Hsieh (Migration)

[2024] AATA 90

Hsieh (Migration) [2024] AATA 90 (4 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Meng-Ju Hsieh

REPRESENTATIVE:  Mrs Jessica Pan (MARN: 1576687)

CASE NUMBER:  2208798

HOME AFFAIRS REFERENCE(S):          BCC2022/561767

MEMBER:Warren Stooke AM

DATE:4 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl 500.512(a) of Schedule 2 to the Regulations.

Statement made on 04 January 2024 at 8:34am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – length of residence – previous working and tourist visas – academic progress – enrolment at lower level in different subject area – vehicle accident, surgery and treatment – business plans with business partner – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 June 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 7 March 2022. 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 the applicant has spent approximately 5 years in Australia and no employment to return to in their home country, that demonstrated the applicant is now established in Australia and has little incentive to return home. The delegate further noted that the applicant has employment ties in Australia since June 2014, which may act as a financial incentive to remain in Australia and that the applicant proposes to study a Certificate III & VI in Commercial Cookery in Australia and did not provide strong reasons to satisfy the delegate that their study plan in Australia will assist them in obtaining employment or improving their employment prospects in their home country in the future.

4. The applicant appeared before the Tribunal on 26 September 2023 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. The representative attended the Tribunal hearing.

6. The Tribunal, as background to the hearing, noted that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

7. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 1 June 2022 and that she understood the content of the decision. The applicant stated that she understood the visa was refused because she had been in Australia too long and has not engaged in study and suspected the applicant was in Australia for many reasons, including money or financial purposes.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 is a genuine applicant for entry and stay as a student.

10. The Tribunal asked the applicant: Do you understand that to be granted a Temporary Student Visa, it is a requirement that you satisfy the Minister that you are a genuine temporary entrant for entry and stay as a student? The applicant responded: “Yes, I do”.

11. The applicant provided evidence that she arrived in Australia on 30 May 2014 to 6 September 2014 on a Working Holiday Visa and on 22 April 2014 was granted a 417 Working holiday visa she was engaged in working in fruit picking for approximately 2 years.

12. The applicant was granted a Bridging Visa A on 7 March 2022 with a 8105 work limitation that was active when the applicant’s Student (Temporary) Visa ended on 15 March 2022.

13. The applicant was granted a Bridging Visa B on 16 May 2022 with no conditions that permits multiple entries.

14. The applicant provided evidence of health insurance with ahm from 20 November 2018 to 30 September 2023.

15. The applicant stated that she returned to Australia on 28 June 2016 on a 601 Tourist visa and returned to Taiwan after 2 to 3 months.

16. The applicant provided evidence that she resigned from employment to pursue studies in Australia in August 2017.

17. On 3 August 2017 the applicant was granted a TU 500 Student Visa and returned to Australia to complete an English language Certificate II course from August 2017 to February 2018 and a Certificate III in EAL (Further Study) course from March 2018 to 19 September 2018, at Angad, that was awarded on 19 September 2018.

18. The applicant stated that she completed 3 subjects from 26 November 20218 to 19 January 2020 in a Diploma of Business course.

19. The applicant provided evidence of a medical report from Melbourne Health dated 11 September 2019 following an accident with a car whilst riding a scooter that included surgery on 26 April 2019 and recovery physiotherapy from 22 August 2019.

20. The applicant enrolled in a Diploma of Business course at Alice Spring College from 2 March 2020 to 23 May 2021, that was awarded on 10 June 2021.

21. The applicant provided evidence of the grant of a Confirmation of Enrolment to undertake a Certificate III course in Commercial Cookery from 23 August 2021 to 23 August 2022, that has been completed.

22. The applicant provided evidence of the grant of a Confirmation of Enrolment to undertake a Certificate IV course in Commercial Cookery from 10 October 2022 to 30 July 2023, that has been completed.

23. The applicant provided evidence of a Confirmation of Enrolment to undertake a Diploma of Hospitality Management from 28 August 2023 to 31 March 2024, at the Victoria Institute of Technology.

24. The applicant stated that she will return to Taiwan upon completion of her course and that the Taiwan industry is competitive and that she intends to create a unique niche with Australian multicultural elements.

25. The applicant claimed to have a formal business plan and that her partner has opened up a business that will be expanded.

26. The applicant stated that doing the hospitality courses will assit with her own business and has interest in working in the food and beverage industry and that is why she decided to study in Australia.

27. The applicant stated that she lives in Ardeer, Melbourne, in a share-house and pays rent of $500 per month, plus bills.

28. The applicant stated that she works part-time with Steam Bun Tok-Hing Pty Ltd for 20 hours per week on a wage rate of $28.00 per hour, where she works to prepare ingredients.

29. The applicant stated that she has returned to Taiwan on three occasions and last time in December 2022.

30. The applicant stated that she has a car and a motor bike valued at $40,000 and cash in the bank of $30,000.

31. The applicant provided evidence that she has no family in Australia and has a father and older brother in Taiwan, where her father is retired from being a supplier of dental equipment.

32. The Tribunal asked the applicant whether she would have any difficulty in assimilating back into Taiwan and she responded: ““I have not been working in Taiwan for a long time and they will provide me with assistance”.

33. The Tribunal asked the applicant if there was any reason as to why he could not return to Taiwan and the applicant responded that she had renewed her medical; has household obligations, and was in Hong Kong last year.

34. The Tribunal asked the applicant what is her business plan in Taiwan and the applicant responded: “That she has a business partner”.

35. The Tribunal asked the applicant if it was her motivation to remain in Australia permanently and she responded: “No, because I promised my friend I will go back and open a restaurant together”.

36. The Tribunal asked the applicant, if she wanted to make any other comment and she responded: “No”.

37. The applicant provided the Tribunal with a detailed GTE Statement dated 16 June 2022.

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

38. 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?

39. 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.

40. 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.

41. The Tribunal is satisfied that the applicant has made academic progress in her former studies and that following completion of two English courses at Certificate II and III level, the applicant completed a Diploma of Business  on 23 May 2021, which was followed by the completion of courses at Certificate III and Certificate IV in Commercial Cookery and is currently undertaking a Diploma in Hospitality Management that will complete on 31 March 2024. As such, the Tribunal is satisfied that the applicant has made continuous academic progress in her studies, save for the impact of Covid and surgery and recovery related to her motor scooter accident in September 2019.

42. Whilst the Tribunal has concerns that the applicant has resided in Australia for an extended period of time, the Tribunal accepts that the applicant plans to return to Taiwan upon completing her current Diploma of Hospitality Management course of study to open a restaurant with her business partner.

43. The Tribunal accepts that there is no known evidence before the Tribunal that would suggest that the applicant has not complied with her visa obligations and satisfactory academic progress has been undertaken since the applicant arrived in Australia and completed her commenced courses of study, which the Tribunal acknowledges the applicant has demonstrated success.

44. The Tribunal is satisfied that the applicant has stated that she will return to her home country upon completion of her course and is not motivated to remain in Australia permanently given her career plans in hospitality in Taiwan.

45. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily to complete her current course of study and that a Student 500 visa should be granted for the period of completion of the current course.

46. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212(a).

47. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

48. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212(a) of Schedule 2 to the Regulations.

    Warren Stooke AM
    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.