Selletore (Migration)

[2018] AATA 2195

Selletore (Migration) [2018] AATA 2195 (3 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thanalethcumy Selletore
Mr Karthi Paranjothi

CASE NUMBER:  1704823

DIBP REFERENCE(S):  BCC2016/4399126

MEMBER:Jennifer Cripps Watts

DATE:3 May 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.

Statement made on 03 May 2018 at 5:36pm

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – Genuine applicant for entry and stay as a student – Valid COE provided – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, 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 on 2 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 29 December 2016. 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 the delegate was not satisfied the applicant is a genuine applicant for entry and stay as a student.

4. The visa application that is the subject of this review was refused on 2 March 2017.  The applicant applied for review by the Tribunal on 15 March 2017, within time, and provided the Tribunal with a copy of the Department’s decision to refuse the student visas.  The applicant’s matter was constituted to this member and, on 23 March 2018, the Tribunal sent the applicants a written invitation to attend a hearing scheduled on 3 May 2018.    

5. The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before the hearing, specifically addressing the issue of whether she “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.”  The Tribunal attached a copy of an extract from the Migration Act 1958, Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications to the invitation, for her ease of reference.  The applicant was informed in the cover letter to the hearing invitation that she should refer to the delegate’s written decision and the reasons why the applicants did not meet the criteria for the grant of the student visa.  The applicant was also informed she should provide a copy of her current Confirmation of Enrolment (COE). 

6. The applicants responded to the hearing invitation or indicate they would attend the hearing.  The applicant provided the Tribunal with documentary information in support of the application prior to the hearing.

7. The applicants appeared before the Tribunal on 3 May 2018 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

8. The applicants were assisted in relation to the review by their registered migration agent, Ms Irene Gunawan, Migration Agent Registration Number 1467990.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 second-named criteria. The determinate issue upon which the applicant was refused the student visa was that the delegate was not satisfied she was a genuine applicant for entry and stay as a student and she did not therefore meet cl.500.212. All criteria must be met at the time a decision is made on the application. As the applicant did not meet criterion cl.500.212, her visa was refused. As the applicant did not meet the primary criteria for the grant of the subclass 500 student visa, the second-named applicant/member of her family unit, was also refused because he did not meet cl.500.311, which requires that he is the member of the family unit of a person who holds a student visa.

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

11. 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?

12. 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.

13. 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.

14. Both applicants attended the hearing and gave evidence.  The Tribunal’s view is that they were both credible witnesses who gave generally spontaneous and cogent evidence at the hearing.

    Background

15. The applicant is a 28 year old citizen of Malaysia.  The second-named applicant is her husband.  The applicants first arrived onshore on 26 November 2016 holding subclass UD-601 visitor visas that ceased on 26 February 2017.  About a month after arriving, the applicants applied for the student visas that are the subject of this review.

16. The applicants have both departed Australia together once since then, from 26 March 2018 to 2 May 2018, to visit family in Malaysia.  The applicant has two siblings, both of whom are in Australia studying, her brother since 2015 and her sister since 2013.  The applicant included the following information in her visa application lodged on 29 December 2016:

    a.She has COE’s for a package of four courses from January 2017 through to March 2020 – English and Certificate III, Diploma and Advanced Diploma of Business

    b.She is married, to the accompanying family unit member/husband, Karthi Paranjothi

    c.She has no non-accompanying family unit members

    d.Her cousin-in-law is providing finance and there is $43,000 in a CIMB Bank account

    e.That she has completed year 12 equivalent prior to coming to Australia

    f.Previous employment in Malaysia was with Smart Modular Manufacturing in Pulau Pinang

    g.Her career goal is to open her own business with family in Malaysia after finishing her studies in Australia and gaining some relevant work experience  while saving some money to start the business

17. The applicant gave oral evidence at the hearing that she does not wish or intend to study the Advanced Diploma anymore, since arriving at this decision after discussions with her husband and mother-in-law when they were in Malaysia in April 2018.  The applicant said she instructed a former agent to cancel the Advanced Diploma of Business which she is currently enrolled in, from 8 July 2019 to 3 July 2020 (and which at the time of this decision is still appearing on her PRISMS record for provider number [02678D], enrolment 87B13719).  The applicant’s current migration agent, Mrs Gunawan, who was at the hearing, gave an undertaking to help the applicant cancel the Advanced Diploma of Business after the hearing.

18. The Tribunal is satisfied, after discussion, including putting information to the applicant under s.359AA of the Act, that she has taken steps to cancel the course, intends not to do the Advanced Diploma and does intend to finish her study in July 2019 and return to her home country around July 2019 when she completes the Diploma of Business she currently holds enrolment for. The second-named applicant was not in the hearing room when the applicant gave her oral evidence about this and when he was asked about the applicant’s intentions later in the hearing he gave essentially the same answer about cancelling the Advanced Diploma and that they had made this decision after consulting with his mother on their recent trip to Malaysia.

