Hon Wei Peng (Migration) - [2024] AATA 3197

Hon Wei Peng (Migration) [2024] AATA 3197 (27 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hon Wei Peng
REPRESENTATIVE:  Mr Danny Mak (MARN: 0964532)
CASE NUMBER:  2208532
HOME AFFAIRS REFERENCE(S):          BCC2020/2858007
MEMBER:T. Quinn
DATE:27 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 27 July 2024 at 1:32pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no confirmation of enrolment at time of delegate’s decision – further information provided out of time – currently enrolled but no evidence of course progress provided – no information, evidence or submissions about future career – parents, sibling and work in Australia – no information about community ties in Australia or home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(3), 363A
Migration Regulation 1994 (Cth), Schedule 2, cls 500.211, 500.212(a)
CASES
Baker v MIAC [2012] FCAFC 145
Chen v MIBP [2017] FCA 46
Cockrell v MIAC (2008) 171 FCR 345
FKP18 v MIBP [2018] FCA 1555
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Jagroop v MIBP (2014) 225 FCR 482
Kaur v MHA [2019] FCCA 1372
Kaur v MIBP [2014] FCA 915
Khan v Minister for Immigration [2019] FCCA 565
Manna v MIAC [2001] FMCA 28
MIAC v Li [2013] HCA 18
MIAC v Obele (2010) 119 ALD 358
MIBP v Singh [2014] FCAFC 1
Tshering v MHA [2019] FCCA 2667
Williams v MIBP (2014) 226 FCR 112
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 21 December 2020, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]
[1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 20 May 2022, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]
[2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 10 June 2022, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]
[3] Pursuant to sections 338(2) and 347 of the Act.
The applicant was assisted in relation to the review.
In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 3197
Decision Date: 27 July 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Hon Wei Peng, a Malaysian citizen seeking review of a decision to refuse him a Subclass 500 (Student) visa. The primary dispute concerned whether Mr. Peng met the criteria for a genuine temporary entrant and was enrolled in a course of study at the time of the delegate's decision.

The Tribunal was required to determine if Mr. Peng satisfied clause 500.211 of the Migration Regulations 1994, which mandates enrolment in a course of study at the time of the decision, and clause 500.212, which pertains to the genuine temporary entrant criterion. This involved assessing Mr. Peng's circumstances in his home country and in Australia, his immigration history, the value of his proposed course of study to his future, and any other relevant matters as guided by Direction No. 108.

The Tribunal noted that at the time of the delegate's decision, Mr. Peng did not have a confirmation of enrolment. While he later provided evidence of enrolment in a Certificate IV and Diploma in Leadership and Management, this was submitted out of time in response to a Tribunal invitation to comment. The Tribunal found that Mr. Peng had not provided sufficient information regarding his ties to his home country, his future career prospects, or his community ties in Australia. Furthermore, there was no evidence of his progress in any course of study.

Consequently, the Tribunal affirmed the decision not to grant Mr. Peng a Student (Temporary) (Class TU) visa, finding that the criteria for the visa were not met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Direction is a lawful direction of the Minister.[10] I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[11] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me. However, I recognise that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[12] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[13] [10] In accordance with section 499 of the Act. [11]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].[12]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).[13]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is a 27-year-old male Malaysian citizen who first arrived in Australia on 13 December 2016 on an electronic travel authority.[14] He was subsequently granted two student visas: one in March 2017 and one January 2020.[15][14]See the questionnaire.[15]See delegate’s decision and the questionnaire. Prior to coming to Australia, the applicant completed Secondary School in Malaysia in 2014.[16] He then worked as a mechanic from January 2015-November 2016 earning AUD8,000 equivalent per annum.[17][16]See the questionnaire.[17]See the questionnaire. At the time of decision, the applicant had not filed a confirmation of enrolment for any proposed course. The Department sent a letter to the applicant in November 2021 in relation to this and he did not respond to same.[18][18]See the delegate’s decision. The applicant initially did not respond to the s359(2) letter. The Tribunal then completed a PRISMS search which showed that the applicant was not enrolled in a course of study. On 8 March 2024, the Tribunal sent the applicant a letter inviting him to comment on the fact that he did not hold any confirmation of enrolment and therefore did not meet clause 500.211 of the Regulations. In response to this letter, the applicant filed the completed questionnaire and confirmations of enrolment for a Certificate IV and Diploma in Leadership and Management with cumulative course dates from April 2024-November 2025.[19][19]See Tribunal file.

Decision

Reasons for decision

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. Therefore, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.T. QuinnMember Attachment – Clauses 500.211 and 500.212 of Schedule 2 of the Regulations Enrolment (clause 500.211)·Clause 500.211 requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[31] [31]Clause 500.211(a) of Schedule 2 to the Regulations.·‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[32][32]Regulation 1.03 of the Regulations.·All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[33] Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[34] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.[33]Section 10 of the ESOS Act.[34]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).Genuine Temporary EntrantClause 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.Attachment – Direction No.108DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS(Section 499)I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).Dated: 21 March 2024Clare O’NeilMinister for Home Affairs and Minister for Cyber SecurityNote: 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 - PreliminaryName of DirectionThis Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.It may be cited as Direction No. 108.CommencementThis Direction commences on 23 March 2024.Revocation Direction No. 69, given under section 499 of the Act, is revoked.InterpretationAct means the Migration Act 1958.Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.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.ApplicationThis Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable). This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application. This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court. The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria. Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court. PreambleThe Australian Government operates a student visa program 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 program 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 temporarilyPart 2 – DirectionsAssessing the genuine temporary entrant criterion1. 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; andd) apparent inconsistencies in information provided by the applicant in their Student visa application or Student Guardian 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 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. iii. b. Previous travels to Australia or other countries, including: iv. 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; v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;vi. 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 vii. 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 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.

Ratio Decidendi

Legal Principle Established

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