Ao (Migration)

[2024] AATA 282

Ao (Migration) [2024] AATA 282 (1 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiaoqun Ao

REPRESENTATIVE:  Ms Jane Tao (MARN: 0317868)

CASE NUMBER:  2305090

HOME AFFAIRS REFERENCE:               BCC2023/1088524

MEMBER:Lilly Mojsin

DATE:1 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 01 February 2024 at 11:01am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – Diploma of Business – reasons for not studying in China – value of the course – business plans – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

CASES
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16

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 Home Affairs on 22 March 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 February 2023. 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 review 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 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant appealed that decision to this Tribunal, annexing a copy of the department decision to the review application.

5. The applicant appeared before the Tribunal on 10 January 2024, via Teams video from Melbourne, to give evidence and present arguments.

6. The Tribunal had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.

7. The applicant used the services of an interpreter.

8. The Tribunal is  satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that the applicant could hear and see the Tribunal Member. The Tribunal was able to interact with the applicant and the interpreter and was able to maintain line of sight and appropriate communication throughout the proceedings.

9. The applicant was assisted in relation to the review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. At the time of application for the visa the applicant was enrolled in General English. At the time of this decision, a CoE from the Kingston Academy indicates that the applicant is enrolled in General English, the course ending on 2 February 2024 and she intends to study a Diploma of Business at Kingston Academy, commencing on 4 March 2024 and ending 2 March 2025 .

11. In her response to the s 359(2) invitation, the applicant provided a Genuine Temporary Entrant statement:

    I chose Kingson Academy because several friends of mine that had studied there recommended Kingston to me plus I had also done an online assessment of its website and found their courses are exactly what I wanted. First to improve my English and then to study its Diploma of Business course. Although I consider myself quite fortunate to have been fully employed in China, my secret ambition is to be self employed by owning a small business such as operating a small cafe when I return home. Also I had first visited Australia, particularly Melbourne some years ago, fell in love with Melbourne and that is also one of the reasons I decided to study in this beautiful city, so multicultural is so many ways.

    Obviously, there are business courses just as good and possibly superior in China that I could enroll in to learn how to operate a business. However, my main reason for wanting to study in Australia is the fact that in studying in Australia that would be the only way I can become fluent in spoken and written English. In fact, in the short space of time since I first arrived in Australia early this year, I have found my written and spoken English have vastly improved.

    I make contact with my husband almost every day and while speaking with him if our children are around, I would also chat with them as well. I also speak with my sister perhaps about twice a week as we are also very close to each other.

    As a student I am kept quite busy. I put my heart and soul into my English Language studies so that I can proceed with my Diploma in Business course once my English course is completed. Hence I am not currently involved in any community groups or organisations. However, I am very close with two persons Eva Li and Lisha Li, both have been very helpful in helping me to settle in when I first arrived in Australia early this year.

    As mentioned earlier my future plan would be to investigate the possibility of becoming a business owner by operating a small cafe business. An alternative plan would be to find employment with a reasonably big company as an executive in a management role. Whatever situation I end up with my proficiency in English will enhance my position in either as an executive or business owner.

    At this point in time it is rather difficult to provide details concerning remuneration as a management executive or my earnings as a cafe owner. Obviously as a management executive I can expect my annual salary would be at least AUD$24,000 plus. As a business owner and with the expertise I have learnt in my business course I would certainly hope that after a year of two after operating my cafe business I should be able to make a comfortable living.

12. At the Tribunal hearing the applicant told the Tribunal that she completed her studies at Adult’s vocational college in Kaiping City, Guangdong Province, China, secretarial and document management. This was in Guandong Kaiping city. She also enrolled in western pastry. She has been working as a procurement staff for 8 branch companies and distribution of those pastries. When she came to Australia she asked for leave on a temporary basis, her leave is for 2 years. She was not able to secure promotion due to her education background.  She did not have much opportunity to speak English in China.

13. The Tribunal asked her if she came on visitor visa for 3 month why she took  2 years leave. She then said that after she came to Australia she realised she needed to learn English and asked for leave.

14. Her husband works in customs. She has 2 sons, they are 12 years old. Her children are being cared for by her husband and father in Kaiping City. In regard to the applicant’s potential circumstances in Australia, the applicant said she does not have family in Australia. She does not work in Melbourne. She has been longing to improve herself as she was unable to obtain promotion. A qualification from Australia would improve her employability in China as it is an improvement. In Australia she can speak English. She has been passing her studies, they are in progress. Now she can understand and express herself. She is not working. She is being supported by her husband and her cousin, who lives in Melbourne. Her cousin is an Australia citizen and has lived here more than 20 years.

15. When asked why she would not study a Diploma of Business in China she said that she cannot imagine at her age studying in China. In Australia this is possible. Many schools in China have an age limit for enrolment and she will have to look after her family in China and she can put her whole heart in her studies here.

16. The applicant said that she is here to improve English and a business course  will improve her capabilities. A business course contents will help her understand the business aspects. When asked about the subjects she was to study she said she does not know what subjects she will study. She understands that the course is all about business operations and accounting. The Tribunal asked her how Australian business standards would help her get a job in China. She said that the main focus for her is to expand personal horizons and her dream is to run a coffee shop and she is interested in expanding her knowledge. Asked why she did not get a job in a café in Melbourne, she said at this stage she cannot, she has not done a coffee course, only a course about coffee and machines.

