Cai (Migration)

[2020] AATA 3616

Cai (Migration) [2020] AATA 3616 (31 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Xueting Cai

CASE NUMBER:  1915064

HOME AFFAIRS REFERENCE(S):          BCC2019/1422511

MEMBER:Elizabeth Tueno

DATE:31 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 31 August 2020 at 12:11pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – application for student visa after arriving as tourist – availability of similar courses in home country – comparative costs and expenses – incentives to remain or return – parents and child in home country – future employment plans – previous compliant study in Australia – decision under review affirmed

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

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 28 May 2019 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 20 March 2019. 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). The delegate was not satisfied that the information provided by the applicant demonstrated that the met the temporary entrant requirements for the grant of a student visa.

4. On 7 May 2020, the Tribunal formally wrote to the review applicants pursuant to section 359(2) of the Act inviting the applicant to provide further information, including in relation to their enrolment, to the Tribunal.  On 21 May 2020, the applicant responded by providing the requested information.  The applicant stated that she consented to the Tribunal deciding the review without conducting a hearing. 

5. The Tribunal is satisfied that the review applicants were properly sent an invitation to provide further information under section 359(2) of the Act.  The invitation was sent to the review applicant by email, being the address provided by the review applicant in connection with this application for review.

6. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 genuinely to stay in Australia temporarily.

9. 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?

10. 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.

11. 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.

12. The Tribunal has had regard to the evidence provided by her to the Tribunal and also to the contents of the Department’s file. 

13. The applicant is a 36 year old woman from China who arrived in Australia on a tourist visa 14 April 2019.  A few weeks before this visa expired, she applied for this student visa in order to study an Advanced Diploma of Leadership and Management (“the proposed course”), which is due to be completed on 4 October 2020. 

14. The applicant stated in her s.359(2) completed questionnaire that she realised that to study the “good business management” courses in China that all taught in Beijing and that the courses mostly cost around RMB 60,000 per year (just under AUS $12,000 at today’s currency conversion rate) and are taught in Mandarin.  She said if she studied in Beijing, she would have to travel a lot between her hometown and Beijing, which “would be a huge waste of time and money”.  She also said that studying in Australia would allow her to practice her English language skills.  She offered the same reason to the Department in a genuine temporary entrant statement (“GTE statement”).

15. As the Tribunal understands the applicant’s reasons, she is not studying in China because of the cost, the travel between her hometown and Beijing and because she could practice her English in Australia.  The Tribunal does not consider these to be sound reasons for not undertaking the proposed course in her home country.  To undertake a year of study in Australia, the applicant needs to have not only the tuition fees but also a certain amount to cover living expenses amongst other things.  In the applicant’s case, she would need approximately $22,000 for living expenses and a return flight home.  This does not include tuition fees.  The Tribunal has been unable to determine the tuition fees for the proposed course however it is confident in assuming that it would costs a few thousand dollars.  The applicant provided evidence that she had access to AUS $35,000 in order to study in Australia.  This is a significant amount of money and equates to approximately RMB 177,000.  The Tribunal cannot imagine that it would cost this much for the applicant to study a similar course in Beijing, even taking into account any travel between her hometown and Beijing or even accommodation in Beijing.  It is generally far easier to relocate in one’s own country than to an entirely new country which separate’s that person even further from everything they are familiar with.  Lastly, in relation to the applicant’s reason about studying in English rather than in Mandarin, there is no evidence that speaking English is a requirement for the applicant’s job.

16. In relation to the applicant’s personal ties to her home country, the Tribunal the applicant’s evidence that she has a parents and her own child continue to reside in China.  She says that she often contacts her family in China by WeChat, mostly by messages by sometimes by video calls.  She said she is contact with them once or twice a week, especially with her child.  Other than family, she provided no evidence of other community ties.  The applicant has not returned to China since arriving in April 2019.  While this is not a significantly long period of time to be in Australia without returning to China, it contradicts the applicant’s evidence about the reasons why she chose to study in Sydney.  In her GTE statement, she said, “I chose Sydney also because it is very convenient for me to return to my home country to visit my family and friends”.  She also said that she wants to return to China to look after her parents when they retire.  The applicant does not appear to have prevailed herself of this convenience to return to China to visit her family in friends in the last year and a half.  This does suggest that the having family and friends in China is not a significant incentive to return.

17. The Tribunal has considered the applicant’s economic circumstances.  She has provided evidence to the Department that she has approximately AUS $35,000 in a bank account.  This is the only asset that she provided information about.  She also stated that she wants to return to her accounting business in China, which she has done as self-employed for around eight years.  She said that she wants to receive RMB 30,000 per month in her business when she returns.  However, she did not provide any information about what she was earning prior to coming to Australia. 

18. The cash deposit she provided evidence of is only enough to cover her living expenses for the duration of her course, given that she said in her questionnaire that her living expenses total around AUS $30,000 per annum here.  The applicant has a business licence that was established in 2011 and remains operational until 2031, however it is unclear how this relates to the applicant and her business. The licence is held by Fuqing City Ronghui Geomatics Co Ltd and carries out business in the engineering and construction industries.  There is no mention of accounting in the business licence.  There is no information tying the applicant to this company.  The Tribunal is not convinced that the applicant has demonstrated that her economic circumstances would be a significant incentive for her to return. 

