Chou (Migration)

[2021] AATA 2317

Chou (Migration) [2021] AATA 2317 (1 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cheng-Li Chou

CASE NUMBER:  1837026

DIBP REFERENCE(S):  BCC2018/4597213

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         1 April 2021 at 2:35 pm (WA time)

DATE OF WRITTEN RECORD:                19 April 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 19 April 2021 at 11:52am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– significant period of time living in Australia – not a genuine temporary entrant – previous educational level– proposed courses have minimal relevance to future work –use the student migration program to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Regulations 1994, Schedule 2, cl 500.212

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD  [10.54 am]

1. On 19 October 2018 you applied for a Student (Temporary) (Class TU) visa. The decision-maker from immigration, who was called a 'delegate', refused the visa application on 29 November 2018. On 18 December that year you applied to this tribunal for that decision to be reviewed. Your application was refused because the delegate decided you did not satisfy the requirements of clause 500.212(a) of schedule 2 to the Migration Regulations.

1. It is useful to briefly read out the reasons why the application was refused.  You lodged your current, being this student visa application, on 19 October 2018. At that time, you provided a confirmation of enrolment to undertake the following courses of study.  One was a graduate certificate of management and one was a graduate diploma of management.  They were the relevant courses at that time.

1. The delegate's decision says that he or she had considered your circumstances in your home country, Taiwan, as to how your studies in Australia may benefit your future career prospects.  Your genuine temporary entrant submission provided only vague information in the view of the delegate.  You had said your course of study would enable you to advance your career.  You had not provided any convincing evidence to support the claim and the delegate gave it little weight.

1. On balance the delegate was not satisfied that your study in Australia will assist you in improving your prospects in your home country in the future.  In regard to your circumstances in your home country of Taiwan the delegate noted that you are currently employed as a furniture exporter.  I note the delegate accepted that as a matter of fact.

1. As the tribunal, I am conducting what is called a 'hearing de novo' which is a hearing from the very beginning.  I am not bound to accept findings of fact by the delegate.  The delegate noted you have family ties to your home country but was not satisfied that you have incentives to return to Taiwan at the end of your studies.  The delegate considered your immigration and study history.  They noted you first arrived into Australia on 22 August 2004 on an electronic travel authority visa.  You departed on 21 September 2004.  You returned on 13 December 2006 on a working holiday visa.  You were subsequently granted a student visa on 6 June 2008 to enable you to study a vocational hospitality course.  I call that 'the first visa'.

1. You were then granted a second student visa on 31 October 2011 to enable you to study a certificate III in hospitality; I call that 'the second student visa'.  You were then granted a third student visa on 17 July 2012 to enable you to study a diploma of hospitality.  You were then granted a fourth student visa on 15 October 2013 to enable you to study a diploma of diploma of international business.  The delegate noted that you were then granted a fifth student visa on 18 March 2015 to enable you to study a diploma of business administration.  At a later point, after you had returned to Taiwan, you were then granted an electronic travel authority on 27 June 2018 and you have been in this country ever since.  So, for all those reasons the delegate decided that you did not satisfy those requirements.

1. In making this decision about your application I have considered everything that you and your representative provided to both the department and tribunal, the evidence that you have given to me and your arguments as to why the visa should be granted.  I am considering your application as if I were the original decision-maker from the beginning and I accept that I must follow the same laws and the same regulations that the delegate was required to.

1. I invited you to participate in a hearing because I was not able to make a decision on what I had before me.  I needed to hear from you and any witnesses.  I have given you opportunity to present evidence and to present your arguments relating to the issues in your case.  When introducing the hearing back in February I said to you that preferably these hearings would be conducted face to face.  I explained to you at the time because of the COVID-19 pandemic and other matters that I have to consider every case on a case by case basis as to whether to hold a hearing face to face or remotely.  That is a requirement of me.

1. I considered if it was reasonable to hold a hearing by telephone having regard to whether you would receive a fair opportunity to give evidence and present your arguments, your individual circumstances, whether the hearing was able to be conducted fairly and effectively.  I discussed this with you and I was satisfied that I could provide you with a fair and a just hearing.  We have talked on phone three times and I am satisfied that you have been able to interact with the hearing process at all times and that is why I ensured that there was an interpreter here in your language so that we could communicate properly.

1. On 25 March the tribunal forwarded a request for further information to you inviting you to provide sufficient information to satisfy the key requirements that you are currently enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.  You have provided information to satisfy me that you are currently enrolled in a registered course of study so that has left the only determinative issue for me is whether you are a genuine applicant for entry and stay as a student.

1. I have considered all of the documents, which is a significant number, and all of the information you have provided for me to consider.  Something quick about the law: in assessing if you are a genuine temporary entrant for a student visa I must consider and apply clause 500.212 of the migration regulations and a legislative instrument called 'ministerial direction no. 69'.  It is titled, 'Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications'.  Together I must assess that if you intend to genuinely stay in Australia temporarily as a student, if you intend to comply with the visa conditions, and if you are a genuine applicant for entry and stay as a student because of any other relevant matters.

