TAN (Migration)

[2019] AATA 3061

TAN (Migration) [2019] AATA 3061 (30 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss BOAY YWIN TAN

CASE NUMBER:  1722363

HOME AFFAIRS REFERENCE(S):          BCC2017/2739071

MEMBER:Damian Creedon

DATE:30 June 2019

PLACE OF DECISION:  Perth

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 30 June 2019 at 1:45pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – no entitlement to a hearing– genuine applicant for entry and stay as a student– Australian qualifications will enhance her career prospects – 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, 500.218

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 15 September 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 1 August 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).

4. On 2 April 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information to the Tribunal in writing about the course(s) of study she is undertaking and her entry and stay in Australia as a student. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing within the prescribed period, ending 16 April 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. In her response, the applicant indicated that she consented to the Tribunal deciding the application without a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal. 

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

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.

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?

1. 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.

2. 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.

Overview of evidence

1. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

2. The applicant is a 31-year-old Malaysian national who first arrived in Australia on 16 May 2017 as the holder of a Tourist (UD-601) visa valid until 16 August 2017. While onshore the applicant made the application for a Student (TU-500) visa the subject of this application. 

3. According to a written submission to the department made by the applicant in support of her application, and addressing the “genuine temporary entrant criterion”:

   a.Iinitially, after leaving secondary school in Malaysia, she planned only to work for “brief time” before returning to study; however she found that she “learned a lot” working in a “hands-on” environment.

   b.She states that “during her years as a Business Development Executive” she realised that she wanted to work in a role that required her to lead others more often and oversee decision-making.

   c.She states that “a business leadership course” can help her to apply for management positions, and help her to achieve her goal of working in “huge companies” in Malaysia.

   d.She states that working in a “huge company” offers opportunities to develop her career by offering training programs, the flexibility to move and undertake rotations within the company and gain access to benefits such as health insurance, travel allowance, greater diversity in co-workers and a “great” work-life balance.

   e.She states that her parents encouraged her to return to studying and that she wished to undertake international study as it would give her an advantage over local graduates; she states that the experience would “push her out of her comfort zone” and improve her adaptability, and expose her to western culture and education norms.

4. According to the evidence submitted by the applicant, including her response to the Tribunal's s.359A letter, since arriving onshore she has successfully completed the following course:

Course Name	Date Commenced	Date Completed
Certificate III in Business	08/2017	08/2018

1. The applicant’s evidence is that she is presently studying a Certificate IV in Business, which she commenced in August 2018 and is due to complete in August 2019, and is enrolled in a Diploma of Leadership and Management which she intends commencing in August 2018 and will complete in August 2020.

Analysis and findings

1. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

2. The applicant has been resident in Australia for just over two years, since May 2017.  In that time she has held a Tourist Holiday visas and is currently onshore on a bridging visa pending the outcome of her application for a Student visa.  In her application to the Department the applicant states that the factors impacting her choice of undertaking her studies in Australia in particular are its relative proximity to her home country (as compared with the United Kingdom or the United States), mild climate, multicultural population and the international reputation of its education system.  She also considers that Australia will expose her to a western culture and lifestyle which “can shape [her] and [her] perspective”.  She also believes that studying overseas will help her to improve her independence and maturity and that mixing with other international students will enhance her “communication and cooperation” skills.  Of themselves, although they are somewhat generic, these reasons suggest a rational and reasonable motive for an international student to choose to study in Australia, and, impliedly, a reasonable motive in the applicant for not undertaking her studies in Malaysia.  Overall they do not cause the Tribunal particular concern. 

3. The applicant also displays, in her evidence, a sound set of objective criteria that she has identified to help her select a course provider.  She states that she travelled to Australia to visit several college campuses, listing examples in her evidence.  She states that her final decision in this regard was made in consultation with an education agent and her evidence is that she chose her particular course provider for its course selection, campus amenities, convenient location and the number of international students there, offering opportunities to expose herself to different cultures and “ways of life”. 

4. In her evidence the applicant also displays a good degree of knowledge of her intended courses, and provides sound practical examples of how she intends to apply her qualifications to her future employment in her home country.   By way of example, the applicant states that, from her Diploma of Leadership and Management, she:

   “…will be able to identify change requirements and opportunities, develop and implement change management strategy.  I will be able to develop a plan with the relevant groups to promote the benefits of the change to the company and to minimize loss. 

