LOO (Migration)

[2019] AATA 3034

LOO (Migration) [2019] AATA 3034 (4 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms MEE LING LOO
Mr CHIAN CHIAN SIEW

CASE NUMBER:  1707215

HOME AFFAIRS REFERENCE(S):          BCC2017/495504

MEMBER:Meredith Jackson

DATE:4 June 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 04 June 2019 at 2:35pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–genuine temporary entrant criterion not met – no significant incentive to return home – using student visa to maintain ongoing residence – credibility concerns –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218, 500.311

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 21 March 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2.    The applicants applied for the visas on 7 February 2017. 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.

3. 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 delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.

4.    The applicants appeared before the Tribunal on 1 May 2015 to give evidence and present arguments.

5.    The applicants were assisted in relation to the review by their registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 primary applicant is a genuine applicant for entry and stay as a student.

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

8. 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?

9. 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.

1. 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.

Case summary

1. The primary applicant (the applicant) is Ms Mee Ling Loo, a 35 year-old citizen of Malaysia who first came to Australia on 26 December 2016 on a visitor visa. She stated on entry that she intended a stay for a holiday and to visit family for no longer than two months. On 7 February 2017, while still onshore, Ms Loo applied for the student visa under review to study in the English language sector for the purpose of improving her English. She completed two English courses in a year, and then enrolled in a Certificate II in Business and then in a Certificate III in Business. She plans to do a Diploma of Leadership and Management after that. She claims that once she has completed the diploma course, she and her husband will return to Malaysia, where her 12 year old son is getting ready for high school. Ms Loo’s husband is included on the visa application as a secondary applicant.

Written evidence considered

1. The Tribunal has considered written submissions provided by the applicant in relation to:

   a.The delegate’s decision;

   b.Her personal circumstances, financial circumstances and history;

   c.Her enrolments;

   d.A company registered in her husband’s name in Malaysia; a title deed in the names of the applicant and her husband;

   e.Her identity; her husband’s identity, their marriage certificate; birth certificate for their son; vehicle registration;

   f.Academic transcripts for English certificates attained.

The hearing

1. The applicant asked to address the Tribunal directly and rely on the interpreter as required. The Tribunal agreed to the request.

2. The Tribunal, under section 359AA of the Act, referred the applicant to information about her held in the Provider Registration and International Student Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision.

3. The Tribunal outlined the information in the database, which captures a chronological record of the applicant’s academic history in Australia: her enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and the applicant was invited to comment on it. The Tribunal asked the applicant if she wished to seek further time to consider it. After she had studied the record the applicant said she was prepared to comment on the information at that point and said she understood it and why it was relevant to her case.

4. The applicant stated at hearing:

   a.She chose to come to Australia to look for suitable “schools” (institutions), it was not just a holiday it was a search for a school because she was thinking she needed to study here;

   b.By comparison, study in Malaysia is not very active; in response to the Tribunal’s question regarding opportunities to study in Malaysia: She did not consider Australian campuses in Malaysia because she could acquire better English in Australia and the business schools in Australia are among the best in the world;

   c.Prior to arriving in Australia she worked in Singapore for 10 years but her husband had a business in Malaysia and she needed to go back there and help;

   d.Her parents and her 12 year-old son were still in Malaysia;

   e.After she finishes her business diploma in August 2020 she plans to return to Malaysia and start a new business utilising her new skills;

   f.In response to the Tribunal’s question concerning an initial cancelled course: When she first came to Australia she enrolled in an English course but wanted a holiday and to look around Australia, so she delayed the start of the course to February 2017; she has since studied on a visitor visa or a bridging visa;

   g.The reason to study business as well as English is that she and her husband had run a coffee shop in Malaysia but lost the business because the operating income was not very good because she lacked business skill and knowledge; she needed to study business to improve her business management and she also wanted to study a Diploma of Leadership and Management for that purpose;

   h.She intended to open another coffee shop in Malaysia and needed a Diploma of Leadership and Management because her last enterprise had run into problems with business regulations;

   i.In response to the Tribunal noting that she had arrived in December 2016 and would not go home until August 2020, asking why such a big investment of time and resources was justified and whether she planned to study at a higher level: she would be ready to go home after her business diploma;

   j.She had a plan for a new business, it would be her own shop, without a business partner; her husband would do the cooking and she would run the bar;

   k.She had not returned home to Malaysia since arriving in Australia in 2016 because of study commitments but she called her family regularly;

   l.She was not working in Australia; her husband supported her and she had savings of approximately AUD 257,000 in Malaysia (evidence provided); and her husband was still involved in the business in Malaysia;

   m.She had a niece in Australia but no other family here; in Malaysia she had her son, parents, and her husband’s family;

   n.She had strong ties to Malaysia and needed to be there to support her son start high school and her parents needed her because they were ageing;

   o.Taking three and a half years to gain the highest qualification of diploma was satisfactory for her; a diploma was an achievement as she only had high school education prior to studying in Australia.

