date 31/12/2017)

    oCOE letter from Curtin University Student Service Centre dated 8 June 2016

    oAcademic transcript from Curtin University  Bachelor of Applied Science (Architectural Science issued 21 January 2016 confirming the applicant’s results for 2013, 2014, and 2015)

    oCurtin University Bachelor of Applied Science Award certificate

16. The applicant provided a statement addressing the GTE (genuine temporary entrant) criterion.

17. The Tribunal gives weight to all of the above material as it demonstrates the applicant has been in Australia for the purpose of enrolling in and completing two degrees at both undergraduate and graduate level in fields that are closely related. Both of these enrolments were in the higher education sector, high cost, sequential and clearly related in terms of career development.

18. The Tribunal also gives weight to the fact the applicant passed all subjects without repetition or failure and clearly was a diligent student.

19. The decision maker stated the applicant was in Australia “…as the primary holder of a student visa from 1 January 2015 to 28 February 2016 without enrolment in a course of study” and that no evidence was provided of attempts to enrol in another course of study after the completion of her Bachelor of Applied Science.

20. The Tribunal would normally give weight to this evidence against the applicant having an intention to genuinely stay in Australia temporarily. However in this case the applicant was enrolled during this period and did upload to her ImmiAccount evidence of her Bachelor of Applied Science (Architectural Science), graduation pack from Curtin University and COE for her Masters of Property.

21. Evidence of these matters was attached to the statement of the applicant and examined by the Tribunal.

22. The applicant further stated she was unable to get a copy of her academic transcript and proof of completion of Bachelor of Applied Science before Christmas for RMIT to confirm her full acceptance of her RMIT enrolment offer, as Curtin University was closed for a long Christmas and New Year break. The tribunal gives weight to this evidence as it shows an intention to genuinely stay in Australia temporarily.

23. The applicant obtained her academic transcript on Curtin University’s graduation day (13 February 2016),  arrived in Melbourne on 15 February 2016, submitted the documents to RMIT on 17 February 2016, RMIT issued a COE on 17 February and  RMIT processed her application.

24. The Tribunal has considered this time-lime of events and views it as entirely reasonable. It shows the applicant at all times sought to make her continuing enrolment in Melbourne a priority. The Tribunal doubts the applicant could have done any more. The Tribunal gives weight to this evidence as it shows an intention to genuinely stay in Australia temporarily.

25. The applicant in her statement addressed the reasons for seeking to enrol in a Masters of Property at RMIT after graduation from Curtin University. After graduation from Curtin University the applicant stated she wished to pursue a career in Real Estate Property Valuation. This was because she had experienced employment in a real estate firm in Malaysia and had an offer of work in property valuation in Malaysia after graduation from her Masters in Property.

26. The applicant provided extensive evidence of course linkage from her undergraduate degree to the Masters of Property. The applicant submitted an understanding of architecture would be of value when valuing, planning, or determining feasibility of property.

27. The Tribunal has considered this submission and accepts there is indeed such a linkage between the 2 degrees. Further the Tribunal accepts an understanding of architectural theorems, policies and practices would be of value in an essentially property valuation degree. The Tribunal gives weight to this evidence.

28. The applicant went onto make detailed submissions concerning the relevance of Ministerial Direction Number 53. In particular the applicant addressed, as relevant, Part 2 Directions cl 9 (a) (b) and (c) of Ministerial Direction Number 53.

29. In respect of cl 9 (a) the applicant submitted she had researched RMIT in Melbourne as being a reputable University of high international standing to complete her Masters of Property and that a similar qualification with a University in Malaysia with an equivalent international reputation was not available. The applicant’s desire or motive to study at a University with “an international reputation” is entirely reasonable and the Tribunal gives it weight.

30. In respect of cl 9 (b) the applicant submitted she intends to return to Malaysia upon completion of her Masters of Property qualifications in December 2017 and intends to take up work as a property valuer within a family business or open her own investment business. The Tribunal notes this desire is clear evidence of family and employment ties to Malaysia and acts as a significant incentive to return home. The Tribunal gives weight to this material.

