MOHAMAD NOH (Migration)

[2018] AATA 5818

MOHAMAD NOH (Migration) [2018] AATA 5818 (10 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nor Hafikah MOHAMAD NOH
Mr Mohamad Sumadi Bin Zulkifly
Mr Muhammad Arash Haidar

CASE NUMBER:  1710374

HOME AFFAIRS REFERENCE(S):           BCC2017/606634

MEMBER:Stephen Conwell

DATE:10 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 500 (Student) visa:

· cl.500.212 of Schedule 2 to the Regulations.

Statement made on 10 December 2018 at 5:15pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – genuine desire to change career direction – early childhood studies – diligent student – incentive to return home – business owner – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 5 May 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 14 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 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 it was determined that the genuine temporary entrant criterion was not met.

4. The applicant was assisted in relation to the review by their registered migration agent. The Tribunal hearing was held on 14 August 2018. The applicant participated in the hearing by telephone attendance to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Malay and English languages

5. A copy of the decision record accompanied the application to the Tribunal. The decision record included an examination of the applicant’s study and visa history in Australia. 

6. Where used in this decision:

   a.COE refers to Confirmation of Enrolment;

   b.VET refers to Vocational Education and Training;

   c.The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection); and

   d.‘Direction 69’ or ‘the Direction’ refer 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.

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

   Background

8. The applicant is a 29-year-old citizen of Malaysia who was granted an Electronic Travel Authority (class UD subclass 601) visa offshore on 16 July 2015. She first arrived in Australia on 15 August 2015.  After the applicant had several Tourist (sub-class 600) visas invalidated, she departed Australia on 8 June 2016.

9. On 24 October 2016 the applicant obtained another an Electronic Travel Authority (class UD subclass 976) visa offshore, returning to Australia on 28 October 2016.

10. By email of 17 July 2018 the applicant’s representative provided a GTE Statement dated 13 July 2018 and supporting documents (including COEs) to the Tribunal for consideration. The representative also provided a covering letter dated 16 August 2018 attaching proof of the adult applicants’ ownership of a business in Malaysia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 is a genuine applicant for entry and stay as a student.

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

12. 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.

    Summary of the delegate’s decision

13. According to the decision record:

    ·       The applicant’s most recent entry into Australia was on 28 October 2016 on an Electronic Travel Authority (subclass 976), claiming to intend to stay for three months to visit friends and relatives.

    ·       She was granted a subclass 600 Tourist visa on 11 January 2017 and a month later applied for a Student (subclass 500) visa on 14 February 2017.

    ·       Prior to her arrival in Australia, the applicant had studied ‘computer systems and support for 18 months in her home country of Malaysia.

    ·       The delegate gave weight to the original purpose of the applicant’s visit and concluded that her decision to enrol in study whilst onshore would have taken greater planning and preparation before her arrival in Australia.

    ·       The delegate was not satisfied that the applicant had demonstrated a “clear and substantial improvement” arising from her proposed study to outweigh “significant time and monetary commitment” which this study would require.

    ·       After weighing up evidence the delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily. 

14. The Tribunal has reviewed all the above material.

    Does the applicant intend genuinely to stay in Australia temporarily?

15. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction 69. 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.

16. 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.

17. The applicant’s GTE Statement dated 13 July 2018 (in summary):

    ·suggests that the applicant came to a decision to study whilst in Australia during discussions with her husband’s half-sister who resides here.

    ·addresses Direction 69 and its factors which decision-makers must have regard to.

18. The applicant provided appropriate supporting documentation (including COE for her courses of study) to the Tribunal.

19. The Tribunal has considered the decision record.

20. The Tribunal concurs with the delegate that a person travelling as a tourist for a visit of a short duration, would not make such a significant change from their initial intent of a three month holiday without a great degree of planning and preparation prior to entering Australia. The Tribunal finds that the applicant has been less than candid in her responses to the Department concerning the nature and period of her visit to Australia

    The applicant’s circumstances in the home country

21. The Tribunal has regard to the applicant’s circumstances in Malaysia.  The applicant claims that both her family and her husband’s family are financially well off and happy to support the applicants during their stay and study in Australia. Her mother and five siblings live in Malaysia and are a strong incentive for her to return there upon completion of her studies. However the Tribunal notes that the applicant’s immediate family, comprised of her husband and young child, are in Australia and are dependent visa applicants.

22. The applicant submitted evidence of joint ownership of a business in Malaysia, ‘SNH Resource’ with a widely described business activity including (but not limited to), ‘sale of food and drink; purchase of marine produce; cleaning of buildings and offices, and of rivers, beaches, dams etc.; garbage collection, interior decoration, sale of clothes, provision of medical supplies …”

23. The applicant confirmed that there were no adverse reasons pertaining to the following factors indicated by Direction 69 that would prevent her from returning to Malaysia and the Tribunal makes no findings against the applicant based on:

    ·    any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;

    ·    circumstances in the home country relative to Australia or any other country;  or

    ·    the applicant’s circumstances in the home country relative to others in that country.

24. The Tribunal is of the view the applicant's personal and business ties may serve as a significant incentive for her and her family to wish to return permanently to the home country, however this is counter-balanced by the fact that she and her immediate family are together in Australia. The Tribunal therefore gives no weight to the applicant’s circumstances in the home country, either in favour of or adverse to, the applicant.

