TAN BOON LEONG (Migration)

[2019] AATA 4814

TAN BOON LEONG (Migration) [2019] AATA 4814 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  JASON TAN BOON LEONG

CASE NUMBER:  1721475

HOME AFFAIRS REFERENCE(S):           BCC2017/1931188

MEMBER:Lynda Young

DATE:4 October 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(a) of Schedule 2 to the Regulations.

Statement made on 04 October 2019 at 2:06pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine applicant for entry and stay as a student– genuine interest in study – satisfactory study progress – a credible witness – personal ties to Malaysia –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212
Education Services for Overseas Students Act 2000

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 August 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 31 May 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student who intended genuinely to stay in Australia temporarily.

4. The applicant applied to the Tribunal for review of the decision on 12 September 2017, and attached a copy of the Notification of Refusal and Decision Record.

5. The applicant appeared before the Tribunal on 11 June 2019, to give evidence and present arguments.

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

   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.

8. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student, as required by cl. 500.212(a).

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

9. 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?

10. 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.

11. 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.

12. The applicant, a freelance make-up artist from Malaysia, who arrived in Australia on 1 March 2017 on a visitor visa, valid to 1 June 2017, and applied for the student visa on 31 May 2017 to study a Certificate II in Business Course at NSW Business College commencing 17 July 2017, completing 12 January 2018. 

13. The applicant provided a GTE statement with the visa application, and provided a copy to the Tribunal, which stated:

    “I am a personal make-up artist so it can improve my skills on how to have my own business one day that is relevant to anything business.

    I found this college is very good. Great location which located just walking distance from Central Station. The staff there is very helpful. The facilities is well equipped. There are a lot of students from difference countries all over the world such as Thailand, Korea, and Europe etc. will be an advantage to learn and approach different cultures.

    Most of students from Malaysia study in Australia since long time ago. They are now so brilliant in their career and now a great success either in Australia or Malaysia. Australia also know known as a high level standard in English and Business skill. The environment here can easily and fully making myself concentrate in learning. There are more opportunities to speak English if compared with Malaysia.

    I do not know whether you can understand or not, as an overseas student, compare with Malasia and Australia, Australia's education system is much better than Malaysia, especially on practical business management. I will go back to Malaysia to introduce what I have learned. I think I would have a brilliant career and future. Hope the God bless me, and bless you”

14. According to the Decision Record, the delegate was concerned the applicant appeared to have applied for the student visa merely as a means of maintaining ongoing residence in Australia rather than due to a genuine interest in study, and to circumvent proper migration channels as the proposed course had little value to the applicant’s future and was unlikely the applicant would have significantly enhanced remuneration level or career prospects in Malaysia upon completing the Certificate II in Business course.  The applicant had not pursued any post-highschool education in Malaysia, had not provided any substantial reasons for choosing to study the Certificate II in Business course, had not provided any evidence of attempting to enrol in similar courses in Malaysia, and had not provided any sound reasons to not study in Malaysia. As the applicant had not provided any evidence of investments or property ownership in the applicant's name in Malaysia, the Delegate was concerned the applicant had insufficient ties to Malaysia to be motivated to return after completing studies, and credibility issues based on conduct of consistently remaining onshore beyond the intended stay duration on numerous previous occasions travelling to Australia as a "Tourist" raised serious concerns as to whether the applicant will comply with immigration laws in future or return to Malaysia at the end of the proposed stay in Australia.

15. In addition to the Notification of Refusal and Decision Record, the applicant also provided the following documents to the Tribunal:

    a.Confirmation of Enrolment (CoE) for Certificate II in Business at NSW Business College commencing 17 July 2017 completing 12 January 2018;

    b.a reference from a trainer at the NSW Business College dated 14 September 2017, relevantly stating the applicant was a good student who performs well and has a good school record, always attends classes, is very enthusiastic for the course being studied and responsible for all assigned works, always submits them on time, has good manners and should have the chance to continue studying;

    c.a statement of attendance from the New South Wales Business College, certifying attendance at 90% as at 15 September 2017;

    d.Confirmation of Enrolment Letter dated 3 June 2019 certifying the applicant was enrolled at New South Wales Business College and had completed the Certificate II in Business;

    e.Abbey College Australia Offer for enrolment in a package of courses, Certificate IV in Business commencing 8 July 2019, Diploma in Business and Advanced Diploma in Business completing 1January 2023. Total tuition fee for the package: $21,000;

    f.CoE for each of the courses in the package referred to in the preceding paragraph, and receipt for payment of first instalment of tuition;

    g.Rental tenancy agreement for a 12-month lease to the applicant in the applicant’s home country of residential property, commencing 1 July 2018.

16. In response to the Tribunal’s request for student visa information made under s359(2) of the Act, the applicant stated:

    a.the applicant travelled home in August 2018 and May 2019, each time for 60 days, to visit family and to deal with a leased property;

    b.the desire to study in Australia was related to obtaining business skills to parlay current business into more stable opportunities, and studying in a more diverse and supportive learning environment in Australia, in a culture that is more open and accepting. Having gained Certificate II, the applicant wished to continue onto Certificate III to gain further knowledge, possibly achieving a goal of opening a beauty salon or setting up a beauty salon business in their home country;

    c.the applicant’s aunt lives in Australia;

    d.the applicant has not completed any formal studies since graduating high school, more than 20 years ago.