1. In applying ministerial direction no 69 I must have regard to, and I must show that I have had regard to, your circumstances in your home country of Taiwan and your potential circumstances in Australia; the value of the course to your future; your immigration history; if you are a minor - well, clearly you're not a minor; and any other relevant matters.  So that gives the background to the considerations that I have to give.  I note that your representative had sought extensions of time by which to provide the requested information and I note that I agreed on two or three separate occasions to provide you with extra time. 

1. I now look at your enrolment history in Australia.  You first enrolled into a certificate III in hospitality which you studied between 7 November 2011 and 8 June 2012; you succeeded.  You enrolled in a diploma of hospitality between 2 July 2012 and 26 July 2013; you completed that.  There was a diploma of management between 23 September 2013 and 30 May 2014; you successfully completed that.  There was a diploma of international business between 28 July 2014 and 30 January 2015; you successfully completed that.

1. You enrolled into a diploma of business administration between 27 June 2016 and 2 December 2016; that enrolment was cancelled.  There was further a graduate diploma of strategic leadership between 6 May 2019 and 4 May 2020; you did finish that.  So, what I note is that between May 2016 and May 2019 there was a three-year gap.  When I raised that with you you explained that as being a period of time by which you had returned to Taiwan.  I can accept that based upon your travel history.

1. There were further enrolments which must have been after you returned to Australia on the visitor visa.  They included a graduate diploma of management learning; a graduate certificate in management learning; a Master of Business Administration.  You have enrolled in those courses to commence 10 February 2020 and to complete by 8 May 2022.  It seems that enrolled into the Master of Business Administration, number 095353M, to start 14 September 2020 to 8 May 2022.  So, you are currently enrolled I accept.

1. Looking at your travel history, or your movement history, it appears to me that since 2008 or '07 you have spent eight or nine years in various periods living here in Australia.  You did respond to the request for information and these are key things that I can gather from that.  You had completed a business administration qualification in Taiwan between September 2001 and June 2005.  You had worked in Taiwan at the Formosa Hotel as a receptionist up to June 2005 at the RT-MART International as a cashier between February 2005 and May 2005.

1. You had worked for your mother's hamburger business, the countryside burger takeaway, as a cook and deputy store manager between March 2003 and December 2006.  You then worked as a sales assistant for your own company, being Ju Kang Limited, between September 2009 and November 2011.  I note that your mother's hamburger business had ceased trading sometime in 2013.

1. You provided information in relation to your visas and I note that the visa that I am dealing with at the moment is the sixth application for a student visa in Australia for you.  I am aware of your intentional travel.  You have travelled to the United Arab Emirates, Turkey, Malta, Japan.  There are no adverse conclusions that I can reach in relation to your international travel.

1. You provided a lot of information in relation to your application.  You provided information as to whether there were similar courses available to you in your home country, I have considered that; your work and expenses in Australia; why you chose your current education provider, being Torrens University.  You provided a lot of detail about your family.  You have a very extended family in Taiwan.  I can accept that your family does present as incentive for you to return to Taiwan at some future point in time.  I must of course look at your intentions as of time of decision.

1. You also provided information about your employment history in Australia.  It seems that you had been employed as a kitchen assistant from July 2007 up to December 2007.  Thereafter you were a self-employed director of a company called Dream Sound registered in Hong Kong.  That is your own entity.

1. You provided information about your future plans in your written response.  There was a lot of information.  I have considered it and I consider that whilst it is high in volume in terms of the amount of information it does lack in substance.  There is a lot of what I called 'business speak' and the information leaves me with little in the way of clear insight into how your current studies link into your future plans in your home country.  For example, the nature of your role and involvement in the furniture company and the business concepts for Dream Sound was quite unclear from that information in my view.

1. You outlined your contacts with your family in your home country.  I accept that you do have strong connections and contacts in your home country.  You provided information about your community ties, in particular the Chinese Music Club, Tzu Chi Foundation, the Fuzhi Foundation, and a number of other entities.

1. There was a question about your community ties to Australia.  You provided no information.  Considering the amount of time that you have been living or connected with Australia for I find it very difficult to accept that you would not have created some community ties in Australia in that period of time. 

1. You provided some information in relation to the details of your remuneration in your home country, or third country.  You provided much of the same information that you had in earlier points of the document.  I note that you had claimed that in additional to developing the company's brand Dream Sound will develop other new products and strategically cooperate with the processing department of the furniture company.  You say:

i.       In the future Dream Sound will continue to innovate, continue to improve and establish a sustainable development of the enterprise and that we also hope to implement entrepreneurship, give back to society, charity, and help more people in need

1. You provided a submission, and these are the key things I gained from that submission.  You indicated in that submissions that you had a 99 per cent attendance rate at your study, that you are now performing as a genuine student, that the current course - the master of business administration at Torrens University - is a further advancement of your current knowledge and skillset.  Based upon the qualification Bachelor of Business Administration and graduate diploma of the strategic leadership, you say that the Master of Business Administration is also supported by your employer.  When you refer to 'employer' you are referring, as I understand it, to the furniture company. 

