Chou (Migration)

[2019] AATA 1984

Chou (Migration) [2019] AATA 1984 (19 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ting-Yu Chou

CASE NUMBER:  1615992

HOME AFFAIRS REFERENCE(S):           BCC2016/2658459

MEMBER:P. Maishman

DATE:19 June 2019

PLACE OF DECISION:  Perth

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

Statement made on 19 June 2019 at 1:19pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – value of course – English courses – vague business plans – fashion or beauty therapy – incentives to remain in Australia – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 September 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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

4. The applicant appeared before the Tribunal on 6 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent. The registered migration agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal had before it a copy of the Department’s file. The applicant provided the following information on her Student visa application. The applicant is a 33-year-old Taiwanese national. She is divorced and has no children. Her mother, father and brother continue to reside in Taiwan. She completed high school education in Taiwan. Between 2009 and 2012 she worked as the owner of a market stall in Taiwan and worked as an online trader from 2012. She was in Australia on a Working Holiday visa from November 2012 to August 2014. She returned to Australia on 18 May 2016 on a Tourist visa and on 11 August 2016 applied for a Student visa to study English. The applicant said she may seek future employment in Taiwan, or set up her own business, as a beauty therapist on completion of a beauty therapy course in Australia.

8. The applicant provided a statement with her visa application to demonstrate that she meets the genuine temporary entry criteria to study in Australia. In summary the applicant states she decided to take a short visit to Australia and while in Australia obtained information in relation to a beauty therapy course. She said her limited English is the main barrier to her studying beauty therapy in Australia and therefore she enrolled in an English course. She considered that learning English would be more effective in an English-speaking than in Taiwan. She considered customers preferred to be served by people with beauty therapy qualifications from countries like Australia and had compared courses in Australia in Taiwan and considered the schools in Australia much better.

9. The applicant provided a copy of the delegate’s decision record to the Tribunal with her application for review. The delegate’s decision noted that the applicant provided confirmations of enrolment in a Preliminary Spoken and Written English course and Certificates I to IV in Spoken and Written English and that completion of those courses would take approximately 30 months. The delegate was concerned that the applicant was using her courses primarily to maintain residence in Australia and that she had no significant incentive to return to Taiwan at the end of her studies.

10. The Tribunal wrote to the applicant via her registered migration agent on 13 April 2018 inviting her to provide information about her studies. The applicant provided a conditional Letter of Offer to attend a General English course Future Academy Proprietary Limited dated 19 April 2018 with a course commencement date of 23 April 2018 ending 30 November 2018.

11. The applicant gave the Tribunal a statement in response to the Tribunal’s request for student visa information and bank account statements after the hearing.

12. 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.

13. The Tribunal obtained an up-to-date report from the Provider Registration and International Student Management System (PRISMS) which indicated that the applicant did not have a current confirmation of enrolment. On 28 May 2019 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to provide comments in writing on information that it considered would be the reason, or part of the reason, for affirming the decision under review. The applicant provided a written response to the Tribunal’s request showing she enrolled in a 10 week General English course on 11 June 2019. The applicant advised the Tribunal she would undertake more courses once a student visa is granted. The Tribunal is satisfied at the time of its decision the applicant is enrolled in a course of study.

14. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student in Australia.

    GENUINE APPLICANT FOR ENTRY AND STAY AS A STUDENT (CL.500.212)

15. 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?

16. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

17. 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.

