UMMI MARDHIAH BINTI ABDULLAH DIN (Migration)

[2018] AATA 3177

UMMI MARDHIAH BINTI ABDULLAH DIN (Migration) [2018] AATA 3177 (8 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  UMMI MARDHIAH BINTI ABDULLAH DIN

CASE NUMBER:  1613498

DIBP REFERENCE(S):  BCC2016/1926468

MEMBER:P. Wood

DATE:8 July 2018

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 8 July 2018 at 5:00pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine temporary entrant – brief study history – management of personal connections – no study for a lengthy period – studied short courses – economic disparity with home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 376, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 572.223

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 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 2 June 2016. The delegate decided to refuse to grant the visa on 4 August 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because the delegate determined the applicant was not a genuine temporary entrant.

4. The applicant provided the Tribunal with a copy of the delegate’s decision record and confirmed in her oral testimony that she had read the document.

5. The applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

8. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)      the Minister is satisfied that 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)     …

9. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

10. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

11. The applicant is a 31-year-old female from Malaysia. Prior to coming to Australia, the applicant completed a diploma in medical laboratory technology in 2007. The applicant claims that she decided to study in Australia because she “found out Australian institutions offer special support systems to the international students to continue their academic career with a great comfort” (tf 49).

12. The applicant told the Tribunal that she suffers from epilepsy but did not provide medical evidence concerning this.

13. The applicant said that she separated from her husband in January 2014 and has been a single mother since. The applicant told the Tribunal that ex-husband is now unemployed and that her young daughter resides with her parents (the child’s maternal grandparents) in Malaysia.

14. The applicant told the Tribunal that she has two older brothers who continue to reside in Malaysia. The applicant told the Tribunal one of her brothers has previously brought her daughter to visit her in Australia (in 2015) and has offered to accompany her father to bring her daughter to Australia again in the future. At the time of the Tribunal hearing in December 2017, the applicant had only returned to Malaysia once since coming to Australia.

15. On 15 November 2017, the Tribunal emailed the applicant inviting her to appear before the Tribunal. The applicant obtained a certificate of enrolment in an approved course of study the following day, 16 November 2017. Prior to this, the applicant told the Tribunal that she was not enrolled in an approved course of study. The applicant said that she had been waiting for money from her father before enrolling in a course. For reasons which are set out below, the Tribunal does not accept this. The Tribunal considers that the applicant obtained a confirmation of enrolment for the purpose of appearing before the Tribunal.

16. The applicant told the Tribunal that she resides in Australia with good friends and that her future plan is not to return to Malaysia until 2020 when her daughter is due to commence secondary school. The Tribunal was concerned by this given that the applicant first enrolled in Australian vocational education in 2015 and has only completed one short English course since.

17. The applicant told the Tribunal that her and her father are planning to start a food and pharmaceutical equipment company which will be financed by one of her brothers. The applicant said that she needs to complete a Diploma of Leadership and Management to prove herself to her clients and suppliers. The applicant’s written submission to the Tribunal (tf 48) refers to wanting to work in this industry but makes no reference to going into business with her father or brother. This causes the Tribunal to be concerned that the business plan she explained in her oral testimony may be a recent invention.

18. The applicant also told the Tribunal about wanting to work for international companies and provided Nestlé and Coca-Cola as examples.

19. The applicant told the Tribunal that being in Australia allows her to practice her English. The Tribunal accepts this is the case.

20. The applicant was granted her initial student visa on 25 August 2015 which was current until 3 June 2016. The day prior to her visa expiring, 2 June 2016, the applicant submitted the visa application which is before the Tribunal. At this time, the applicant was enrolled to undertake a Certificate IV in EAL, a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management.

21. The applicant’s study history in Australia is particularly brief. Between 23 March 2015 and 20 September 2015 the applicant undertook, and completed, a Certificate III in EAL. According to the delegate’s decision record, the applicant did not undertake study between 21 September 2015 and 16 May 2016. In her oral testimony, the applicant confirmed that since September 2015 she has not obtained any further qualifications but she claims to have completed two subjects within the Certificate IV in EAL.

22. The applicant claims that she has attempted to attend classes but that she has suffered from depression and anxiety. The Tribunal has had regard to the applicant’s written explanations (df 25 & tf 49) and letters from the applicant’s psychologist (tf 44 18 February 2016, tf 43 18 August 2016, tf 42 16 January 2017, tf 41 13 July 2017, tf 40 26 October 2017).