   
   

   I note the evidence, however, is that you are not paid and have not been paid for services provided to that business and its owner/manager, Mr Vincent Chou.

1. You also made the point that you have been awarded a 15 per cent scholarship from your current provider; I accept that as true.  In relation to the employment history and value for your future career, you claimed as follows: that from 2003 to 2006 had worked at the countryside burger takeaway shop.  This is a family business successfully operated for four years by your mother.  You state that because of her age your mother wants you to take over and manage the business and that she hopes that you can receive more practical training in hospitality management.

1. You claim that although you study business administration at the university in Taiwan you believe creative marketing management can be combined with hospitality management to create brand chain stores.  You claim that you plan to study business and hospitality abroad and that Australia was known for its prominent education, so you decided to study in Australia.  You then claimed that in 2013, because a landlord had asked for a 30 per cent increase in rent, the burden was too high, and your family decided to suspend trading in that business.

1. At that time, you were about to complete a hospitality course and although the plan was changed the professional knowledge and skills in hospitality management and business management would still be practical in creative marketing management.  I sense there is a conflict in those submissions because the submissions were to the effect that your mother wanted you to take over and manage the business, the business being the countryside burger takeaway shop.  Of course, that has not traded at all since 2013.  That cannot be so.

1. You also claim that when you were learning the course, diploma of international business, you established a brand creative marketing strategy.  And referring to the company, Dream Sound.  You claim that you fully use practical experience, registered trademarks, to establish a good brand image and you registered the company in Hong Kong.  The reason you did so is because of your clear goal for this business.  You claim the economic development of Hong Kong and Southern China was rapid and most of the suppliers who were brand marketing were in Southern China.  That is also the reason that the CEO of the furniture company, Huaxin Hardware Furniture Company, liked your marketing strategy, the planning, your continuous work and cooperation and further potential organisational management.

1. You provided information as to the registration of the trademark for Dream Sound, its certificate of incorporation and the annual returns for 2019/2020.  You claim that you were offered a job promotion as international business expert marketing project manager at the furniture company and you would be managing more than 20 employees.  You provided information in relation to your medical conditions.  I have considered all of those and I will have more to say about that in a minute.

1. You claim that you have close connections to Taiwan; I accept that.  You also claim that your employer, the furniture company, had provided financial support and extended unpaid leave allowing you to complete the advanced study offering you a promotion in position when you return to Taiwan.  I note however in your evidence, and I will come back to that, is that you told me that the company had not provided any financial assistance in relation to your fees.  You provided a lot of documents in relation to your qualifications in Australia.  They have already been covered by me.

1. You provided translated documents in relation to the furniture company.  One in particular is a certificate of employment which is a document certifying that you have been working in the furniture company as a marketing project manager.  The job content included marketing strategy and planning, international brand marketing management and due to the internal development needs of the organisation a diverse workplace would be implemented in the future.  You confirmed that at this stage you are on leave without pay.  It indicated that the serious impact of COVID-19 that agreements have been made that you would continue to study your MBA course in Australia.

1. It was acknowledged that you had qualified for a school scholarship.  You indicated that you must report your learning progress to senior management every two weeks.  I note from the document it does not address the anticipated benefit to you or to the company through completion of the current course over and above anything that you have already studied to date.  The document indicates that after completing studies you will return to the company and be promoted to a foreign business department and assist staff with training and management of human resource departments. 

1. When I saw that particular document, the question arose for me as to why it would be the case that a CEO of a trading company overseas would have accepted the offer of employing you to provide services when you are so far away and really apart from your experience and employment, you have had no real experience in the furniture business.  You provided a translated copy of employees leave without pay applications.  There was a letter of offer in relation to your scholarship for medical certificates and I have taken consideration of all of those.  The annual returns.  You did provide a copy of the trademark registration document with the Australian government.  It was entered on a register on 10 April 2014, the trademark is a silhouette of a Kangaroo.  I note from the document that the goods and services to be provided by the entity were audio speakers, electric leads, monitor speakers, personal stereo speaker apparatus, speaker switches, speakers, speakers for compact disc players, speakers for computers.  Quite clearly at that point in time you had nominated the business of bringing sound to the constrained to music speakers.  That has not remained the case.

1. We spoke on 1 February 2021 and these are the key things that you told me, you are a 38-year-old man who broke up in a relationship in 2010, you had had no other relationships.  You were born in Taiwan, your parents are alive, as are your grandparents.  Your father was a carpenter and he was self‑employed.  You confirmed the business of your mother.  You confirmed that you had studied business administration in Taiwan and had finished in June 2005.  I asked why you had business administration and you said to me that it would be useful to learn management and catering and all these things lead to management and leadership skills.  I asked you whether you had any specific employment in mind for the future.  Your response to me was that you would be able to provide knowledge for the future.  And I assessed by your response that there was no indication of you having insight from those previous studies. 

