Sika (Migration)

[2019] AATA 174

Sika (Migration) [2019] AATA 174 (21 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sheena Alicia Anak Sika

CASE NUMBER:  1712615

HOME AFFAIRS REFERENCE(S):           BCC2017/631819

MEMBER:David Barker

DATE:21 January 2019

PLACE OF DECISION:  Sydney

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 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 21 January 2019 at 11:32am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – qualification will enhance career prospects – lives with mother and step father in Australia – financially supported by family – viable to return to Malaysia and seek employment – credible witness – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), ss 65, 499

Migration Regulations 1994 (Cth), 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 29 May 2017 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 for the visa on 15 February 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). 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 applicant appeared before the Tribunal on 17 October 2018 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by their registered migration agent.

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 Malaysia and 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 June  2013, as the holder of a subclass 601 Electronic Travel Authority. The Tribunal notes at that time she was 14 years old. The delegate notes she was granted a further subclass 601 visa, before applying for a subclass 572 Student visa, which was granted in November 2014.  The delegate noted that at the time of the visa application the applicant proposed to undertake a Certificate III in Early Childhood Education and Care and Diploma of Early Childhood Education and Care, with these courses being due for completion on 30 June 2018.

9. The delegate noted that records held by the Department indicate that upon the applicant’s previous arrival to Australia in June 2014, her mother advised that she is a permanent resident of Australia that it was her plan to apply for permanent resident status for the applicant and that if this was not possible, the applicant would return to Malaysia and live with your aunty and grandmother.  Further to this, the delegate noted that Departmental movement records indicate that since June and on that basis assessed the applicant’s incentive to return to Malaysia as minimal.

10. In response to an invitation to the applicant from the Tribunal  to provide documents or arguments she wished to rely on in her review, the applicant provided documentary evidence including, but not limited to: , evidence of her current, past and proposed academic studies and a written submission from her representative, which relevantly stated:

    Bakground

    The review applicant was born on 23 February 1989.

    ·On 6 June 2013 the review applicant was granted an Electronic Travel Authority (subclass 601) visa offshore. She arrived in Australia on 8/06/2013. The review applicant lodged an onshore Tourist (subclass 600) visa on 2 September 2013, which was granted on 6 September 2013.

    ·The review applicant was granted an ETA on 6 September 2014.

    ·On 5 September 2014 the review applicant lodged a Student (subclass 572)

    onshore which was granted on 17 November 2014.

    ·On 15 February 2017 the review applicant applied for a Student visa to undertake a Certificate III in Early Childhood Education and Care and a Diploma of Early Childhood Education and Care. These prospective courses commenced on 30 January 2017 and would be due for completion on 30 June 2018.

    ·The review applicant was refused her application for a Student visa on 29 May 2017 by the Department of Immigration and Border Protection ('the Department').

    ·On 19 June 2017, the review applicant lodged a review of the refused Student visa to the Administrative Appeals Tribunal ; ('the Tribunal ').

    ·The review applicant was granted a subsequent Confirmation of Enrolment to finish her Diploma which was due for completion in June 2018. Due to issues regarding visa status (discussed below) the applicant was unable to complete the Diploma and has been advised to re-enrol into semester 1 2019 to complete the Diploma.

    …….

    Issues in the delegate's decision
    We note that the delegate was not satisfied that the applicant was a genuine temporary entrant as required in accordance of Direction 69 under 499 of the Migration Act. It is submitted that the applicant has always had the genuine intention to study in Australia, and even though she is supported by some of her family members living in Australia, this should not go against her as discussed below. The issues raised in the delegates decision record will be discussed in order to show that the Genuine Temporary Entrant criterion is satisfied in this application.

    Value of the proposed courses to the review applicant
    Delegates comments: I have considered the value of these courses to your future. I take into account your comments and supporting documents. For your future employment, you have stated you hope to undertake employment in the industry, which you already have a job lined up for. You have indicated you would also like to apply for either permanent residency or Australian citizenship so you can start a career in child care and to be with your mother and brother. Whilst your employment and remuneration may improve slightly due to completion of the courses you have nominated to study, you have not demonstrated any clear and substantial improvement arising from your proposed study that will outweigh the significant time and monetary commitment these courses would require. Therefore lam not satisfied that you have demonstrated the value of your proposed courses to your future.