19. The applicant stated in her questionnaire that she has no concerns about military service commitments in China.  She also has no concerns about any political or civil unrest in China.  There is no evidence to suggest otherwise.  Accordingly, the Tribunal takes into account favourably for the applicant.

20. In relation to the applicant’s potential circumstances in Australia, the Tribunal notes that this is the second time the applicant has travelled and resided in Australia for the purpose of study.  The first occasion was in 2001 to 2003 when the applicant completed language study and years 11 and 12 in Australia.  It is noted that she did return to China after the completion of this study, which is weighed in the applicant’s favour.

21. The applicant said her GTE statement the following about studying in Australia:

    I have always been fascinated by Australia’s multiculturalism.  I know that studying abroad in Australia will be an experience that I will never forget.  With my past experiences studying abroad in Australia, I believe I will be able to copy with studying in Australia by myself, and I think that I will be able to immerse myself with the social atmospheres here in Australia completely.  I am looking forward to meeting new friends from different backgrounds and learn about different cultures, and also reuniting with high school friends that I may not have contacted for a while who are still in Australia.  I am looking forward to expanding my global networks and developing long-lasting friendships.  The reason I chose to study in Sydney is how dynamic Sydney is.  I chose Sydney also because it is very convenient for me to return to my home country to visit my family and friends. 

22. It is unclear why the applicant came to Australia on a visitor visa and then decided to enrol in a course of study here.  However, what is clear is that the applicant does have personal ties to Australia in that she has friends in Australia from the last time she studied here.  She also wants to make new friends and connections. 

23. Whether or not these ties are sufficient for the applicant to want to remain in Australia is unlikely.  The applicant left Australia 16 years before she returned in 2019.  If she has friends in Australia, after the passing of such a long period of time, it would be natural for her to want to see them.  She has some knowledge of Australia and Sydney because she lived here 16 years ago.  The Tribunal does not make a finding that the applicant is using the student visa to maintain ongoing residence in Australia or that she is attempting to circumvent the intentions of the migration program.  There is not enough evidence to support such a finding. 

24. In relation to the value of the propose course, the Tribunal takes into account the applicant’s current level of education.  She completed year 11 and 12 in Australia and has gone onto complete a two and a half year course in Beijing from September 2015 to January 2018, where she studied accounting at Beijing Foreign Studies University.  In her GTE statement, the applicant describes this course simply as a Certificate in Accounting.  Based on this information, it is difficult to conclude whether or not the proposed course is consistent with her current level of education or not.  Given that the accounting course was for approximately two and a half years and the proposed course is approximately one year, it is like that the proposed course is a level lower than her accounting studies and accordingly is unlikely to be consistent with her previous studies. 

25. She said in her questionnaire that her plans upon completing the courses are as follows:

    I will be returning to China when I finish my studies in Australia.  I want to gain knowledge and skills in a range of business functions through my studies and prepare myself to be a successful business leader.  I definitely will not stay in Australia because I have my own family in China that I need to take care of.  As I am a single child, I want to by my parents’ side when they retire and age so I can better care for them.  I want to increase my business sales performance and team efficiency, and in turn, provide more income for my parents. 

26. In her GTE statement, the applicant said that owns her own company and an accounting department but for a long time she has wanted to expand her business management skills so that she can become a more successful leader.  She said that she realised she had weak management abilities when her business partner took leave and the company’s sales performance went down drastically. 

27. The applicant has not provided sufficient evidence about how the proposed course will assist her and her business.  It is not known, for example, how many employees are engaged by the business, the nature of the work the business engages in, what exactly is her role in the business and that of her business partner or an indication of her current income and the business revenue.  She states that she wants to receive an income of RMB 30,000 per month (around AUS $6,500) and AUS 78,000 annually.  She provided no information about her current level of remuneration. 

28. While the proposed course would appear on the face of it to be relevant to her desire to become a better leader, the Tribunal considers that there is not sufficient evidence for it to conclude that the proposed course will not assist her in obtaining employment or improving her job prospects.  This is because the applicant is self-employed and already running a business.  Whether or not it would assist the business is unclear, since the applicant’s role in the business is undefined and she appears to have at least one business partner with the necessary skills in a leadership role. 

29. As to remuneration, the Tribunal is unable to find that the proposed course will assist the applicant in increasing her remuneration as there is no evidence about what she was earning before coming to Australia in 2019. 

30. Lastly, the Tribunal has had regard to the applicant’s immigration history.  As mentioned above, the fact that the applicant has studied in Australia 16 years ago and left to return to China is considered by the Tribunal in the applicant’s favour.  There is no evidence that she has been refused a visa or had a visa cancelled by another country, which is also in the applicant’s favour. 

31. On the basis of the findings in relation to the value of the proposed course, the applicant’s lack of sound reasons for not studying in her home country and circumstances in her home country, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and therefore the applicant does not meet cl.500.212(a).

32. 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.

33. 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

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

    Elizabeth Tueno
    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.