Wong (Migration)

[2019] AATA 2652

Wong (Migration) [2019] AATA 2652 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Siew Ling Wong

CASE NUMBER:  1731513

HOME AFFAIRS REFERENCE(S):           BCC2017/3366479

MEMBER:T. Quinn

DATE:29 May 2019

PLACE OF DECISION:  Melbourne

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:

·Clause 500.212 (a) of Schedule 2 to the Regulations.

Statement made on 29 May 2019 at 8:32pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – retiree – study for personal betterment – Certificates III and IV in Commercial Cookery – Diploma of Hospitality Management – consistent with current level of education – limited assistance to applicant’s future – genuine interest – benefit of the doubt – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 (‘the delegate’) on 24 November 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 15 September 2017 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 24 November 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 13 December 2017, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. More than 17 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 15 April 2019, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicant responded to the s359(2) letter within the prescribed period, on 23 April 2019.

6. The applicant appeared before the Tribunal on 27 May 2019 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The Tribunal has proceeded to a decision having regard to all the information before it, including the Department file and all material and evidence provided by the applicant to the Tribunal.

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

   STATUTORY FRAMEWORK

9. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

10. 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?

11. In considering whether the applicant satisfies clause 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’ (‘the Direction 69’), made under section 499 of the Act. The 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.

12. 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.

13. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.

    [1]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The applicant in this case is a 54 year old female Malaysian citizen who first arrived in Australia on 16 June 2017 pursuant to an Electronic Travel Authority (Class UD) subclass 601 (UD-601) visa which was valid until 16 September 2017.[2]  The applicant has previous held an Electronic Travel Authority which was valid from 30 September 2005 to 30 September 2006.[3]

    [2]           See delegate’s decision.

    [3]           See delegate’s decision.

15. The delegate’s decision in this case is very brief.  It is an unusual situation as the applicant is a 54 year old retiree and has been forthright in that her motives in studying in Australia are more for personal betterment than for future employment gains.  The Tribunal considers that whilst the Direction 69 factors provide guidelines as to the value of a course to an applicant’s future, this does not necessarily mean that an applicant cannot still be a genuine student if their motives for studying are related to personal, rather than financial gain.  The Tribunal considers the applicant’s candour in her evidence about this issue has provided significant assistance to the Tribunal in coming to a conclusion in her favour as the Tribunal finds her submissions credible.

16. Prior to coming to Australia, the applicant completed secondary school in 1981 in Malaysia and then worked as a clerk, typing letters and documents from 1982 to 1991 at which point she gave evidence that she married her husband and her husband asked her to take care of their three children at home and so she was a housewife from 1991 to 2012 when she re-commenced employment as a clerk, typing in Malaysia.  She stated she has not been employed in her time in Australia and that she has personal funds to support her expenses here.[4]

    [4] See applicant’s response to the s359(2) letter.

17. In her response to the s359(2) letter and her oral submissions, the applicant claims that ‘this is more of a personal betterment than for seeking a job in the future’ and that she has a ‘passion to begin a Western cuisine which is not available in Malaysia’ without an Asian or Chinese influence. She also referred to a possible western fusion cuisine business with one of her children in which she could use her knowledge to assist them in the hospitality industry.

18. The applicant gave evidence at hearing that she initially wished to study in Australia to improve her English because she felt it was not adequate while she was in Malaysia and then she decided to learn cookery as she has always enjoyed cooking and hopes that one day she can help her children run their business.  When the Tribunal enquired about the applicant’s children’s whereabouts and employment, the applicant indicated that her son has just moved to Singapore and works in a hotel where he cooks desserts and cakes.  One of her daughter works as a supervisor in Malaysia and her other daughter is studying physiotherapy in Taiwan where she currently resides.  The applicant’s husband is in Malaysia and runs a timber flooring business.  When the Tribunal asked about what her husband thought about the applicant moving to Australia for such a significant period, the applicant stated that since they were married her husband travelled all the time and now she is travelling and that her husband has nothing to think.

19. The applicant has completed a Certificate I in EAL, she then commenced a Certificate II in EAL but said that she found the quality of teaching was poor at the particular education provider and after two months studying the Certificate II she decided not to complete the Certificate II in EAL and did not commence the Certificate III or IV in EAL and instead moved to a Certificate III in Commercial Cookery in October 2018, which she is currently studying, with an end date in September 2019, she has also indicated a future enrolment in a Certificate IV in Commercial Cookery followed by a Diploma of Hospitality Management, both of which should be completed by September 2020.[5]

    [5] See applicant’s response to the s359(2) letter.