    Response:
    The review applicant instructs that "In 2014, I initially came to Australia on a Tourist Visa, after reconnecting with my Mum. Originally, we were planning on me possible staying with my Mum and 2 brothers hence the extended one-year Tourist Visa I was granted. During my stay with my mother and family in Australia, we discussed my career plans and what I generally wanted to work in, and what I was passionate about. I have always been passionate working with young children and being a teacher to them. I know that I needed to improve on my English-speaking skills, in respect of both my speaking and writing to help me gain any qualification to help me do this. Furthermore, as English is also a spoken language in Singapore, I believed that enhancing my English language skills would be important for my career. After speaking to an immigration lawyer about my plans to become an Early Childhood Teacher, I was advised that the best course to take was to enrol into an English course in Australia and apply for a student visa. Following from this I would be able to gain entry into tertiary education such as TAFE, to study Early Childhood education. I believe that having a qualification from Australia would put me in good stead for employment in Malaysia as Australian qualifications are held high there. In the decision record, the Minister 's Delegate states that my Certificate III in Early Childhood Education and Care was cancelled. I would like to clarify that I unfortunately failed a few subjects and was unable to complete my course. I have since completed the course and I provide my certificate as an annexure to this declaration. My Certificate III was obtained on 22 June 2017 from TAFE NSW After completing my Certificate III in Early Childhood Education and Care, I enrolled in a Diploma of Early Childhood Educate and Care. I needed to complete the diploma in order to be fully qualified for my career. I have paid for the course and have attached the tax invoice as an annexure for reference. I have also been trying to enrol and complete this course and attach as an annexure correspondence with TAFE NSW for reference. Please also find annexed to my declaration, a copy of my Confirmation of Enrolment" (refer to enclosed declaration at annexure A).

    It is submitted that the courses which have been undertaken thus far by the applicant have been consistent and are in-line with her career goals of becoming an Early Childhood Teacher and the review applicant has detailed why she believes the courses will help her towards her career. We therefore submit that this support the fact that the applicant was a genuine temporary entrant.

    Ties outside Australia
     Delegates comments: Records held by the Department also indicate that upon your previous arrival to Australia 07/06/2014, together with your mother, you were questioned by an Immigration Officer as to your bona- fidee. Your other advised that she is a permanent resident of Australia and your step-father was an Australian citizen. Your mother further advised that it was her plan to apply for permanent resident status for you. Your mother further advised that if it was not possible for you to lodge a PR application you would return to Malaysia and live with your aunty and grandmother.

    Response:
    Jenny Sibik, the review applicant's mother states that "I also believe that previous comments made by me regarding the intention for Sheena to obtain permanent residency may have been taken out of context as we did not fully understand the procedures of immigration and relevant visas, including the student visa. We did not know that holding a student visa would be an issue as I thought that if any opportunities were to arise for Sheena in the future, that she would be able to apply for another visa as there were no conditions on the student visa preventing further applications. Sheena will always comply with the conditions on any visa given to her in Australia and we understand that the Student visa is a temporary visa. The fact that Sheena would be able to study in Australia would set her up for a future career, regardless of where she lives as child care is always an important part in society. We understand that when Sheena completes her Diploma, it is expected that she would be returning back to Malaysia to explore job opportunities and continue to live with my sister as she has previously done" (refer to enclosed declaration at annexure B).

    It is further submitted that the review applicant's education plans should not be disadvantaged by her relatives comments. A mother's plans should not be taken to be their child's plan, when their child is above 18years of age and is therefore independent. This consideration should primarily be for children under 18 years of age which is stipulated in the Ministerial Direction No. 69.

    The review applicant instructs that "I came to Australia in 2014 on a Tourist Visa, after reconnecting with my Mum. Originally we were planning on me possibly staying with my Mum and 2 brothers hence the extended I year Tourist visa I was granted. After speaking with a immigration lawyer on the phone it was determined that my best option of staying would be studying on a Student Visa. I was always interested in being a teacher or working with children so we decided to follow this path and I enrolled in a English course as it was a requirement to study Tafe.

    Working with children was something I was interested in but is hard to get into in Malaysia without correct qualifications. If I am unable to stay in Australia having studied here and receiving qualification here would put me in good stead for employment in Malaysia as Australian qualifications are held high there.
    My Cert 3 was not cancelled it was just that I failed a couple of subjects and was unable to complete my course, this has since been done and I will attach my certificate. With regards to the Diploma this was always part of the plan so I could be fully qualified.
    This is currently in limbo as I have paid for the course ($6500) but am unable to commence this as my request for a new Student Visa/ extension was denied "(refer to enclosed declaration at annexure A to confirm same).