19. The applicants both gave spontaneous and separate responses about having discussed the value of the applicant continuing beyond the Diploma of Business with each other and with the applicant’s mother-in-law who, on the evidence they gave, together with a cousin-in-law of the applicant, is supporting the applicants financially while they are in Australia.  They both said, essentially, that whilst the applicant needs a qualification greater than a Certificate IV in Business to progress her career back in Malaysia, she does not need an Advanced Diploma.

20. The second-named applicant is studying for a local Malaysian trade qualification, a Green Book, whilst residing in Australia with his wife.  The Tribunal spoke to the second-named applicant about this and, whilst he did not provide any documentary evidence, the Tribunal accepts that he is engaged in the study and will finish it in 2019 which will give him a qualification that will enhance his re-employment prospects in Malaysia when the applicants return there to live after the applicant finishes her Diploma in Business in mid-2019.

21. The Tribunal had concerns about the manner in which the applicants came to be in Australia.  Whilst there is nothing preventing an applicant who holds a visitor visa from applying for a student visa, in the circumstances the Tribunal does not accept that this was a spontaneous decision made after the applicants arrived onshore, that is, after November 2016.  The Tribunal’s view is that the decision to come to Australia was for the purpose of enrolling in a course and applying for the student visas.  The applicant gave oral evidence that they both quit their jobs the month before travel and appear, on the evidence, to have spoken to family members before they departed Malaysia in 2016 about the applicant studying in Australia.  The Tribunal’s view is that the applicant may have misrepresented her true intentions when she entered the country holding a 601 visa in November 2016 claiming to be a visitor staying for up to three months.

22. However, from January 2017 up to the time of this decision the applicant has studied and has the following current and future enrolments:

    a.Past:  From 30 January 2017 to 16 June 2017, English

    b.Current:  From 10 July 2017, Certificate IV in Business, her current study that is due to finish in July 2018

    c.Future:  From 9 July 2018 to 5 July 2019, Diploma of Business

    d.Proposed Cancellation:  From 8 July 2019 to 3 July 2020, Advanced Diploma of Business

23. Although the bridging visa she has held since her student visa was refused allows for unlimited study, it is not a requirement that the applicant studies, and the Tribunal gives positive weight to the applicant commencing study in January 2017 shortly after applying for the student visa and continuing to study and progressing satisfactorily through her courses while she awaits an outcome in her student visa matter.  She has not postponed her study which would have extended her time onshore, but instead has continued studying and is now about halfway through her courses.

24. The Tribunal, in addition to the oral evidence at the hearing, has had regard to the written submissions provided prior to the hearing.  The applicant’s stated career goal is to ultimately start a business with her husband and mother-in-law in Malaysia.  She plans first, on returning to Malaysia after she finishes her Diploma in Business in July 2019, to gain employment and some work experience in business and the applicant says that the family business is a longer term plan that will also require her to accumulate some savings before she starts the business.  The Tribunal is satisfied this is a genuine plan.

25. The applicant has two siblings, both of whom are students in Australia.  Oral evidence was given that the applicant is not particularly close to her siblings and that she, her brother and her sister all live separately in Sydney, not together.  The applicant’s mother continues to live in Malaysia, as does the family of the second-named applicant.  The Tribunal does hold some concern that the applicant has more close family members in Australia than she does in Malaysia.  However, as her siblings are here on temporary student visas, and to give the applicant the benefit of the doubt as she is satisfactorily progressing in her studies and is about halfway through the combined Certificate IV/Diploma of Business course, the Tribunal is satisfied that the applicants have ties to their home country.

26. The applicants provided documents that indicate the second-named applicant owns a Honda motorcycle and a Kia Optima car in Malaysia and it has been submitted he also owns land there.  The Tribunal is satisfied that the applicants have parental and economic ties to their home country and that they both have plans to return there to work when the applicant finishes studying in Australia in July 2019.

27. Notwithstanding the concerns the Tribunal has about the applicants’ manner of applying for the student visa, that is, after obtaining an Electronic Travel Authority (ETA) in Malaysia before arriving onshore and applying for the student visas when they had claimed only to be coming for a short holiday, the applicant’s circumstances as a whole tend to suggest, and the Tribunal is satisfied, that she is onshore as genuine temporary entrant for study.

28. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. The Tribunal has no evidence before it to think the applicant will not comply with conditions subject to which the visa is granted or that there is any other relevant matter that would indicate she is not a genuine applicant for entry and stay as a student. Accordingly, having considered all relevant facts and matters, the Tribunal is satisfied the applicant meets cl.500.212(a)-(c).

29. 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

30. 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.

    Jennifer Cripps Watts
    Member