18. The applicant gave evidence about her circumstances in home country and in Australia. Prior to arriving in Australia she did a number of jobs including her night market stall, packing herbs for her grandfather, restaurant work, and beauty therapy. She last studied in high school about 13 years previously and undertook some beauty therapy training at high school in Taiwan but does not have any formal certification or qualification. When she first came to Australia in 2012 she stayed in Northbridge with her cousin and worked in restaurants. The applicant’s working visa expired she left Australia in August 2014. She returned to Australia in May 2016 on a tourist visa and applied for the student visa on 11 August 2016.  Her cousin has now returned to Taipei. Her mother, brother and extended family, all of whom she is close to, live in Taiwan. She has no family living in Australia. At the time of hearing she had a boyfriend for a little over a year but he has completed his studies and was due to return to Malaysia. The applicant visited her family between 9 October 2016 and 5 November 2016; 11 November to 25 November 2017 and 27 February 2019 to 3 April 2019. The applicant is not employed in Australia and all of her expenses are paid for by her boyfriend. On her return to Taiwan she would stay with her cousin in Taipei because there are lots of foreigners. She hopes to set up a shop.

19. The Tribunal was concerned that the applicant had not disclosed any previous experience in the beauty therapy industry in her application. The applicant explained that she did many jobs but only put her fashion sales business as that was her main role. Her initial consideration for obtaining English was to better explain what she was selling in her fashion shop.

20. The Tribunal asked the applicant to explain how her courses of study in English would benefit or assist her in obtaining employment. The applicant was vague about her future plans and had no plan in respect of commencing a business. The applicant gave evidence that English skills obtained in an English-speaking country would give her much confidence and improve her work prospects in either the fashion industry or, as she proposes, in the beauty industry. She said there were now many tourists coming to Taiwan and so there was demand for better skilled English speakers in many industries.

21. The Tribunal has considered the factors specified in Direction No. 69.

    Circumstances in home country

22. The applicant gave evidence that she lacked confidence in speaking English and was too scared to speak publicly. Being in Australia she is forced to speak English and so it is better for her to study in Australia than in Taiwan. The Tribunal accepts as a general premise that there is an inherent benefit to be gained in studying English in a country where English is the primary language.

23. The Tribunal finds that over her substantial stay in Australia the applicant has been able to manage her personal relationships in Taiwan by keeping in touch from Australia and by making periodic visits. The Tribunal does not consider the applicant’s personal ties overseas to be a distinct incentive for her to cease residence in Australia.

24. The applicant does not have employment or a business to return to in Taiwan and receives financial support from her boyfriend in Australia which covers all her living expenses. The Tribunal finds that the applicant’s economic circumstances in Taiwan, relative to those in Australia, are not an incentive for her to return to Taiwan

25. The applicant gave evidence, and the Tribunal accepts, that there are no areas of concern in relation to military service or political or civil unrest that would act as a disincentive to return to Taiwan. 

    Potential Circumstances in Australia and Immigration and Study in Australia

26. The applicant claims not to work in Australia. The applicant lives with her boyfriend who covers all of her Australian living expenses including rent, utilities and food. The Tribunal finds the applicant’s personal relationship with her boyfriend in Australia and his ability to provide financially is an incentive for her to remain in Australia.

27. The applicant’s visa history shows that she was in Australia for nearly 2 years between 2012 and 2014 on a working holiday.

28. The applicant said that initially she just wanted to study English so she could explain what she was going to sell. If she goes into fashion she will need to travel overseas and English would be an advantage. The Tribunal finds the applicant’s plans to enter into fashion or beauty therapy are ambiguous and non-specific. The applicant was unable to articulate any educational pathway or considered business plan for her return to Taiwan.

    Value of the course to the applicant’s future  

29. The applicant gave evidence that Taiwan has become a tourist attraction and English is being spoken more frequently. The applicant would be better able to explain her product if she had a better understanding of English.

30. The Tribunal accepts as a general proposition that an understanding of English might broadly be of some benefit to the applicant on her return to Taiwan. The applicant’s business plan is to undertake fashion or beauty therapy. The Tribunal notes the applicant is enrolled in neither a fashion nor a beauty therapy course. The Tribunal is not persuaded the English courses enrolled in by the applicant have any intrinsic value to the vocational pathway the applicant proposes. The Tribunal concludes it is likely the applicant is using the student visa programme to maintain ongoing residence in Australia.

31. 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).

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.

    P. Maishman
    Member