31. In respect of cl 9 (c) the applicant submitted she had significant incentive to return to her home country  as her Aunt had been providing financial support  to her during her time studying in Australia  with the vision of the applicant returning to her mother  and to work within the family business. The applicant stated she feels indebted to her Aunt for financial support to date and wishes to be close to her family members and have their emotional, physical and financial support.

32. The Tribunal has had regard to the outline of the applicant’s family circumstances and employment prospects in Malaysia. They are clearly relevant and the Tribunal gives them weight.

33. The applicant has successfully completed her undergraduate degree, and has almost completed a closely related postgraduate degree. There is no evidence that the student visa program is being used to circumvent the intentions of the migration program (cl.11 (b)).  At all times the applicant has conducted herself properly and lawfully.

34. Hence the Tribunal gives weight to the applicant’s previous visa history and previous study history in determining that the applicant does intend to continue her studies in Australia temporarily by completing her Masters of Property at RMIT.

35. The Departmental file contains a copy of a letter from RMIT dated 28 August 2015 offering the applicant a (conditional) place in the Master of Property course (Df: 22).The Tribunal file contains a COE for the period 2 March 2015 until 27 November 2015 (Tf: 16). The applicant provided a statement and appropriate supporting documentation that she was the primary holder of a student visa from 1 January 2015 until 28 February 2016. (Tf: 51). The applicant held the appropriate Bridging visa from 26 February 2016 which was granted on 17 October 2016.The applicant concluded her undergraduate studies on 27 November 2015.

36. The applicant flew to Melbourne on 27 November 2015 to attempt to settle her application at RMIT (Tf: 51). This was not possible because Curtin University had not finalised course transcripts and graduation certificates at that time.

37. The Applicant returned to her home country on 18 December 2015, came back to Australia on 7 February 2016, attended her graduation ceremony at Curtin University on 13 February 2016, arrived in Melbourne on 15 February 2016, submitted relevant documentation to RMIT on 17 February 2016 and  RMIT issued a COE on 17 February 2016. The Tribunal notes the COE issued by RMIT had a creation date of 17 February 2016 at the foot of the page.

38. The Tribunal has had regard to cl.11 (a) (b) and (c). The Tribunal notes the applicant has departed and returned to Australia on 12 occasions at least from February 2012-May 2017. Generally the departure time relates to university breaks between semesters and over holiday periods. The Tribunal notes the applicant visits family and engages in work in a family company. Further the Tribunal notes the applicant has close ties to different members of her family who sponsor her in Australia, financially support her in Australia and effectively act as mentors.

39. The applicant clearly has strong ties to her home country. There is no evidence the student visa program is being used to circumvent the intentions of the migration program. There is no evidence the applicant has any family or community ties to Australia which present as a strong incentive to remain in Australia. There is no evidence the student visa program is being used to maintain ongoing residence. The Tribunal gives weight to these matters in cl.11.

40. The Tribunal has considered this  gap in enrolment in the period 28 November 2015-!6 February 2017 The Tribunal considers it to be short, unavoidable, not intentional and explicable in the circumstances as outlined in paragraphs 22-24.

41. The Tribunal also has regard to the time line discussed in paragraphs 35, 36 and 37 above. The Tribunal finds that the applicant at all times conducted herself as a genuine temporary entrant with circumstances that support a genuine intention to enter and remain in Australia temporarily.

42. On the basis of the above, and having considered the applicant’s circumstances in Australia and Malaysia, her immigration history, family and employment incentives to return to Malaysia, her study history in Australia and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.573.223(1)(a).

43. As the Tribunal has found the applicant meets the requirement of cl.573.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

44. 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 573 Higher Education Sector visa:

    ·cl.573.223(1)(a) of Schedule 2 to the Regulations.

    Mark Bishop
    Member