20. The Tribunal accepts that the courses the applicant proposes appear consistent with her current level of education.  The applicant stated she was studying in a different area because she could not keep typing for the rest of her life in an office and that on a personal level she loves cooking, especially desserts, and wants to do more in this field.  To her credit, she acknowledged that the proposed Diploma of Hospitality may not be as important and she stated that she just wanted to learn more about cooking.  The Tribunal considers the courses will offer limited assistance to the applicant to obtain or improve her employment prospects, even allowing for reasonable changes to career or study pathways, and that they have limited relevance, if any, to her past employment but appreciates the applicant’s honesty in her answers.  It was difficult for the Tribunal to see how the applicant’s studies would assist or be relevant to a future business with any of her children as the applicant’s evidence in this regard was vague.  Ultimately she indicated it was only her son that the particular studies could apply to and she had not previously mentioned that he has recently moved to Singapore for a new job.  The applicant submitted that she would like to open a restaurant with her son where she could be a consultant and make desserts and that she anticipated her remuneration would be approximately $34,000AUD equivalent per annum.  The applicant’s son is unmarried and the Tribunal finds that it is not implausible that he could return to Malaysia and start some sort of a cooking-related business

21. The Tribunal enquired about whether the applicant could undertake the study in Malaysia.  The applicant stated that there are ‘not many good western food in Malaysia, I haven’t found any’. 

22. The applicant had good knowledge of her course and appeared to be enjoying her study considerably.

23. The applicant is not currently working and has expenses of $16,980AUD per year while living in Australia.  She owns a house in Desa worth $200,000AUD equivalent.  The Tribunal accepts that the applicant’s economic circumstances in Australia would appear to be an incentive for her to return to her home country.

24. The applicant has her mother, husband and one daughter in Malaysia.  She has one daughter who lives in Taiwan and one son who lives in Singapore.  She returned to Malaysia for her father in law’s 90^th birthday in May of this year.  She speaks to her family regularly through international calls and facetime.  Her daughter in Taiwan has visited her in Australia in early 2018.  The Tribunal considers that the applicant’s personal ties serve as a significant incentive for her to return to her home country.

25. The applicant gave evidence that shortly after she moved to Australia, her sister and her nephew moved to Australia also.  The applicant lives in Toorak with one housemate.  Her sister and nephew live in Box hill.  The applicant sees her sister and nephew approximately once a week.  The applicant attends church and gatherings with her sisters from the church.  The Tribunal considers that the applicant is in the process of cultivating meaningful ties to the Australian community but that such ties could not yet be described as creating a strong incentive to remain in Australia.

26. The applicant has travelled to Singapore in 2016, Taiwan in 2016, Indonesia in 2015, Japan in 2014, Thailand in 2013, Hong Kong in 2011 and Vietnam in 2010 for short periods on holiday.  The applicant stated she has had no visa or immigration issues in the past and does not have any potential military service obligations or political or civil unrest circumstances in Malaysia.  The Tribunal accepts this evidence.

27. The Tribunal is concerned about the limited assistance the proposed courses have to the applicant’s future, particularly the Diploma.  However, the applicant gave evidence in a forthright manner and her interest in the study of cookery appeared to the Tribunal to be genuine and the Tribunal considers that adding value to one’s future employment prospects is only one factor that needs to be considered when assessing an applicant against the criteria of ‘genuine’.

28. The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case.  Ultimately, the Tribunal deems it appropriate to give the benefit of the doubt to the applicant.  The Tribunal notes that the Diploma of Hospitality Management is due to finish in September 2020 and that the applicant is currently studying.  She is therefore less than eighteen months from completion.  Should the applicant make a further student visa application on the basis of an intention to undertake further study after this, the evidence she gave to the contrary in connection with this case will clearly be relevant to any assessment of her intention to stay in Australia only to study.

29. Having had regard to the applicant’s circumstances, her immigration history and all other relevant matters, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant meets clause 500.212(a) of Schedule 2 to the Regulations.

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:

    ·Clause 500.212(a) of Schedule 2 to the Regulations.

    T. Quinn
    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.