    We argue that the review applicant's mother's comments to border officers should not be the deciding factor when assessing the actual visa applicant's intentions on a student visa. She has made the student visa extension in her own right, and the mother is not included in the application. In regard to staying with her mother whilst studying in Australia, it is easier for the review applicant, who is to be supported by her mother and step-father to live with them whilst studying. Moreover it is not necessary that the sole purpose is to study, and other factors can weigh into the decision to study in Australia, such as spending time with one's family residing in Australia, as noted directly in policy.

    Delegates comments: I have considered your personal ties to Malaysia. You have indicated you have never married You have indicated you have your mother and one (1) brother in Australia. You have not declared family ties in Malaysia. I therefore place no weight on family ties as an incentive to return to Malaysia.

    Response:
    The review applicant instructs that "in respect of my family history, my mum had moved to Australia in 1999 with her new husband He didn't want to look after me at the time so I had to stay with my Auntie, who was my mum's sister. Jam very close with my Auntie and my family in Malaysia. I have not had contact with my father since I was about 5 years old as he married and moved away. To this day I do not know his whereabouts and have not had contact with him. When my Mum was still living in Malaysia, I always lived with my Mum, Auntie and Uncle and three cousins. Mum had since divorced and has a new partner and I now have two brothers (Victor Sibik and Jayden Kohler) who are both Australian citizens. My Mum has Permanent residency. I still keep in contact with my Auntie andfamily in Malaysia and often visit for native celebration time. I will also be staying with them upon my return to Malaysia as I do not own a house, due to full-time studying. I intend to stay with my Auntie until I can afford a place of my own and or a Childcare facility which I can run. I have use of the family car in Malaysia and have clothes there and my bank account (BSIV) is in Malaysia" (refer to enclosed  declaration at annexure A).We ask the Tribunal  to take this into consideration.

    Circumstances in home country
    Delegates comments: I have taken into account your economic circumstances in your home country relative to your potential economic circumstances in Australia. Given the disparity in the economic circumstances between Malaysia and Australia, I cannot be satisfied that you have significant incentive to return to Malaysia.  I am concerned that your intention to live in Australia may be motivated by factors other than study.

    Response:
    Economic circumstances in Malaysia- living expenses and teaching salary
    It is not known what economic circumstances the Minister's Delegate relied on in determining their decision as this was not explained. However, according to the Departments public website, on the country profile of Malaysia, "Malaysia is the third largest economy in South-East Asia and is considered a high middle-income export orientated economy. Malaysia's economy is dominated by gross exports of goods and services, which contribute over 8- percent to gross domestic product (GDP) with the manufacture and export of electronic and electrical products globally, and the export of oil and gas in the South-East Asia region. This reliance on exports meant that Malaysia experienced a significant economic slowdown during the global financial crisis as overseas demand for its goods and services waned With long term average growth of over 7 per cent for the last quarter of a century, Malaysia has reduced the number of people living below the poverty line".' It is noted that the slow down for goods and services is in respect of trade only, and not education.
    Furthermore, as of December 2017, the growth in Malaysia economic environment accelerated with a year-on-year growth projected at 5.8 percent. This growth rate is reportedly Malaysia's highest annual growth rate since 2014, and is projected to remain fairly stable, projected at 5.2 at the end of 2018.2 The Bank Director for Malaysia, Ulricjh Zachau has started that "Malaysia's progress over the last 20 years owes much to the sound policies being adopted during and since the Asian Financial Crisis"? Moreover, the World Health Organisation of the United Nations have stated that "Malaysia is a middle-income country that has transformed itself from a producer of raw materials into an emerging multisectoral economy in the last quarter of the twentieth century. Malaysia had a multiethnic, multi-cultural population 0f23 million that have a good standard of living and gives high priority to education, health and job opportunities for women"! It is accordingly submitted that there is economic growth in Malaysia and not an economic downturn which should be taken into consideration.
    The standard monthly income for people working in Malaysia is 3,412.32 RM5, equivalent to $1,110.91 AU. This equates to approximately $13,320.00 AU as an annual salary. The annual salary of a teacher in Malaysia according to Payscale.com is up to 74, 065 RM6, equivalent to$25,153.21AU with the current median range of 28,584 RM. Accordingly, a teacher in Malaysia is able to earn more money than the average wages in Malaysia across the board.
    The average living expenses in Malaysia is 45.91% lower than Australia. Malaysia's annual salary is certainly suitable to live in Malaysia, as a teacher who earns more than the average wage, the review applicant is able to live in Malaysia, meeting Malaysia's living expenses comfortably.

