Gao (Migration)

[2023] AATA 299

Gao (Migration) [2023] AATA 299 (16 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xinxiong Gao

CASE NUMBER:  2201344

HOME AFFAIRS REFERENCE(S):          BCC2021/1086551

MEMBER:Peter Booth

DATE:16 February 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 16 February 2023 at 1:41pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no response to department’s or tribunal’s invitations to provide information – study history – change of subject area – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

CASE
Hasran v MIAC [2010] FCAFC 40

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 17 January 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 May 2021. 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 (Cth) (the Regulations) because she was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. On 23 November 2022 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide information about whether he is enrolled in a registered course of study and whether he is a genuine applicant for entry and stay as a student, in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing within the prescribed period, by 7 December 2022, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s 359C applies and pursuant to s 360(3) the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal sent the applicant an invitation to provide the information again, pursuant to s 359(2) of the Act, and also put forward adverse information before the Tribunal and invited him to comment on it, pursuant to s 359A of the Act. The prescribed period for response was by 13 February 2023. The applicant did not respond to these invitations. The Tribunal has decided to proceed to a decision without taking further steps to obtain information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 genuinely intends to stay in Australia as a student as required by cl 550.212.

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

8. 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?

9. 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.

10. 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.

11. The applicant did not provide any evidence to the Tribunal.

12. The applicant provided the following documents to the Department in support of his initial visa application:

    a)    confirmation of health insurance policy dated 14 May 2021,

    b)    copy of passport,

    c)    copies of 2 certificates of enrolment namely in respect of a Certificate IV in Marketing and Communication between 19 April 2021 and 17 April 2022 and in respect of a Diploma of Marketing and Communication scheduled to be conducted between 16 May 2022 and 12 January 2023.

13. The Department wrote to the applicant twice, on 3 August 2021 and 26 August 2021, inviting him to provide further information. Among other things he was invited to provide a statement which explained why he was a genuine temporary entrant. The applicant did not respond to either invitation.

14. The Tribunal turns to the delegate’s decision to glean any further information relevant to the issues at hand. The delegate’s decision records that the application for the student visa in question was made on 14 May 2021. It is apparent that the delegate had extremely limited material to consider. Relevantly the delegate concluded as follows:

    I note that the applicant is not married and has no dependent children. I also note that the applicant has not provided any evidence that they own any assets or have any business ties to their home country. I therefore have concerns as to the applicant’s desire now to undertake further studies in Australia. I am also not satisfied the applicant has been able to demonstrate personal or economic ties that would serve as a significant incentive to return to their home country.

    I have given regard to the applicant’s circumstances in Australia. The applicant has not provided any evidence of strong personal ties to Australia that would serve as an incentive for them to remain at the completion of their proposed study. I note the applicant has not provided a genuine temporary entrant (GTE) statement. Information in the application for a student visa requires the applicant to provide a statement and include any supporting information in relation to the Genuine Temporary Entrant (GTE) criterion. In response to the specific question in the application form, the applicant stated, “Detailed Genuine Temporary Entrant Statement is attached for your consideration”.

    On 26 August 2021, the applicant was requested to provide a GTE statement and was given 90 days to provide the statement. To date, a search of Departmental records indicates that the applicant has not submitted any further documentation or information addressing the GTE criterion.

    In the absence of a GTE statement, the applicant has not demonstrated they have considered alternative study destinations, education providers or courses of study available to them. It is reasonable to expect the applicant to have detailed insight into their circumstances in Australia and conditions that will apply to their visa. In the absence of a GTE statement, I find the applicant has not demonstrated knowledge of their proposed study or education provider, circumstances in Australia or visa conditions that would be expected of a genuine student. I therefore do not consider the applicant has shown a realistic level of knowledge an applicant would be expected to know regarding their circumstances in Australia.

    I have given regard to the value of the course to the applicant’s future. In the absence of a GTE statement, I have made my assessment based on documentation and information available to me at the time of my decision. The applicant has failed to outline their reasons for undertaking their intended course of study in Australia or their future goals and career plans. The applicant has failed to give reasons to satisfy me that their proposed study in Australia will assist them to obtain employment or improve their employment prospects in their home country. The applicant has not provided any information regarding the remuneration they would expect to receive in their home country after completing the proposed course or explained why they intend to pursue an overseas qualification rather than study a similar course in their home country. Therefore, I am not satisfied that the applicant has demonstrated the value of the proposed course to their future.

    I have given regard to the applicant’s immigration history. I note that there is evidence that the applicant is currently in Australia. However, when considering this in conjunction with other aspects set out in this decision record, I am unable to give weight to any past compliance with immigration laws as a positive indication that the applicant will return to their home country at the end of their proposed stay in Australia.

15. On 27 January 2023, the Tribunal conducted a search of the applicant’s enrolment history on the Department of Education’s Provider Registration and International Student Management System (PRISMS). This search disclosed that the applicant:

    a)enrolled in and completed General English (Beginner to Advanced) which started on 3 September 2018 and finished on 17 February 2019 at Queens College, London College, Sydney;

    b)enrolled in and completed a Diploma of Business which started on 1 March 2019 and ended on 1 March 2020 at Queens College, London College, Sydney;

    c)enrolled in and completed an Advanced Diploma of Business which started on 16 March 2020 and ended on 14 March 2021 at Queens College, London College, Sydney;

    d)enrolled in and completed a Certificate IV in Marketing and Communication which started on 19 April 2022 and ended on 14 May 2021 (although there appears to be an error with these dates and the start date is likely to have been April 2021 with an end date of May 2022) at Elizabeth Institute; and

    e)enrolled in a Diploma of Marketing and Communication which started on 16 May 2022 and ends on 12 November 2023 at Elizabeth Institute, and is currently studying this course.

16. This study history shows that the applicant has changed the direction of his study from business to marketing and communication. Both of his courses in marketing and communication are at a lower level than the level of qualification that he achieved in his business studies. Crucially, the applicant has not provided the Department or the Tribunal with any substantive information about his intention to stay in Australia temporarily throughout the duration of his studies. The applicant has been requested to provide such information on four occasions, twice by the Department and twice by the Tribunal. He has failed to respond to these invitations.

17. The Tribunal has no information from the applicant regarding his ownership of assets in China, family connections in China, Chinese employment history, employment history in Australia, his circumstances in Australia generally or his future career intentions. The Tribunal has no information from the applicant regarding his intentions when he completes his current course, if indeed he is still studying the course, why he has changed the direction of this study, why he did not return to China after successfully completing earlier courses, or the relevance of his current course of study to a future career pathway. The applicant has no information regarding the applicant’s family or relatives residing in Australia. The delegate observed that the applicant was not married and had no dependent children. It appears that he has been studying in Australia since 3 September 2018. While he has successfully completed several courses he has changed the direction of his study and remains in Australia. Further, it appears he intends to reside in Australia, if permitted, until at least November 2023. Accordingly, the applicant will have been residing in Australia for approximately five years if and when he completes his current course of study. The Tribunal gives weight to these matters.

18. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).

    Conclusion on cl 500.212

19. 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.

20. 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

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

    Peter Booth
    Member

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton
    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.