1. You confirmed your previous employment in Taiwan.  You confirmed that after 2005 you had worked in the family hamburger business and that between September 2009 and November 2011 you had worked as a sales assistant.  You then explained to me about a company that you had created called Ju Kang Ltd.  You were the sole director.  It was involved in the food wholesale business.  The produce concerned was beans and bean curd and you sold that business in about 2011 for which you got a good price.  You confirmed to me that you had worked in the hotel business both before and after your family business.  You told me about Dream Sound, and this was a company that you had set up in Hong Kong.  In 2014, you said that the company had been involved in the production of Bluetooth sound speakers under its own brand name.  Its business according to you was in the selling of modern technology.  You said that it had previously had a business premises, but it now operates online to distributors.

1. I was curious as to how it had been that you had started a Bluetooth speaker business.  You explained that you had become very interested in marketing.  In 2010, the family business had increased for the hamburger business.  I asked whether you had any employees in the speaker business.  You replied that, you had worked with distributors and asked them to sell the product for you.  When I queried as to who were the distributors you said these were shops who would sell electronic products.  I queried the names of the distributor shops and you responded that these were Bluetooth speaker businesses that you sold to.  I found that there was a degree of delay in you responding to these particular questions.  You then told me that the particular shopping area was the Yokan Markets. 

1. I queried you in relation to whether there were any business records for Dream Sound, you said to me that these were left behind in Taiwan.  You said that these records would be in a storeroom.  You said to me that in relation to employees there was yourself and one other employee.  You acknowledged that you still owned the business.  When I said to you, who manages the business, you said a Chinese counterpart, a professional manager by the name of Vincent Chow.  I note that that is the same name for the person nominated as the chief administration officer of the furniture company.

1. I questioned you in relation to whether Dream Sound produces anything as of now and you responded to me that it could be many products.  You told me that currently the company is not selling products but negotiating with manufacturers in China, and that the company is marketing its management strategy.  I probed you further as to what are the products under consideration at the moment, to which you responded that, the company was planning to produce earphones.  But it is still formalising that business concept.  When I raised with you that there are lots of manufacturers currently of earphone products, you told me that you are still at a stage of assessing the potential for the product.  I asked who are the potential manufacturers based in China.  And you responded to me that there are many.  I note that I had assessed that your responses in relation to this line of questioning were quite delayed.  My assessment of you was that these answers were not in any sense compelling.

1. You gave to me some names of some potential manufacturers eventually; those names were Xiao Mi and then Long Sheng and that was a lot more.  You confirmed to me that no earphones had been produced up to this stage.  I queried with you as to who will actually produce the earphones.  And you responded that there would be many business partners.  You said that your company will get commissioned from the marketing of these products and that you would sell the business management strategy.  On your own admission this strategy is only at a very early informative stage.

1. I asked you as to how will the business compete with other already established manufacturers and distributors, to which you responded that you will ensure the quality of the product is good.  You sought to clarify with me that the company would not only be involved in the manufacture of earphones but also in other products.  I asked you who communicates with the proposed Chinese manufacturers to which you responded, yourself.  I queried with you as to whether you did so by email, and you responded that it was by telephone.  When I asked you why not by email you responded that you have not to date signed any contacts, and I did not find that particular response to be credible because this would have been a significant investment opportunity for the business.  You sought to explain that by saying it is faster and more effective to use a telephone.  You did accept, however, that you did have email contact with manufacturers.  I asked whether you could produce those records to which you responded that you could.  I have looked through the documents as provided, and I have not identified any particular documents that confirm this business arrangement. 

1. You confirmed that you had first come to Australia on 2004 on your own, you did not know anybody.  You were on a Working Holiday visa for 12 months.  You confirmed the number of visas that you had.  I then raised with you that this was the sixth Student visa that you had sought in Australia.  My question was, why would you still be seeking to study when you have been here for so many years.  You responded to me that you need to complete the current course of study, it is highly related to your future work plans.  I noted at that point that it was still not immediately clear as to why you actually needed a master’s degree for your future plans.  I asked it why would it be highly related to your future work?  To which you responded that, the study targets and focuses on leadership and management. 

1. You told me that the courses you studied between 2011 and 2014 were directed towards the work you were planning for the family business, the hamburger business.  Your mum was getting older and you wanted to develop franchises.  But I note, however, the business ceased trading in 2013.  You told me that the hamburger business had four employees.  You had said to me your plans for the hamburger business in future were to franchise outlets and have an international presence.  But I need to put that into context in the sense that it was your mother’s business, it had four employees, including help from the family members, it could not afford the increased rent increase, which resulted in it closing down.  You had been employed for three years yourself up to 2006.  There was no indication that up to the point of closing down there was any significant footprint for the business either in Taiwan or any other area.  There was certainly no indication of any international footprint.  I then asked you how your proposal for the hamburger business would have international relevance.  You told me that it would become a chartered business and you would sell the franchising concept.

