Oktarina (Migration)

[2018] AATA 5420

Oktarina (Migration) [2018] AATA 5420 (5 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Lidia Oktarina
Mr Randy Saputra

CASE NUMBER:  1709988

HOME AFFAIRS REFERENCE(S):           BCC2017/653630

MEMBER:David Barker

DATE:5 November 2018

PLACE OF DECISION:  Sydney

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.

The Tribunal remits the application for Student (Temporary) (Class TU) visa for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.311

Statement made on 05 November 2018 at 9:14am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – credible witness – consistent academic progress – value of courses for family business in home country – medical needs of child – intention to comply with visa conditions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 17 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 there was insufficient evidence to demonstrate that the applicant is a genuine temporary entrant.

4. The applicants appeared before the Tribunal on 1 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

5. The applicants were assisted in relation to the review.

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

   BACKGROUND

7. The applicant is a national of Indonesia and is 30 years old.  The second named visa applicant, her husband, is also a national of Indonesia.  He is 29 years old.

8. The Department delegate’s decision record, a copy of which was provided with the review application states the applicant first arrived in Australia in July 2013, as the holder of a Subclass 573 Higher Education Sector student visa to study a General English course, followed by a Bachelor of Business.  She was subsequently in December 2014 granted a Subclass 572 visa, which was valid until March 2017 to study a Certificate III in Business, Certificate IV in Marketing, Diploma of Marketing and Advanced Diploma of Marketing.

9. The delegate noted that an examination of the applicant’s study history in the Provider Registration and International Student Management System (PRISMS) indicates that whilst the records showed she had finished the General English, Certificate III in Business, Diploma of Business and a Certificate IV in Marketing course, her enrolment in the Bachelor of Business was cancelled, as were further enrolments in an Advanced Diploma of Marketing, Advanced Diploma of Marketing and Communications, Certificate II in Accounts Administration and Certificate IV in Accounting.

10. The delegate noted that at the time of the visa application the applicant was proposing to study a Certificate III in Accounts Administration, Certificate IV in Accounting, Diploma of Accounting and Advanced Diploma of Accounting which were due for completion in April 2020.

11. In response to an invitation to the applicant from the Tribunal to provide documents or arguments she wished to rely on in his review, the applicant provided documentary evidence including, but not limited to: evidence of her current and past academic studies, untranslated documents, medical evidence regarding her pregnancy, medical evidence regarding health problems affecting her infant child and an employment offer letter.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 intends genuinely to stay in Australia temporarily.

    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?

13. 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.

14. 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.

15. I found the applicant to be a credible witness who gave her oral evidence in a calm, matter of fact manner without embellishment.  The applicant’s oral evidence is consistent with the written submissions and other documentary evidence that she has provided with her review application and I am satisfied weight can be placed on the applicants’ evidence.

16. The applicant gave evidence that in addition to the courses she has completed that are identified in the delegate’s decision, she has also completed the Certificate III and Certificate IV Accounting courses and in April 2008 commenced study in the Diploma of Accounting course.  She has provided documentary evidence which corroborates this claim.  The Tribunal has reviewed these records and is satisfied the applicant is making consistent progress on her current accounting vocational study pathway.

17. In relation to her study choices whilst she has been in Australia, the applicant gave evidence her intention was always to study accountancy, as this will give her skills to work in her elder brother’s business in her home country.  She said she enrolled in business courses initially, because she thought they would give her the sort of knowledge and skills that she required.  She said she changed the focus of her studies to marketing because she was attracted to that sort of course and her elder brother also encouraged her to skill up in that area so that she could apply modern marketing ideas in his business when she returns to Indonesia. She said that the employment offer letter she provided with her review application is from the business owned by her elder brother. She said it is a retail business with seven employees that sell groceries.  The Tribunal does not find the applicant’s explanation for her study choices to be fully convincing.  Whilst she has maintained an overall orientation towards study in courses that have relevance to working with her elder brother in Indonesia, it is not apparent why she did not study accounting from the offset, if as she claims this was always her primary focus.  The Tribunal is aware an offshore application for a higher education sector study pathway has at times provided a more viable pathway to approval for a student visa and is not convinced this did not account for the applicant’s initial course selections.

18. In relation to why she did not complete the package of courses leading to a higher education sector degree in business studies in which she initially enrolled, the applicant reiterated that her elder brother encouraged her to study to accounting. She said she did not consider it essential to gain a bachelor degree qualification, as she already gained a Bachelor of Architecture degree in Indonesia prior to her coming to Australia to study.  She said she did not work as an architect in Indonesia, but had looked into gaining some work with these qualifications in Australia, without success.

