Yap (Migration)

[2018] AATA 1386

Yap (Migration) [2018] AATA 1386 (6 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Siow Kim Yap

CASE NUMBER:  1619197

DIBP REFERENCE(S):  BCC2016/3070225

MEMBER:Stephen Witts

DATE:6 April 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 06 April 2018 at 3:40pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is a genuine temporary entrant – Cancelled enrolment in business related courses – Completed English as an Additional Language course – Unable to articulate how business courses shall support future career prospects – Personal incentive in remaining in Australia – Two children studying in Australia

LEGISLATION
Migration Act 1958 ss 65, 499

Migration Regulations 1994 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 on 9 November 2016 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 15 September 2016. 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 28 March 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 that the applicant does not genuinely intend to stay in Australia temporarily.

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

7. 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?

8. 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.

9. 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.

10. At the hearing the Tribunal discussed with the applicant the issues which focused on the considerations laid out in Ministerial direction 69.

    Background

11. The applicant is from Malaysia and has been the holder of multiple tourist visas into Australia since February 2012. Her last tourist visa was granted on 9 September 2015 and expired on 28 September 2016.

12. At that time the applicant was proposing to undertake several business-related courses in Australia. These courses were Certificates III and IV in Business from 28 November 2016 to 24 November 2017 and from 28 January 2018 to 14 December 2018; and a Diploma of Business from 28th of January 2019 to 24th of January 2020. All of these enrolments were subsequently cancelled.

13. The GTE criterion requires that the applicant is a genuine student because the applicant intends to stay in Australia temporarily when assessed with consideration of the factors outlined in ministerial direction 69.

    Circumstances in home country

14. The applicant testified that she was an experienced businesswoman who owned a traditional noodle snack shop. She had owned this business for 14 years prior to her arriving in Australia. In her evidence before the Tribunal she claimed that she still owned this business and that it was being currently leased out.

15. The applicant stated that she had been running her business back at home in Malaysia since finishing school and has no other prior qualifications or completed study before coming to Australia on a tourist Visa. She indicated that she wanted to come to Australia because it has a good environment and is a great place to study. She stated to the Tribunal that she had not considered studying back in her home country.

16. The applicant indicated that she had not been back to her home country since arriving here in February 2012 but that her family has visited her here twice.

17. The applicant indicated that she has a husband and 17-year-old son back at home and that she has aunties and other family members there as well.

18. The applicant testified that she was in regular contact with her family via WeChat and other means and was able to maintain her relationships effectively. Her family visited Australia regularly.

19. The Tribunal finds that over a substantial stay the applicant has been able to manage personal relationships overseas by living in Australia, by keeping in touch from Australia, and by family visiting her here in Australia. For these reasons, the Tribunal does not consider the applicant’s personal connections to be a distinct incentive for the applicant to cease residence in Australia.

20. The applicant stated that property owned overseas constituted an incentive to cease residence in Australia. Property overseas is readily sold for cash, or indeed may simply be leased out and may instead producing income in the form of rent. This is the case in this situation. The holding of such property is therefore no effective incentive to cease residence in Australia. The applicant also indicated that she had run a business back in Malaysia for 14 years before coming here. She also stated that that business was now leased out on a long-term basis. The Tribunal considers that as the business was leased out on a long-term basis it did not constitute a reason to cease residency in Australia and return home.

21. When asked to consider why she had not undertaken study in her own country the applicant stated that it was just not something she had considered.

22. 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, or the applicant’s circumstances in the home country relative to others in that country.

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

23. The applicant stated that she had two children currently on student visas in Australia. One is 17 years old and is studying a Leadership and Management course, the other is 29 and studying a commercial cookery course.

24. The applicant indicated that she was currently renting in Melbourne with classmates. She stated that she was not currently working and was paying for her studies via her husband who was giving her money. He worked back at home as a tourist guide.

25. The applicant indicated that she was unable to proceed with the original three business-related courses that she was enrolled to study. She indicated that she was unable to manage the courses due to a lack of English proficiency and the difficulty of the courses.

26. She then testified that after realising she could not manage this form of study that she embarked upon improving her English by undertaking various certificates in EAL. These included a Certificate I in EAL which she undertook from 20 February 2017 to 18 August 2017. She then did a Certificate II in EAL from 18 September 2017 until 17 March 2018. She says she is now studying a Certificate IV in Business which began on 28 January 2018 and is due for completion on 14 December 2018. She is also enrolled in a Certificate III in EAL which is due to commence on 15 April 2018 and finish on 14 October 2018. She has also enrolled in a Diploma of Business which begins on 28 January 2019 and is due for completion on 24 January 2020. In her statements to the Tribunal the applicant indicated that she thought she would learn new skills and techniques over the next two years that she could bring back home to a business in Malaysia. She stated that the skills she would learn included media management, recruitment, and how to introduce new service items. She reiterated that her business was being leased out and that in future she will be able to take the business back up and operate it.

27. In her evidence to the Tribunal the applicant stated that her study here in Australia was part of this plan to further develop her business back in Malaysia. In her statement to the delegate she made general statements about wanting to improve her business skills. She did not provide any more specific evidence. She also indicated that she would be working during the period of study in Australia and that she was enjoying the local lifestyle. She stated that working part-time here was an important part of her study plan. However in her evidence to the Tribunal she indicated that she was not working and relying on her husband’s income.

28. The Tribunal is concerned that the applicant’s stated plan of learning real and coherent business skills to run her noodle and snack business back in Malaysia is not a genuine study incentive. Instead the applicant has abandoned her business study and is now embarking on further English-language courses and a Diploma of Business.

29. The applicant’s non-commencement of studies and lack of academic progress is of concern to the Tribunal. The Tribunal is also concerned that the applicant could not adequately explain the reasons why she originally undertook business courses over a significant period of time without adequately being able to understand English, thereby having to drop out of these courses. She then indicated that she needed to do several certificate courses in EAL before she could then embark on her business courses.

30. The Tribunal considers that a genuine applicant for entry and stay as a student is a person who genuinely intends to be a student in Australia. The primary occupation of a student is to study and to achieve academic progress. The applicant could not articulate how the proposed study would assist her in continuing her business, a business that she has run for 14 years and has now leased out. The tribunal is concerned that the applicant could not articulate a specific business plan for her future back in her home country once study was completed.

31. The applicant claims that her intention has always been to stay in Australia temporarily and that that intention is still held. If that is and was so, the Tribunal considers the applicant would have departed Australia in November 2017 or thereabouts, when she realised that she was unable to achieve any study result in her business courses.

32. The fact that the applicant instead proposes further study indicates to the Tribunal that the applicant’s intention is not to cease her temporary stay in Australia. It is a Tribunal’s view that the applicant’s main purpose of being granted a further student visa is to maintain ongoing residence in Australia.

33. The Tribunal has significant concern of the value of the EAL courses the applicant has recently started, and that the applicant really wants the granting of further student visas for the purposes of continued residence in Australia. The applicant could not explain why she could not have progressed her English via courses back in her home country. The Tribunal also finds that the applicant has considerable personal incentive in remaining in Australia with her two children, also on student visas. The applicant has indicated that she has no problem maintaining contact with the rest of her family in Malaysia and that they regularly visit in any case. The Tribunal therefore has little confidence that that the current courses will be completed and has little confidence that the applicant will remain in Australia temporarily.

34. 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

35. 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.

36. 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

    .

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

    Stephen Witts
    Member