5. Overall, the Tribunal is persuaded from the applicant’s evidence that she has identified what qualifications she wishes to undertake in order to enhance her career prospects in her home country; has then taken steps to inform herself as to her course options; and has selected courses and a course provider that meets her needs.  The Tribunal weighs these factors significantly in her favour.

6. As to her future career plans the applicant’s evidence, in summary, is that she intends to return to Malaysia after completing her Diploma of Leadership and Management in 2020 to apply for employment in a “large corporation”; she provides an example in her evidence of such an employer.  She states that her goal is to work in a position such as “sales manager” or “business manager” and she believes that these positions will be open to her with the skills and knowledge she will obtain from completing her qualifications in Australia.  She believes that she will be more competitive for such positions as a direct result of having studied in a western country.  She also claims to be fluent in English, Bahasa, Mandarin and Cantonese, further enhancing her prospects.  The Tribunal is persuaded from this evidence that the applicant has carefully considered her course options relative to her future employment prospects and has chosen her particular courses based on the criteria she identified.  The Tribunal weighs this factor moderately in her favour.

7. There is no evidence or information before the Tribunal as to the applicant’s economic circumstances in Australia.  Her evidence to the Tribunal as to her circumstances in Malaysia is that she was in full-time employment there between 2009 and 2017 on increasing, though, by Australian standards, modest annual salaries, reaching a peak of AUD$14,000 in 2017.  The applicant states that she expects to increase her earning capacity upon her return to Malaysia to approximately AUD$24,000 annually.  The Tribunal cannot reliably assess the veracity of this figure on the evidence available to it; in any event, however, it is significantly lower than the National Minimum Wage in Australia and raises a concern for the Tribunal as to the applicant’s economic incentives to seek to remain onshore.  These concerns are moderated to a degree by the applicant’s claimed family ties to her home country.  Her evidence is that her parents are resident in Malaysia and that she has been raised to observe her cultural obligation of looking after her parents in their retirement.  The applicant has mentioned no other family members in her evidence and has stated that she has returned to her home country only once (for 15 days) since she commenced her studies in Australia.  The Tribunal acknowledges the ties her parents represent, however it remains concerned as to the balance of the applicant’s economic incentives.  In all the circumstances the Tribunal weighs this factor slightly against the applicant.

8. There is no evidence or information before the Tribunal of any military service or civil or political incidents that would act as a clear incentive for the applicant to remain in Australia.  The Tribunal places some small weight on this factor in the applicant’s favour.

9. There is no evidence before the Tribunal that the applicant has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation.  The applicant’s immigration history does not raise concerns for the Tribunal. 

10. In addition to the factors set out above, the Tribunal has also turned its mind, and had regard, to the following factors as a guide to assessing the GTE criterion in this case:

    a.     the applicant’s circumstances in their home country relative to the circumstances of others in that country; and

    b.     the applicant’s ties with Australia which would present as a strong incentive to remain in Australia (including family and community ties).

11. There is no evidence or information available to the Tribunal in respect of these factors as they apply to guide a decision the applicant’s case. 

12. The Tribunal has had regard to all other relevant information provided by the applicant (or information otherwise available to the Tribunal) when assessing the applicant’s intention to temporarily stay in Australia, including information that may be either beneficial or unfavourable to the applicant. 

13. In weighing the available information the Tribunal has taken care to draw no inferences adverse or unfavourable to the applicant from any absence(s) of evidence or information.  That said, in the absence of evidence or information pertaining to a relevant factor or factors it is impossible for the Tribunal to weigh those factors in the applicant’s favour.

14. The Tribunal found the applicant’s evidence as to her reasons for undertaking her studies, the relevance of those studies to her proposed future career goals, and the method she employed to select her course provider and her courses persuasive and compelling.  On balance it considers that these factors outweigh the concerns it has expressed regarding the economic disparity between Australiana Malaysia and the potential for economic incentives to bear upon the applicant’s decision-making in the future.  For these reasons the Tribunal accepts that the applicant is undertaking her current study or future study with the motives she claims and that her motives are consistent with those of a genuine student.

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

16. 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.

17. 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

1. 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.

Damian Creedon
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

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

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

3. 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

1. 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.

2. 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

1. 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

1. 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

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

2. 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

1. 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

1. 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.