1. When I probed you further on that you said that your hamburger would be different, that it would be different materials, and different sauces, and you would also sell Taiwanese snack foods.  I found those explanations to be quite implausible, especially taking into consideration the extensive presence of fast food franchises worldwide and particularly in the hamburger area. 

1. I asked why you studied the Diploma of Strategic Leadership which you finished in May 2020.  You explained that it would he highly related to your future course, but you did not explain why.  I asked why you are studying the Master of Business to finish in May 2022.  You again said to me, it would be highly related to your previous course.  You had obtained a scholarship from the school and you can obtain exemptions.  When I asked you what are your plans for when you finish study in May of 2022, you told me that you will go back to work in the furniture factory operated by Mr Vincent Chou.  You told me that you first had communications with Chou back in about 2014.  It was whilst you were in Taiwan that you started to exchange communications with him.  You told me that the furniture company has a long-term contract with the company Ikea.  You said to me the services that you offered included advice on outdoor furniture and also consultation and advice on international sales. 

1. That was he first hearing date.  The matter was adjourned to 19 February.  On 1 February, on my instruction, the tribunal sent a letter to you seeking further information.  The information sought included any documents or information evidencing both the existence and subsequent sale of your entity Ju Kang Ltd.  Secondly, copies of documents including but not limited to communications, contracts, invoices, account records, letters, emails, which evidenced business conducted by Dream Sound training, with any actual proposed customers or clients for the period January 2020 to the present.  Thirdly, copies of any business plans for Dream Sound Trading Limited.  (4) Copies of any market research conducted with respect to the future viability of the business activities of both Dream Sound Trading and the proposed international hamburger franchise business.  Copies of any contracts or agreements between Dream Sound Trading Limited and distributors and retailers of Dream Sound products.  (6) Details of the current Chinese manager of Dream Sound Trading.  (7) Copies of agreements of communications by you with the proposed Chinese manufacturers as identified by you during your evidence to the tribunal.  (8) Documents evidencing all payments between the identified Chinese furniture company and yourself for services provided by you to date, whether in the form of wages or otherwise.  (9) Documents evidencing communications between yourself and management of the Chinese furniture company, including but not limited to communications relating to consultation services and advice provided by you.  In particular please provide documents evidenced market strategy planning and international brand marketing strategies for the furniture business.  (10) Copes of any communication between you and the management of the furniture business, in the form of required fortnightly reports as to your progress in studies in Australia.  (11) Dream Sound has registered a trademark in Australia as from 2014, please advise this was so and whether the business is trading within Australia.

1. You did provide a significant number of documents.  I have seen quite a few documents dating back to around 2010, 2011, which have been translated, they do refer to Ju Kang Enterprise Company.  There is reference to you.  I am satisfied that you did own Ju Kang Enterprise Company, the business of that company was in the wholesale of foods and similar products.  I am satisfied as to that.

1. The next documents of interest to me related to translated emails, I think or SMS messages dating back to July 2020 and they related to an entity called Princess Logistics it was not clear to me what that related to.  I raised that with you today before this decision and you explained that to me.  It is a side enterprise of Dream Sound and it relates to the potential importation of toys.  Like a lot of other projects that has not got off the ground at the moment.

1. You provided to me a number of statements, I am not going to go into those statements in any particular detail other than to say you sought to explain the reasoning for registering the trademark of Dream Sound in Australia, I have taken those reasons into consideration.  Of particular significance is a series of emails, quite a few emails between yourself, these translated emails I think and Mr Vincent Chou of the furniture company.  What is clear from many of those emails is that you are providing what I would call technical information to Mr Chou.  Now, Mr Chou of course is the chief administration officer of this furniture business, he is not an accountant, he is not an employee, he is the boss, so to speak.  For example, you provide information to him about material, including materials such as textilene, its characteristics, including its temperature resistance, UV resistance, rainwater ageing resistance.  You provided further information about aluminium alloys, its qualities being relatively soft and easy.  You provided information to Mr Vincent about the styles of furniture and creating the best conditions for outdoor furniture, and a lot of other similar type of information was provided. 

1. Now, when I read that it caused me to ask myself how it would be that you would have background in those particular areas, so as to provide the boss of this furniture company with that information, that was raised with you today, and I will talk about that very soon.  You provided a lot of information of about the concept behind Dream Sound products.  In one statement you said that the development of Dream Sound products requires a lot of time for the management of any brand.  It must be a popular product; product practicability and the most important thing is the quality of the product.  You gave examples about the development and invitation of a marketing plan.  Example 1 was your concept about earphones.  You observed that earphones have a high imitation rate, high investment costs and a short product lifecycle, which is very competitive.  When you told me about that concept that had been my observation also.  The next example you gave was the impact of the COVID pandemic, the hospitality or tourism industry having a great impact that many restaurants and hotels have closed down.  You indicate it is impossible for us to invest in these businesses now.