23. The applicant previously worked as a sales manager in Malaysia and earned the equivalent of approximately AU$500 per month. The applicant told the Tribunal that she also worked part-time as a tutor teaching various subjects in the evenings. She complained to the Tribunal of the high cost of living in Malaysia and said that she was not satisfied with her income in Malaysia.

24. The Tribunal accepts that the study proposed by the applicant may improve her employment and remuneration prospects in the future. The Tribunal also observes that the study proposed is consistent with her current level of education.

25. The applicant travelled to Indonesia for a period of two weeks in 2014 for a work/sales visit and the Tribunal considers this travel unremarkable. There is nothing before the Tribunal to indicate that the applicant has experienced visa issues in any other country.

26. The Tribunal finds that over an extended stay the applicant has been able to manage personal relations overseas by living in Australia, by keeping in touch from Australia, and through visits.  In these circumstances, the Tribunal does not consider the applicant’s personal connections overseas to be a distinct incentive for the applicant to cease residence in Australia.

27. According to the documentation provided by the applicant, the applicant has been experiencing issues arising from the breakdown of her marriage for several years. The Tribunal observes that in circumstances where it may be anticipated that personal problems will prevent an applicant from achieving course progress an applicant has a very definite choice. Put simply, it is not incumbent upon an applicant to persevere in Australia in a manner which does not lead to the gaining of skills and qualifications. 

28. It is important to highlight that when a student remains in Australia on a student visa the student remains bound to achieve satisfactory attendance and course progress (implied by Condition 8202). The Tribunal observes that it is perfectly acceptable for a student to decide to take a break in their home country or elsewhere, to convalesce with family, until such time as the student feels able to study effectively and successfully in Australia – and then to seek a student visa for that purpose.

29. Another choice is to remain in Australia on a student visa which the Tribunal considers is a decision to recommit to achieving satisfactory course progress. What the applicant has done in this case is remained in Australia and not studied. Whilst the applicant is not required to study on her bridging visa, she is free to do so. Of concern, the applicant was unable to explain to the Tribunal how she spends her days. Even taking into account her medical issues, the Tribunal is not persuaded that the applicant has been unable study for the length of time which she claims.

30. The Tribunal is concerned that the applicant was unable to explain how she spends her time. This causes the Tribunal to be concerned that the applicant may be working in Australia. It is common knowledge that there is an economic disparity between Australia and Malaysia and the Tribunal considers that the applicant’s ability to earn Australian dollars working in Australia is a significant incentive for her to seek to continue residence here.

31. The Tribunal to the applicant her PRISMs and movement records in accordance with the procedure in section 359AA of the Act and discussed her response with her.

32. The Tribunal questioned the applicant as to whether there were any issues of political or civil unrest which would prohibit her from returning to Malaysia. The applicant told the Tribunal that she considers Malaysia to be peaceful but said that she was scared of her ex-husband.

33. The Tribunal does not accept the applicant’s bare assertions that she will complete the study she proposes. Overall, the Tribunal considered that the applicant was less than forthcoming in her testimony.

34. The Tribunal is concerned that the applicant is undertaking a series of short, inexpensive courses and has been onshore for a lengthy period of time relative to the type of study presented to the Tribunal. The Tribunal concludes that the applicant is seeking to circumvent permanent migration channels through using the student visa program to maintain de facto residence in Australia.

    Section 376 certificate

35. The Tribunal file contains a certificate pursuant to s.376 of the Act dated 6 July 2017 from the Department. The certificate indicates that certain parts of an anonymous “dob in” allegation provided to the Department could identify the source. The Tribunal exercised its discretion to release the material to the applicant and put the information to the applicant in using the procedure in s.359AA of the Act.

36. The information alleges the applicant has charged Malaysians citizens to assist them to apply for protection visas in Australia. The applicant confirmed she understood why the information is relevant to the review. She was offered an adjournment to consider her response but preferred to provide a response immediately. The applicant denied the allegation. She said that every time a Malaysian citizen asks her to assist them to apply for a protection visa she tells them to apply for a student visa instead.

37. The Tribunal has carefully considered her response. Given that the allegation lacks specifics and is from an anonymous source, the Tribunal has placed no weight upon the material covered by the s.376 certificate.

38. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

39. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

40. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    P. Wood
    Senior Member