Conclusions

1. The Tribunal has considered the applicant’s evidence against the specified factors in Direction 69, including the applicant’s migration history, study history, reasons for choosing her courses, the value the courses she has studied to her future; her family circumstances and her economic circumstances in Australia and Malaysia. It concludes the following.

2. The applicant stated to the Tribunal at the hearing that she came to Australia to research suitable schools in which she might study. She acknowledges she came on a visitor visa in 2016 but told the hearing when this was put to her, it was for the purpose of choosing the right institution. The delegate’s decision, provided to the Tribunal by the applicant, records that on entry to Australia she stated that she intended to take a holiday and visit friends here and would stay for no more than two months. Within eight weeks of arrival, on 7 February 2017 the applicant applied for the student visa under review. The visa application included her husband, Mr Chian Chian Siew as a secondary applicant. The application did not include their 12 year old son who remains in Malaysia in the care of the applicant’s mother. The applicant has not returned to Malaysia in the two and a half years since arrival. The applicant told the Tribunal at the hearing that after she completes her diploma course she will return to Malaysia to apply her prospective and current Australian qualifications to a new business. The Tribunal notes that the applicant did not disguise for the Tribunal her intent in coming to Australia on a visitor visa but proceeding to study. She stated frankly at the hearing that she arrived in to Australia for the purposes of selecting an institution, not tourism. The Tribunal has taken this openness into account, but considers frankness at the hearing does not outweigh the reality that the applicant, on her evidence, came to Australia for a purpose other than that for which she was granted the visitor visa: namely, to select an education provider and commence studying. In other words the applicant came for a two month holiday, has not been home, has stayed for two and a half years and plans to stay for at least 15 months further. For the Tribunal, this migration record undermines the credibility of the applicant’s evidence in relation to whether she genuinely intends to return home at the end of her studies, and undermines her status as a genuine temporary entrant. The Tribunal weighs these considerations against the applicant in considering its decision.

3. The applicant states that if granted the visa, she will complete her current enrolments and not seek a further course. This will culminate in a Diploma of Leadership and Management completion in August 2020. The Tribunal notes that the costs of studying in Australia are high. Based on the specifications in the relevant instrument (IMMI 18/010) for the financial capacity requirement for a student, by the time the applicant finished her studies, she would have invested in excess of AUD 100,000 in living expenses for two people, tuition fees for award courses (thus not including her English language courses) and travel costs for home journeys. Her highest attainment over three and half years, for this investment, would be a diploma level qualification. While the Tribunal accepts such qualifications might be useful to the applicant’s business interests, the return on such an investment, in a Malaysian business context, is not well established by the applicant. Added to this, the applicant has stated to the Tribunal that the family business is not doing well and this is a disincentive to return to Malaysia. The applicant has not provided the Tribunal with a business plan for her proposed new business venture in Malaysia. Instead she has stated that she and her husband will open a restaurant or coffee shop. It will have no external partner, her husband will do the cooking and she will do beverage work and run the business, but no detailed plan has been put before the Tribunal. The applicant has provided evidence that she and her husband have accrued in excess of AUD 250,000 in savings in Malaysia. Despite having a young child who lives in Malaysia, she has not been home for a visit. The Tribunal considers these combined factors indicate the applicant is potentially planning to extend her stay in Australia to work or invest in a business here, relying on their savings to become established. The Tribunal put the potential for remaining in Australia to the applicant. She responded that she will return to Malaysia after her last course is completed. The Tribunal weighs these considerations against the applicant in reaching its decision.

4. Taking all the above into account, the Tribunal is not persuaded that the applicant intends a temporary stay in Australia or that she will return to Malaysia at the end of her diploma course, as she states. Rather, it concludes that she has used the visitor visa program, and is now seeking to use the student visa program, to prolong her stay in Australia. The Tribunal concludes the applicant is not a genuine temporary entrant as envisaged by the Regulations.

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

Does the applicant intend to comply with visa conditions?

1. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

2. 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.

3. 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.

Secondary applicant

1. The entitlement of the second named applicant, Chian Chian Siew to a visa is initially dependent on whether the primary applicant is the holder of a visa, having satisfied the primary criteria for that visa, and then on whether he as the second named applicant meets any additional visa criteria applicable (cl.500.311). As the primary applicant does not satisfy the criteria for the grant of a Subclass 500 (Student) visa (cl.500.212), Mr Siew cannot satisfy cl.500.311.

DECISION

1. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Meredith Jackson
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.

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

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.