    The applicant’s potential circumstances in Australia

25. The Tribunal has regard to the applicant’s potential circumstances in Australia. The applicant's economic circumstances in Australia appear to be comfortable; the applicant husband’s mother and half-sister live in Australia and visiting them was purportedly the main reason for the applicants coming to Australia. 

26. Although the applicants are onshore as a family the applicant claims that with the exception of their son attending school, they have not forged close business, sporting or community ties such as might be an incentive for them to wish to remain in Australia indefinitely. 

27. The Tribunal is of the view the applicant's family, social and economic circumstances in Australia, since arriving in October 2016 might offer an incentive for the applicants to seek to maintain ongoing residence indefinitely, however this is counter-balanced by the applicant’s business and wider family ties back in Malaysia. 

28. The Tribunal therefore gives no weight to the applicant’s circumstances in the home country, either in favour of or adverse to, the applicant.

    The value of the course to the applicant’s future

29. The Tribunal has regard to the value of the course to the applicant’s future. The applicant had studied ‘Computer Systems and Support’ for 18 months in her home country of Malaysia however whilst onshore on a tourist visa she decided to enrol in English language and Early Childhood studies, claiming to desire a career in that field.

30. As contemplated by Direction 69, it is open to Student visa holders to change their minds and therefore their study options relating to career and academic objectives. The Tribunal accepts that the applicant has expressed a genuine desire to change her career direction from computer systems to early childhood studies - a significant change of direction which nevertheless appears to be genuine.

31. There is nothing in the Schedule 2 criteria which prevents a visa applicant from applying to enrol in study whilst they are in Australia holding a Visitor Visa (provided they are not holding a Visitor Visa under the Sponsored Family stream or Approved Destination Status stream. Instrument IMMI 16/016 contains the full list of visa that prevents an applicant from making a valid application for a subclass 500 visa onshore). The review applicant’s application for a Student visa does not come within the list of visas mentioned in IMMI 16/016.

32. The Tribunal gives weight to the applicant’s research into the childcare sector in Malaysia and her potential career within it, as set out in the submission made in support of her GTE Statement. On balance the Tribunal is prepared to give the applicant the benefit of the doubt and give weight in favour of the applicant, based upon the value of her current studies to her stated career goal to open her own childcare centre in Malaysia upon her return there.

    The applicant’s immigration history

33. The applicant has been candid about her protracted visa history in Australia, however she contends that she has complied with all visa conditions and made lawful visa applications as have been available to her.  She originally came to Australia in 2015, but her most recent visit was on a Tourist visa in October 2016; whilst she represented on her visa entry forms that she intended to stay only three months, she enrolled in study and is now proposing to stay almost four years since her October 2016 arrival.

34. The Tribunal has considered the applicant’s explanation of why she chose to apply for a Student visa after intending to remain in Australia for approximately three months.  The Tribunal finds that it is likely that the applicants engaged in more planning and preparation prior to arriving in Australia than is presently admitted to. 

35. However having enrolled in studies, the applicant has pursued them diligently, including whilst she is on a Bridging visa. Whilst the applicant may have been less than candid about the reasons for her coming to Australia, the Tribunal finds that she has been diligent in her studies and appears to be pursuing them with all due speed. The Tribunal gives weight to the fact that since her most recent arrival in October 2016 she has continued her studies even whilst on a Bridging visa.

36. The applicant has confirmed in her sworn evidence (and there is no evidence before the Tribunal to suggest otherwise) that neither she nor her husband have applied for a permanent visa or other visa to Australia or other countries or have an adverse immigration record.

37. Notwithstanding the invalidating of her previous two Tourist visas, the Tribunal gives weight in favour of the applicant for her immigration record.

    Any other relevant matters

38. There are no other relevant matters.

39. It is contended that the Applicant meets the genuine temporary entrant criterion. Notwithstanding that her husband and son are onshore with her, the Tribunal accepts that she has family ties and economic ties to her home country that would serve as a incentive to return Malaysia upon completion of her studies; she also has sufficient funds to support her stay and study in Australia and her English and early childcare studies should benefit her future career in that sector, upon her return to Malaysia.

40. The Tribunal has assessed the above application for a Student visa against the criteria set out in cl.500.212 and has had regard to the factors set out in Direction 69.

41. On balance the Tribunal is prepared to accept that the applicant is a genuine student and genuine temporary entrant. During the time of review application, the applicant has continued her studies and is on schedule to complete her final diploma in Early Childhood Education and Care in May 2020.

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

    Conclusion on cl.500.212

43. 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.

44. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the Tribunal remits the decision under review for reconsideration.

    Dependent applicants

45. The delegate also refused the visas of the secondary applicants, Mr Mohamad Sumadi Bin Zulkifly  and Muhammad Arash Haider on the basis of the refusal of the primary applicant's visa.

46. By email of 13 November 2018 the applicant’s representative advised the Tribunal that the omission of the dependent applicants was an oversight and requested that they be included in the Tribunal’s decision. The Tribunal accepts that the secondary applicants were inadvertently omitted from the merits review application. It is therefore willing to include both secondary applicants in its decision.

47. As the Tribunal is remitting the application, it is appropriate for the delegate to consider the secondary criteria on remittal.

    DECISION

48. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 500 (Student) visa:

    · cl.500.212 of Schedule 2 to the Regulations.

    Stephen Conwell
    Member