Wong (Migration)

[2018] AATA 2465

Wong (Migration) [2018] AATA 2465 (25 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Eileen Chin Hui Wong

CASE NUMBER:  1705619

Home Affairs REFERENCE(S):                BCC2017/748963

MEMBER:Stephen Witts

DATE:25 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 25 May 2018 at 9:42am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is a genuine applicant for entry and stay as a student – Various unrelated courses undertaken – Lack of incentives to return to home country – Strong incentives to remain in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 March 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 24 February 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 21 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   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. The issue in the present case is whether the applicant intends to stay Australia temporarily.

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

8. 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?

9. 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;

   ·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 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.

11. At the hearing the Tribunal had a discussion with the applicant regarding the issues and considerations laid out a Ministerial Direction 69.

    Background

12. According to the delegate’s decision record the applicant first arrived to study here in Australia on a student visa in July 2010. The applicant remained on student visas until early 2015 when she returned home for a period of two years during which time, she testified, she received treatment for various illnesses including an anxiety disorder and anorexia. Subsequent to that the applicant recommenced her studies back in Australia on 24 February 2017 after arriving on shore on a 601 Electronic Travel Authority visa on 6 February 2017.

13. The delegate assessed the applicant’s application for a student visa and rejected it on 9 March 2017.

14. According to the applicant’s evidence she first came to Australia from Malaysia in July 2010 to study English and to study year 10 and year 11 at Box Hill high School. After she completed these studies she decided to study Foundation Studies (Standard) at RMIT. In December 2013 she completed her foundation year.

15. The applicant is currently enrolled in a Certificate III in Commercial Cookery which commenced on 20 February 2018 and is due for completion on 30 September 2018. This is to be followed by a Certificate IV in Commercial Cookery which commences on 1 October 2018 and is due for completion on 24 March 2019 and a Diploma of Hospitality Management due to commence on 23 April 2019 and complete on 6 October 2019.

    Circumstances in home country

16. The applicant stated that she has her parents and three brothers back in her home country and that she remains in regular contact via social media and phone. She indicated that she has no problems maintaining her personal relationships back in her home country. For this reason, the Tribunal does not consider the applicant’s personal connections overseas to be a distinct incentive for the applicant to cease residence in Australia.

17. The applicant stated that her family owned property back in her home country and that her father was a businessman involved in timber retailing.

18. There is no significant relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, economic or political circumstances in the home country, civil unrest in the home country, circumstances in the home country relative to Australia or any other country, and the applicant circumstances in the home country relative to others in the country.

    Circumstances and study in Australia, and the value of the proposed course to the applicant’s future

19. The applicant stated that she is currently living in Australia with her brother who is a permanent resident. She stated that they own the property in Forest Hills that they are currently living in. The Tribunal finds that this arrangement is not an incentive for the applicant to cease residence in Australia.

20. The applicant stated that she does not work and her father is paying for her studies. The Tribunal makes no findings in this regard.

21. Adopting the procedure of the Act 359AA, the Tribunal read out the following statement to the applicant:

22. I’d like to talk to you about your study history and to do that I’m going to put to you formally under the law, a piece of information that I have. The information that I will put to you is something I consider would be the reason, or part of the reason, for affirming the decision under review.

23. I have before me, Provider Registration and International Student Management System records, otherwise referred to as PRISMS. This PRISMS record from a database that is kept by the education providers and details all of your certificates of enrolments, the dates that you remained enrolled and the outcome of the courses.

24. This information is relevant to the review because it may lead me to form the view that it documents a history of unrelated courses. It lists many courses that weren’t started, or that were started and shortly thereafter cancelled.

25. The consequence of this information being relied on by me may be that I form the view that you do not meet the requisite criteria, more specifically that you are not a genuine student. This may mean that you are refused to visa which you have applied for.

26. You may comment on or otherwise respond to this information. You may wish to ask for additional time to comment on or respond to the information.