19. The applicant gave evidence she was employed as a fund raiser for the Appco group in Indonesia prior to her coming to Australia in 2013.  She said she would earn the equivalent of between $100 to $200 per week from this job. In relation to her and her husband’s paid employment in Australia and whether this provides them with an economic incentive to maintain their residency in Australia, the applicant said she initially worked at the fish market in Sydney for around two years and for the last three years she has worked preparing and serving food at a nursing home in Potts Point, NSW earning around $450 per fortnight.  She said her husband, the second named visa applicant, is a chef at the fish markets, earning around $400 per week.  The applicant said her and her husband’s employment earnings go towards their living expenses and that her parents and an elder sister assist her meet her education expenses.

20. The applicant gave evidence she has an older sister who resides, along with her family, in Lakemba, NSW. The applicant gave evidence she gave birth to her and her husband’s first child in June 2017.  She said her son was born with a [specified medical condition] that can potentially be quite serious.  She said looking after her child and focussing on her studies is the reasons he has not returned to Indonesia since her son was born.  She said her son has had three [operations] and that his doctors anticipate he will require one further operation. She said that prior to his birth she had made three trips back to her home country between late 2013 and 2017. She said she, her husband and their son reside in a rental apartment in Pyrmont, NSW.

21. As to her ties to her home country, the applicant said she has both of her parents and four siblings there. She said her husband also has family in Indonesia. She said her husband owns property in Indonesia, which was gifted to him by his parents, who are quite well off financially.  She said her husband is interested in improving his English language skills, but part from that he does not particularly enjoy where he is working and he is keen to return to Indonesia, where he works with his parents looking after a number of property interests they own.

22. Having considered the applicant’s evidence during the hearing and the applicant’s circumstances overall, I am satisfied on balance that she has provided a reasonable explanation for her study history and her for how she will apply the skills she has acquired in a family business setting when she returns to Indonesia. I acknowledge that the applicant has some relatives in Australia, including her spouse and child and that she and her husband have significant family ties to her home country. I am satisfied the medical treatment needs of her child provides a short-term rationale for maintaining her residency in Australia, but I am not convinced this need will extend beyond the duration of the aforementioned treatment which is unlikely to extend beyond the period of the applicant’s current student enrolments.  I note the applicant is working part time in an aged care setting in Australia but am not satisfied this or her husband’s employment provides her with a clear incentive to seek to remain her residency Australia for economic reasons.

23. 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).

    Does the applicant intend to comply with visa conditions?

24. 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.

25. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

26. The Tribunal is aware there is some evidence to indicate the applicant has not complied with visa conditions whilst she has been in Australia. While the applicant did not maintain study at the higher education sector level, which was a condition of her initial subclass 573 student visa. She did subsequently apply for and was granted a number of subclass 572 visas and therefore would have brought her changed study choices to the attention of the Department. The Tribunal takes into account the fact the applicant is currently studying and is making good progress towards completing the package of accounting courses in during 2017. There is no indication she has failed to comply with restrictions on paid employment whilst she has been in Australia, or otherwise displayed a lack of respect for conditions attached to her visas.

27. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

28. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

29. The Tribunal has considered the applicant’s circumstances as a whole and has given weight to the applicant’s claims of wanting to improve her career prospects in Indonesia and that she is studying in a field relevant to these vocational aspirations. The Tribunal has also placed weight on the fact the applicant has displayed consistency in her endeavours to complete her current accounting study pathway.  

30. 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.

    The second named visa applicant – member of a family unit

31. As the Tribunal has determined the primary visa applicant satisfies the criteria in cl.500.212, other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. ‘Member of a family unit’ is relevantly defined at r. 1.12(1)(b), which provides:

    Reg 1.12    Member of the family unit

    For the definition of member of the family unit in subsection 5(1) of the Act, and subject to

    subregulations (2), (2A), (6) and (7),  a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    a spouse or de facto partner of the family head; or

    a dependent child of the family head or of a spouse or de facto partner of the family head; or

    a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (e) a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)               does not have a spouse or de facto partner; and

    (ii)              is usually resident in the family head's household; and

    .  (iii)             is dependent on the family head.

32. The second named visa applicant is married to the primary applicant. The Tribunal viewed the marriage certificate of the primary visa applicant and the second named visa applicant.

33. Accordingly, the second named visa applicant is a member of the family unit of the primary applicant and satisfies cl.500.311 in Schedule 2 of the Migration Regulations.

34. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

35. 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.

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

    ·cl.500.311 of Schedule 2 to the Regulations.

    David Barker
    Member