1. You say it is not feasible in the short-term plan and that is why learning multiple skills can increase competitiveness.  You claim that the brand you want to develop in the future must be a product with high practicability.  That you do not need to develop many products with Dream Sound that must have a small variety of products with energy saving and carbon reduction, environmental conditions, fuel saving, and high practicability.  You then refer to Harley electric motorcycles (indistinct) electric motorcycles and electric scooters as being the products that you plan to further development.  You will cooperate with online shoppers to display these in malls.  You say there is no electric motorcycle company that uses the kangaroo trademark and you believe the Dream Sound kangaroo trademark can be fully utilised. 

1. We then spoke again on 19 February and these are the key things we spoke about, you had claimed at the beginning of the hearing that you are not feeling your best, you had been taking medications, your longstanding depression had worsened, that you feel uncomfortable.  I had requested that you provide medical certificates leading into the hearing because I wanted to make sure that you were able to participate in the hearing process.  You did provide some very brief letters from two separate doctors, but there was nothing in those two letters to suggest that you were in anyway unfit to participate in something such as a court hearing or a tribunal hearing.  In those circumstances I decided that it was appropriate to continue with the hearing. 

1. I put it to you as to whether what you were really dealing or achieving through studying further was to maintain your residency here in Australia and it is fair to say that you were absolutely resolute that that was not the case.  That you had only come to Australia to study.  You said to me you understand that these visas were only temporary.  You claim that Australian teaching is unique, that it pays high attention to practical use, a diverse study, and respect for students.  I sought examples from you and you said to me that your provider teaches using case studies and role plays but there was nothing further of any material significance that you provided.  You say that in China or Taiwan the education system the teachers are more serious.  When I sought to understand from you as to what you were basing that experience on you said the size of classes was very large at home and you had not had much interaction.  I asked you when you had last studied in the Chinese system and you said it was 2005.  When I suggested that things may have changed in the last 15 or 16 years, I sensed that you were uncomfortable in responding to those questions.  You said that some of the school systems in your home country are bureaucratic.  You said to me that in general the Chinese system emphasises theory and education.  I asked how you know that, and you said because of the courses that you had studied before and that other students have the same view as you.  That was a general opinion amongst your colleagues at college.  I did not find any of your responses in relation to the comparison of the Chinese or Taiwanese systems and Australia to be particularly persuasive.

1. In then questioning you at some length as to how it was that you say the current master studies connect into your future plans.  It is fair to say that at those various stages I raised that with you that I did not gain any impression at any stage that you actually had any particular insight into that.  You told me that you will have an increased capacity for future work and when I asked you how you said you would be able to learn in the skill of communication and customer service skills.  I sought examples from you and you said to me that you would need to meet the requirements of the client, you would be able to better understand the nature of the product, the way to deal with matters and better interaction with the clients. 

1. I asked you what you actually learnt from studying the graduate diploma of strategic leadership, in particular in relation to your future.  You said to me you would learn how to run a business of a particular company.  As for many of your previous responses there was no substance.  I then asked what it is you hope to gain from the master’s studies, you responded that you can have a better challenge and develop yourself.  You can also obtain credit from the other courses that you have studied.  I then had to pursue that as to what is the benefit of actually doing the course.  To which you responded that you can become a better leader and a manager and more easily find work. 

1. At the closing of that hearing date I asked for submissions from you as to why I should accept that you are a genuine temporary entrant as a student.  You indicated that your family encourages you a lot, your family are in Taiwan forever.  You are being very serious about your study, you have a good attendance rate, you have a scholarship.  You have studied hard.  You only need two more semesters to finish.  You say your grandparents are getting quite old.  I then came back to the question as to why you need the masters to achieve your business goals.  To which you responded that future clients will affirm you more and it will improve your reputation.  What I was looking for was actually some indication of insight from you as to what are the aspects or the skills or the knowledge or the experience from studying the masters, and how that will actually apply in relation to when you return back to Taiwan.  It is fair to say that I have exhausted my probing in that particular area and still did not gain from you that you had actual insight into that.

1. You then provided further documents, some appear to be between yourself and fellow study colleagues, I accept all that.  You obviously have been studying.  You provided to me some fairly recent emails which appear to be between yourself and an entity called Yong Keng Hanguan Hardware Factory.  Those communications relate to the possible purchasing of new electric motorbikes.  I note the timing of those emails, these emails seem to date 19 February 2021, March 2021.  When I saw that it raised my interest in terms of why you would be approaching the hardware company at the point in time that you did, being when you were fully involved with the tribunal process.  You provided a further document; I am not entirely sure the relevance of the document, but it relates to the Chang Wah Woodworking Professional Trade Union.  I accept all the things that you have put in that document in relation to your father and your family involvement in that union. 

1. There was a further document in relation to Dream Sound setting out the plan in relation to the two-wheel electric vehicle project business plan.  I have taken that into consideration.  A further document being evidence of a contract between Save and Safe Company Limited and Ju Kang enterprise company.  I have no reason to doubt the liberty or accuracy of that document. 