17. The Tribunal also had regard to the Department’s file for the applicant’s visa application. The Tribunal clarified with the applicant at hearing that the unnumbered page appearing between pages 23 and 21, and the unnumbered page appearing between pages 19 and 17 of the Department’s file are not related to or contain information about or relevant to the applicant.

18. The applicant gave the following relevant evidence at hearing, in summary:

    a.the applicant holds and maintains a leased residence in Malaysia. A copy of the lease was provided to the Tribunal post-hearing.  being a significant sum of funds on deposit as well as a leased property.  The applicant provided a copy of the lease;

    b.the applicant holds no property in Australia and is living with friends and occasionally staying with the applicant’s aunty;

    c.the applicant had significant social ties to Malaysia, and some family, although not close;

    d.the applicant has suffered significantly as a result of gender-related prejudice and although the applicant has not been subjected to seriously violent physical attacks, close friends of the applicant have been seriously injured by such attacks. Prejudice of this type is far less likely to be openly expressed in the applicant’s experience of Australia, and the study environment in Australia is far better as a result;

    e.although previously successful as a personal freelance make-up artist, the applicant now wished to settle down following the deaths of both a close friend and the applicant’s mother, and the proposed study was to educate the applicant, forming a base from which to build a more stable life in Malaysia.  Studying business would help provide the foundation for the applicant to change direction, and open possibilities for the future;

    f.in response to the Tribunal’s question, the applicant had not been enrolled since completing the Certificate II in Business on 12 January 2018 as a result of the refused student visa. In the course of the discussion following, it became apparent to the Tribunal the applicant had not appreciated the distinction between holding a visa and holding enrolment. After the distinction was clarified with the applicant, and following the Tribunal highlighting the enrolment criteria in clause 500.211 of Schedule 2 of the Regulations, the applicant sought an adjournment of the hearing to obtain enrolment. Considering the applicant’s apparent mis-comprehension and expressed motivation to study, the Tribunal granted the applicant a very brief adjournment to the end of the business day, a period of some two hours, to obtain enrolment. The applicant obtained enrolment within that period;

    g.had the applicant wished to obtain a visa to remain onshore, an extended stay visitor visa was a far less expensive and less restrictive option, particularly as to work rights, than the student visa.  The work limitations especially make returning home more a necessity than a choice;

    h.the applicant has no military service obligations, no adverse immigration history or history of failure to comply with visa conditions, intends complying with any imposed visa conditions, and intends only staying in Australia temporarily, for the purpose of completing the courses enrolled into.

19. The applicant presented as a frank and credible witness, and provided supporting documents as requested by the Tribunal in respect of a residential property lease in Malaysia, enrolment and payment of tuition.  The Tribunal has no hesitation in accepting the applicant’s evidence.

20. The Tribunal has had regard to and considered the whole of the evidence before it in determining this application.

21. At the date the applicant’s visa application was refused, the applicant had been studying in the Certificate II in Business course for approximately two months and had approximately five months study remaining to completion.  Despite the refusal, the applicant completed that course successfully and provided a supportive reference from a course trainer. The Tribunal is satisfied the applicant’s explanation for the failure to appreciate difference between holding a visa and holding enrolment adequately addresses the applicant not having studied after completing the Certificate II in Business. On the available evidence, the Tribunal is also satisfied the applicant has, by completing the Certificate II in Business despite the visa refusal, and immediately enrolling and paying the first tuition instalment of $1550 within the approximately two-hour hearing adjournment granted once the distinction was explained, demonstrated genuine intention to study in business in Australia. 

22. The Tribunal accepts the applicant is restricted in working in Australia and as a result is dependent on savings on deposit with a financial institution in Malaysia.  The Tribunal accepts the depletion of those savings over time coupled with a restricted ability to earn income in Australia would provide significant motivation for the applicant to return to their home country after completing studies.

23. The evidence satisfies the Tribunal the applicant has property ties to Malaysia, specifically a lease for an apartment.  The Tribunal accepts the applicant’s evidence of living arrangements in Australia, staying with friends and occasionally an aunty.

24. On the evidence before it, The Tribunal is satisfied the applicant’s ties to Malaysia, specifically the funds on deposit and the lease of residential property, are significant and that conclusion is supported by the applicant returning to Malaysia for extended periods in 2018 and 2019.

25. The Tribunal is also satisfied as to the reasons provided by the applicant for studying in Australia, particularly considering the applicant’s evidence as to experiencing a significantly improved study environment in Australia.

26. Although the applicant’s failure to provide any detailed plan for their future once having completed study is troubling and tends to suggest studying may be the aim rather than the means to achieve the aim, the applicant’s demonstrated genuine study intention coupled with the explanation for returning to study some 20 years after having last studied, satisfy the Tribunal the courses being undertaken by the applicant will likely improve the applicant’s employability and provide necessary skills for opening a salon business.

27. The Tribunal accepts the applicant’s evidence, and notes the absence of any evidence to the contrary, as to military service obligations, immigration history, compliance with visa conditions, and intention to stay in Australia temporarily, for the purpose of completing the courses enrolled into.

28. The available evidence does not disclose any matter contrary to the applicant’s evidence set out above, or other matters the Tribunal considers are unfavourable to the applicant and germane to the Tribunal’s consideration of the issues in this case.

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

30. 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

31. 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(a) of Schedule 2 to the Regulations.

    Lynda Young
    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

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.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

    9.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.

    10.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

    11.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

    12.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

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.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

    15.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

    16.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.