    Malaysia has different currency and circumstances in respect of their living expenses as opposed to Australia, and accordingly it cannot be accurately assumed that because the economic climate in Malaysia is different to Australia, that the applicant is not a genuine temporary entrant. Moreover, as Malaysia is the third largest economic country in South-East Asia, the economic circumstances overseas are not a relative issue in this application, and the decision of the Minister's Delegate in respect to this should not hold much weight.

    Economic circumstances- High need for teachers in Malaysia
    It is submitted that there is a high skill shortage in Malaysia for teachers. Reportedly, Malaysia's Chinese schools are hiring non-Chinese speakers to fill the employment gap,' and school years are being combined (for example Year One, Year Two and Year Three together in a classroom) in order to meet the shortage of teachers in Malaysia's. Due to this shortage, Malaysia is seeking qualified teachers to be employed in their schools. It is submitted that the applicant lived with her aunty in Malaysia and had use of the family car
    and financial services and would be returning to this situation after her temporary stay in Australia is finished.

    Movement records
    Delegates comments: Departmental movement records indicate that since 08/06/2013 you have spent 1326 days in Australia and 22 days outside of Australia which indicates that you do not appear to have strong personal ties to Malaysia. Based on this evidence, I assess your incentive you return to Malaysia as minimal

    Response:
    The review applicant originally arrived to Australia on 8 June 2013 on a tourist visa. A second tourist visa application was granted to the applicant on 6 September 2013 whilst she was onshore. The applicant complied with the conditions of this visa and departed Australia in-line with the visa held at that time. A third tourist visa was granted to the applicant offshore on 17 November 2014. The applicant was well within her rights to apply to travel and visit her family in Australia. During the course of her time with her family, her future was discussed. The review applicant was interested in studying early childhood education as she really wanted to be an early childhood teacher. Accordingly, upon seeking advice from a Migration Agent in Australia, the review applicant decided that having a qualification in Australia would make her stand out from other people who want to become early childhood teachers in Malaysia. Accordingly, the review applicant applied for a student visa on 17 November 2014. English studies were first completed before proceeding with a Certificate III in Early Childhood Education and Care, and a Diploma in Early Childhood Education and Care. It is• submitted that since November 2014, the applicant was required to study inside Australia. As she was living with her mother and step-father in Australia, this enabled the review applicant a place to live and financial support during her studies. The fact that TAFE is a 'compact' course with full-time contact hours required, it would not be considered feasible for the review applicant to depart Australia for long-periods of time, and this is why she has a reasonable period of time in Australia.

    The review applicant further instructs that "I have not intended my living situation in Australia to be permanent as my intention is to study to gain appropriate qualifications to enable me good career prospects back in Malaysia. Most jobs are still advertised in local newspapers and I know that childcare workers, managers and centres are always needed in Malaysia. It is a good industry to work in providing that the person has the required qualifications" (refer to enclosed declaration at annexure A).

    Current study situation
    The review applicant has applied herself to her studies in Australia to ensure the best prospects in her desired career. The review applicant has completed her English courses and Certificate III in Early Childhood Education and Care. However, the review applicant instructs that she did initially struggle with some of the assessment undertaken in the Certificate III due to her English and the standards of writing and presenting essays for the course were difficult, given English is not her first language. The review applicant instructs that "in the decision record, the Minister's Delegate states that my Certificate III in Early Childhood Education and Care was cancelled I would like to clarify that I unfortunately failed a few subjects and was unable to complete my course. I have since completed my course" (refer to enclosed declaration at annexure A). It is submitted that the review applicant was determined to finish her course and obtain her qualification to increase her career prospects in the field of Early Childhood Care and Education. The review applicant assessed where she went wrong or could improve on her assessments and was able to complete the course which directly shows her intentions to study and complete her education in Australia.