27. The applicant stated that she was familiar with this information and she did not request an adjournment.

28. The PRISMS record indicated that the applicant completed year 11 in 2013 but did not go on to study year 12. The applicant then studied Foundation Studies English in 2013 which she completed in December of that year. The applicant then went on to study a Certificate III in Children’s Services which she finished in 2014. This was followed by an enrolment in a Diploma of Children’s Services (Early Childhood Education and Care) which was subsequently cancelled. The applicant then returned home for a period of two years. When the applicant returned to Australia at the beginning of 2017 she commenced her current area of study, a Certificate III in Commercial Cookery, which is being followed by other packaged courses, a Certificate IV in Commercial Cookery and a Diploma of Hospitality.

29. The applicant testified that after she finished year 11 she decided that she wanted to study in the children services area as she liked working with children and her parents encouraged you to do so. However while studying in this area she realised that this was not a course of study that she wished to pursue as she did not wish to work in the childcare area. Subsequent to this she said she became very ill with anxiety and bulimia and returned home to receive treatment. The Tribunal, whilst acknowledging that the applicant had a serious illness and stopped studying in 2015, is concerned that the applicant then had a two-year break before deciding to come back to Australia and pursue her study plan in a completely different area, commercial cookery and hospitality, that she had pursued when she had initially finished school between 2013 and 2015.

30. The applicant then testified that she had decided she wanted to study cookery and that Australia was a good place to undertake that study as she would have problems in beginning such study in Malaysia because of the difficulty with not having finished school there and the necessity of undergoing tests in the Malaysian school system that she was not confident about. The applicant now says that she is undertaking a packaged series of courses to pursue the intention of returning home to Malaysia to start her own business.

31. The applicant’s representative, on behalf of the applicant, testified that the applicant would have problems studying back at home in Malaysia because of the need to pass a national language test and gain a SPM certificate. The Tribunal is not convinced by this evidence as the applicant acknowledged that she was brought up in Malaysia and had been educated in Australia to end of year 11 level. The Tribunal finds that this explanation for further study here in Australia, that is, that the applicant can’t study in Malaysia is not plausible and is being used as an excuse to continue residence in Australia via the use of the student visa system.

32. The applicant provided to the Tribunal a statutory declaration dated 18 May 2018 where she stated that she did not have an appropriate certificate, called a SPM certificate, which apparently evaluates basic aptitude including language skills, which would enable her to study further in Malaysia. This certificate is equivalent to Victorian year 11 she stated. This certificate also evaluates knowledge of Malaysian government and communication. As stated, the Tribunal is concerned that this is not an adequate explanation as to why the applicant could not pursue her studies back in her home country subsequent to, studying for, and achieving this certificate level outcome.

33. She also stated in her Declaration that her father will support her financially to achieve her dream of opening her own food business in Malaysia. She also stated that she had to stop studying in 2015 due to an ongoing health condition which included a generalised anxiety disorder with anorexia bulimia. She stated that she took time off to rest and recover from her illness and travelled to different countries between 2015 and 2016 to help improve her health condition. She then finished her declaration by reiterating that she wanted to pursue her studies in cookery with the ultimate goal of setting up her own food business in Malaysia in the future. She also indicated that Australia gives you a greater exposure to multinational cuisines.

34. The Tribunal is concerned by the applicant’s evidence that she now wants to study cooking and hospitality after having changed her mind about working in the childcare sector in children services as this change in study trajectory was not adequately explained.

35. The Tribunal is concerned by this evidence as it indicates that the applicant does not have a coherent study plan for her current and future courses here which will not complete until well into 2019.

36. The Tribunal has significant concern that the value of the study now being pursued does not lie outside Australia, but in the grant of further student visas for the purposes of continued residence in Australia. The Tribunal has no confidence that the study now being undertaken will be finished and therefore has no confidence that the applicant will depart Australia.

37. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

    Conclusion on cl.500.212

38. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

39. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Stephen Witts
    Member