17. She has not worked in a coffee shop in China or in Australia. She wants to start a coffee shop when she returns to China. The Tribunal asked the applicant what enquiries she has made about opening a coffee shop in China and she said that she has not yet done so, but she has a friend who works in this business in China. The Tribunal asked the applicant what she was going to do about her job as she intends to open a coffee shop. She said there has already been a replacement. She is on leave but somebody else is in her job. She does not have a job to go back to. She said she might quit that job and pursue her own dreams.  She has a friend who is engaged in this industry in China. It was put to her that she is not working in Australia to get that knowledge.  If allowed to stay she intends to enrol in another course in relation to the coffee and will do another course after the diploma, she wants to do a coffee course. When asked what the course was, she said that it is coffee making.

18. She travelled to Hong Kong and Macau a few times to take children on holidays. She wants to set a personal example for her sons about studies.

19. The applicant’s adviser opined that it is the applicant’s intention on return to China and she knows that the applicant is a genuine student.

    REASONS AND FINDINGS

20. 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.

21. 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.

22. 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, which is attached to this decision, 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.

23. 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.

24. In Kumar v Minister for Immigration and Border Protection[1] the Full Court of the Federal Court held that the Direction requires that, in reaching the state of satisfaction required by cl 500.212(a), the decision maker should turn his or her attention to each factor during the decision-making process and consider whether and how that factor should be brought to bear in reaching that decision. The Court went on to note that [the Direction] does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.

    [1] [2020] FCAFC 16 (24 February 2020)

25. As the applicant is a citizen of China, there are no military service commitments for the applicant. There is no civil or political unrest in China. The applicant does no have an adverse immigration history.

26. The applicant is 46 years of age.  The applicant is from Kaiping City, where her children and her husband live. She does not have a job to return to in China.

27. The applicant, at the time of application, was proposing to complete an English course, at the time of decision she proposed to continue her study of a Diploma of Business at Kingston Academy and then to study a coffee course. 

28. Prior to her arrival in Australia, the applicant said that she completed secretarial and documentation management studies at Kaiping City Adult Vocational College followed by a pastry course. She worked in a procurement position in China but due to her educational background was not able to secure a promotion.

29. As for her reasons for not studying in China the Tribunal accepts that many schools in China have an age limit for enrolment and the applicant will have to look after her family in China. The independent evidence before the Tribunal[2] does not suggest that the applicant would be unable to study in China, even with having a family to look after and to improve her knowledge and assist in employment. There is adult education available in China and the applicant herself studied a western pastry course whilst working.

    [2] Education in China - Wikipedia

30. The Tribunal places weight on the applicant’s evidence changing during the hearing regarding her employment in China. The applicant came to Australia on a 3 month visitor visa. She initially told the Tribunal that she took 2 years leave of absence from her job but when put to her that she only had permission to remain in Australia for 3 months, she then recanted and claimed that she took 2 years leave when she was in Australia. Later in the hearing the applicant said that someone was now working in her job but she would ask to get it back. 

31. As to the value of the course to the applicant’s future, the Tribunal places great weight on the applicant not knowing which subjects she would be studying in the Diploma of Business course other than to say that the course is all about business operations and accounting. The Tribunal places weight on the applicant’s lack of knowledge regarding which coffee course she intended to study.  The Tribunal is of the view that prior to enrolling in a course the applicant would make some effort to ascertain the suitability of the subjects studied to her intended career, either as an executive in a management role or a coffee shop owner, especially as she was due to start the course in March 2024. Further the applicant when asked how Australian business standards would help her get a job in China she said that the main focus for her is to expand her personal horizons and knowledge. The Tribunal places little weight on the applicant’s claims that studying English in Australia and practising that knowledge whilst living in Australia may assist her in obtaining a job in China as she did not suggest at hearing that she had made any enquiries about future job roles, either as an executive in a management role, as she had claimed in her s.359(2) response or in her coffee shop.

32. As for the applicant’s goal to run a coffee shop, in China, the Tribunal places great weight that the applicant has made no enquiries about running a coffee shop and places no weight on her claim that she has a friend who has a coffee shop in China or on her claim she would seek a job as an executive in a management role. 

33. In regard to the applicant’s potential circumstances in Australia, the applicant does not have family in Australia. She has a relative in Australia that she claims she does not live with but her relative assists in her financial support as she claims she does not work and receives an income from her husband and her Australian relative.  

34. In light of the applicant not having a job to return to in China and in light of the applicant having no experience in either China or Australia running a coffee shop and the applicant not knowing what subjects she would be studying in her Diploma of Business course or which coffee course would assist her to establish her business in China and in light of her not making any enquiries regarding establishing a coffee shop in China the Tribunal is satisfied, on balance, that the applicant’s circumstances indicate that her Student visa is intended primarily for maintaining residence in Australia.

35. There are no other relevant matters.

36. 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).

37. 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.

38. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met.

39. 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.

    Lilly Mojsin
    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;

    d.whether 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.