    The review applicant had also done well in her practical assessment for her course also. Details of the review applicant's previous qualifications and transcripts which are presently available are enclosed at annexure C. Further documentation once made available from the review applicant's education provider will be provided once obtained.
    The review applicant left Australia whilst holding a Bridging visa A on 28 June 2018 and returned to Australia on 10 July 2018 to visit her family in Malaysia. She was granted a subclass 600 visa at the border, and on 23 July 2018 an application was put in to reinstate her Bridging visa A which was granted. Please refer to annexure G to confirm same. This Bridging visa A starts again on 10 October 2018 and will have full study rights. Whilst this process was happening the review applicant was organising to continue to study her Diploma as the studying year was restarting for semester, however there was confusion between the TAFE NSW enrolment officer in respect of the review applicant's studying rights. The enrolment officer then went on leave, however the copy of the emails are enclosed at annexure E for reference to directly show the intentions9 of the review applicant to continue studying her diploma whilst on review. The Diploma was also already paid for and the review applicant looks forward to finishing her Diploma which will put her in a good position for her future career. As the study period for the Diploma in Early Childhood Education and Care begins in February 2019, the review applicant was advised to re-enrol and obtain a new COE from TAFE NSW accordingly. Please refer to correspondence from Brett Slater Solicitors to TAFE NSW (assisting the review applicant in respect of obtaining the documents requested by the Administrative Appeals Tribunal , and to clear the confusion regarding the study rights situation on her visa at annexure E). The review applicant is currently undergoing this process and confirmation of lodgement of the application is enclosed at annexure F.

    Conclusion

    In summary, it is submitted that if the review applicant genuine intends to gain a qualification in Child Care which she believes will set her up to work in Child Care and perhaps open her own business. The applicant has an approved Confirmation of Enrolment and has paid for the Diploma course in full, There is nothing further from preventing her finishing her Diploma accordingly. The review applicant genuinely intends to stay in Australia temporarily in line with the conditions on the student visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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?

3. 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.

4. 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.

5. 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 documents that she has provided with her review application and I am satisfied weight can be placed on the applicants’ evidence.

6. The applicant gave evidence that she wants to complete the Diploma of early Childhood Education and Care as without this qualification will not be sufficient for her to get a good job back in her home country.  She has provided a current Confirmation of Enrolment in relation to her re-enrolment in this course, which is due to commence in February 2019 and finish in December 2019.

7. The applicant gave evidence that she understands that it may not be possible for her to stay in Australia with her mother on a permanent visa and that as she is now over 20 years of age and she is not reliant on her mother’s support or guidance anymore.  She considers it viable for her to return to Malaysia and seek employment and business opportunities there in the childcare and early childhood education vocational field.  She contended that she should not be judged by her mother’s actions or statements in 2013, when she was only a young teenager.

8. The applicant gave evidence that her mother works as an assistant nurse in an aged care centre and also as a cleaner.  She said she has no economic link to her mother’s employment or any other economic incentive to remain in Australia.  She said that she has two step brothers in Australia, but also numerous relatives in Malaysia.  She said she was working part time in a child care centre in Hornsby, but that she ceased this employment when she lost work rights after her visa application was refused.  She said that since then her mother and stepfather have financially supported her.

9. The applicant conceded she failed some subjects in her child care courses  but refused any suggestion that she has  not been motivated to achieve her study goals, nor that they have not been consistently aimed towards early childhood care and education focussed.  She said there was some difficulty completing required field placement requirements due to the subjects she failed at an earlier stage and that she needs to now complete her course in the 2019 academic year.  She said she will then return to Malaysia.

10. Having considered the applicant’s evidence during the hearing and the applicant’s circumstances overall, I accept that her explanation for both her study history and study goals is both reasonable and plausible.  I accept that it is not appropriate to hold the applicant accountable for her mother’s wish in 2013 for her to remain in Australia with her.  I am satisfied the applicant would prefer to stay in Australia with her mother and I do not consider this unreasonable.  However  I am satisfied  she accepts the requirement stemming from her immigration status and that she understands the need for her to return to her home country after the completion of her childcare and early childhood education course.  I am satisfied the applicant has realistic goals for her future job seeking in Malaysia and that whilst she has significant familial ties to Australia, she also has family ties to her home country.  I do not consider the available evidence demonstrates the applicant has an economic incentive for seeking to maintain her residency in Australia, or that she will not depart from Australia when required.

11. 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?

12. 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.

13. 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).

14. The Tribunal  does not have any evidence to indicate the applicant has not complied with visa conditions in Australia. While the applicant has some minor gaps in her studies, she has provided a plausible explanation for these gaps and for re-enrolments in similar courses. 

15. 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?

16. 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)).

17. 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 employment or business prospects in Malaysia The Tribunal  has also placed weight on the fact the applicant has displayed consistency in her endeavours to complete her current study pathway.  

18. 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.

19. 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

20. 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 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    David Barker
    Member