1. We spoke again on 15 March 2021.  On that hearing date I asked you as to when you left Australia after your initial studies whether you did any research in Taiwan about studying an MBA.  You told me that you had made enquiries in relation to the course contents.  I then sought detail from you as to which education providers you had actually enquired with.  You responded you had only enquired with by initial enquiries.  I queried as to whether that had been done by email.  You said to me that it had been done by phone calls, some providers were close to your home, went to one school to ask questions.  It seems to me you accepted that you could study the MBA course in your home country Taiwan, but you said to me that the course in Taiwan would lean more towards administration that the practicalities.  You said to me that you had made enquiries in relation to that.

1. I asked you why do you need the MBA now.  You said it would be a better challenge for you and you could learn more.  I asked whether the MBA has any value over and above what you have already studied here in Australia.  You responded that it is the highest degree that you could study.  You told me that you appreciate you cannot study forever.  I asked how it would be possible to progress the hamburger franchise concept at the same time as your other business plans.  You responded that you would need to choose one plan which has higher viability or visibility, that COVID has impacted a lot.  You confirmed to me that the furniture company has not been paying for your fees or your study fees.  You had never approached the company to pay for your fees.

1. I asked what products or services Dream Sound intends to market.  You responded it will model itself on targeting the potential market and make it products, there are all sorts of different people from different lines, and it would depend on suppliers.  I asked what products or services you had in mind for Dream Sound as of today.  You said you were working on foldable pushbike and motorbikes. 

1. Then we arrived at today.  There was some very brief evidence from you today.  I asked in relation to Princess Logistics, you explained that to me in relation to the importation of toys.  I spoke to you about how it was you were in a position to provide technical advice to the boss of the furniture company, bearing in mind you had been a student for most of the last 12 years.  It is fair to say that the responses you gave I did not find to be particularly credible.  That is the totality of all of the evidence.

1. When I look at the situation the following things become clear, that is that you have successfully completed studies, a number of courses here in Australia and to that you should be given credit.  It is clear to me that you have been able to retain close family relationships in your home country.  I accept that you have no significant assets or moneys held in Australia that may represent as an incentive for you not to depart Australia.  I accept that you have no significant relationships that may be incentives for you not to depart Australia.  I do accept your study history in Taiwan.  I do accept your employment in Taiwan and that you did assist your parents in the operation of their hamburger business.  On the other side of the ledger, I look at your situation, you arrived into Australia for the first time in August 2004, you stayed for one month.  You returned on a Working visa on 13 December 2006.  You returned home.  There was a first Student visa between June 2008 and September 2010.  There was a second Student visa between October 2011 and July 2012.  A third Student visa between July 2012 and September 2013.  A fourth Student visa between October 2013 and March 2015.  The final Student visa was between March 2015 and August 2016.  Thereupon you returned to Australia on 27 June on a Visitor's visa, in that period of time you sought your sixth Student visa.

1. Now, without hearing from you, looking at all of that history you have had a significant period of time living in Australia and studying in Australia by which to sure up or help you to secure your future in Taiwan.  That in itself has meant that I have had to look very closely at your motivations for now wanting to study further in Australia.  It is fair to say that the main focus for me has been on what is the intrinsic value of you studying a master’s degree in addition to all of those other courses that you have successfully completed.  That is what I have attempted to understand from you through many different questionings and it is fair to say that I still am somewhat unsure as to how and why this particular study will be of benefit to you in your future.  I found many of your answers upon this issue to be lacking in any substance or in any detail that would demonstrate to me that, you have actually applied your thinking to the value. 

1. You are a person who has qualifications in business in your home country, Certificate III in Diploma of Hospitality, Diploma of International Business, Diploma of Management, and Diploma of Strategic Leadership, and you now want to go on a do a Master of Business Administration.  I looked very closely at the evidence that you provided in relation to your involvements with the furniture company and you did provide documents to support those claims.  I find it very difficult to accept that you have somehow made yourself attractive to the boss of a significant furniture company overseas when you have spent most of the last 12 years studying here in Australia.  I find it somewhat implausible how it has been that you have come together with this particular person, Mr Vincent Chou.  I found the email communications between you and Mr Chou to be very difficult to accept as to how it would be that you as a student would be providing guidance to him about the sort of materials to be used in his business.

1. My concerns are such that I do not accept that aspect of your claims in relation to your involvements with Mr Chou and his business.  I just do not accept them as being plausible.  I look at the business of Dream Sound and it is fair to say that has been in existence since 2014 and there is none or very little evidence that it has produced anything or has any firm business arrangement in place.  You were given opportunity to actually demonstrate that through producing documents and I am not satisfied upon the documents that it really has any firm business plan in place.  These are concepts in my view that are in your own mind. 

1. I have to look at Ministerial Direction number 69.  Your circumstances in Taiwan.  I listened very closely to your evidence as to whether a course of study or similar course is available and I gained from your evidence that there is or could be similar course of study available.  I gave you opportunity to comment upon why you could not do the course in your home country, I did not find your evidence in relation to that aspect to be particularly convincing.  I consider that there are not reasonable reasons for you to not undertake this study in your home country.  I have considered the extent of your personal ties to Taiwan including your family, your community, and you employment.  I note that your mother’s business no longer trades and has not done so for the past seven years.  I accept that your family operate a significant incentive for you to return but I am not satisfied that your community and employment are significant incentives for you to return.  I have considered your current economic circumstances.  I accept that your economic circumstances here in Australia do not present as significant incentives for you not to return to your home country.  There are no military services commitments that would present as significant incentive for you not to return.  You have not advanced any political or civil unrest issues in your home country and I have not identified any myself. 

1. You say you have no ties to Australia.  I find that very difficult to accept.  You have been living here for the most part over the last 12 years or so.  In my view there is evidence that the Student visa program has and is being used by you to get around the intentions of the migration program and there is evidence that the Student visa program is being used to maintain ongoing residence in Australia.  I will say more about that in a minute.  You are not in a relationship.  I consider your knowledge of living in Australia to be generally at a level that I would expect.  In relation to your knowledge of your intended course of study and your education provider, I did not find your evidence in relation to your intended course of study being a master’s degree to have any particular substance to it.  Many of your answers were simply along the lines of concepts without any real meat to those answers. 

1. There was no indication that you had one any particular research into your proposed course of study and its benefits to you in your future.  I have no concerns about your living arrangements.  In relation to the value of the course to your future, I accept the current course is generally consist with your current level of education.  I am not satisfied that the course you are studying, the masters, will assist you to obtain employment or improve employment prospects based upon all of the evidence you have given about your business interests for when you return.  I am not satisfied the course is relevant to your past or proposed future employment.  I am not satisfied that the money you would expect to receive compared to here in Australia offers as a significant incentive for you to depart Australia.  There is nothing about your immigration history that causes any concern.  You are not a minor and there were no other relevant matters.

1. In conclusion, I am not satisfied that you are a genuine applicant for entry and stay as a student as required by clause 500.212.  Given those findings the appropriate course for me is to affirm the decision under review.  You have not claimed to meet criteria for a Subclass 590 Student Guardian visa.  The decision is that I affirm the decision under review not to grant a Subclass 500 Student visa and that is the decision. 

1. Mr Chou, the decision I have made is that I am not satisfied that you are a genuine temporary entrant as a student.  I carefully considered the circumstances in your home country of Taiwan and your potential circumstances here in Australia I accepted that you do have significant incentives to return to your family at some stage.  In my view there is evidence that the Student visa program is being used to get around the intentions of the migration program and in my view, there is evidence that the Student visa program is being used by you to maintain ongoing residence.  When I weigh up the circumstances for you in Taiwan against the potential circumstances in Australia, my view is the incentive is for you at the moment to remain here in Australia. 

1. In my view you have settled in very well now into life in Australia.  I was not persuaded by your evidence concerning the furniture company.  I was not persuaded by your evidence about the future business of Dream Sound.  In relation to Dream Sound it appears to me that you have had in your own mind many colourful concepts for the future business and there is no or very little evidence that Dream Sound has actually produced anything to date.  You have not persuaded me as to the benefit of studying the master’s degree in particular in relation to the studies you have already done.  I was unable to find that there is value of this course for your future and there was no issue about your immigration history.  When I weighed all of those things up individually and collectively, I was not persuaded that is why I did not accept your arguments. 

   Before we finish is there anything you want to say now?

   INTERPRETER:  No.

   MEMBER:  You need to know that you can challenge or appeal my decision to a Federal Court.  Do you understand that?

   INTERPRETER:  Yes, I understand that.  But I will carefully consider whether I will make that move.

   MEMBER:  All right, well, it is up to you.

   INTERPRETER:  I have not made my mind yet.  My question is, if I I’m going to appeal your decision or challenge your decision, how long I have, is there a time limit?

   MEMBER:  There is a time limit, you need to read the information that the tribunal is going to send to you.

   INTERPRETER:  Thank you.

   MEMBER:  It can be very complex to appeal these things to a court, so my advice would be that if you can afford it, you get yourself a lawyer or a migration agent to help you.

   INTERPRETER:  Okay.

   MEMBER:  You can appeal on your own if that is what you wish to do.

   INTERPRETER:  Yes, I understand.

   MEMBER:  Mr Chou, you can get a copy of the audio recording from your hearing and this decision and a transcript from the tribunal. 

   INTERPRETER:  Yes, I understand.

   MEMBER:  I wish you well, Mr Chou.

   INTERPRETER:  And I thank you.

   MEMBER:  Thank you, bye, bye.

   INTERPRETER:  Bye.

   END OF ORAL DECISION  [12.31 pm]

   Michael Judd
   Member