Huang (Migration)

[2018] AATA 5401

Huang (Migration) [2018] AATA 5401 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shih Yu Siang Huang

CASE NUMBER:  1708547

HOME AFFAIRS REFERENCE(S):           BCC2016/3868519

MEMBER:Stephen Conwell

DATE:7 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 07 November 2018 at 4:56pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – entered Australia for holiday – proposed to undertake courses for period of more than 4 years – value of courses to applicant's future – evidence of business investments or property ownership in home country – decision under review affirmed

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

CASES
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 Immigration and Border Protection on 31 March 2017 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 17 November 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 in Australia temporarily (GTE criterion).

4. Where used in this decision:

   a.   COE refers to Confirmation of Enrolment;

   b.   VET refers to Vocational Education and Training;

   c.   The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection);

   d.   Direction 69 or the Direction refers to Direction No.69, Assessing the genuine temporary entrant criterion for Student visa application;

   e.   GTE refers to the Genuine Temporary Entrant criterion for Student visa applications;

   f.      ‘359(2) questionnaire’ or ‘359(2) invitation’ refers to the Request for Student Visa Information questionnaire issued by the Tribunal under s.359(2) of the Act.

5. On 31 May 2018 the applicant was invited under s.359(2) of the Act to provide information about her proposed course of study and her entry to stay in Australia as a student. The invitation was sent to the applicant’s migration agent (‘representative’) at the last address provided in connection with the review and advised that, if the information was not provided in writing by 14 June 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant has not provided the information within the prescribed period and no extension has been granted. 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.

7. The Tribunal has decided to proceed to decision without taking further steps to obtain the information. Accordingly the Tribunal moves to determine the review application “on the papers”.

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

   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 intends genuinely to stay in Australia temporarily.

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

   10. 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?

10. 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.

11. 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.

12. The Tribunal has reviewed the delegate’s decision of 31 March 2017 which was provided by the applicant along with her application for merits review. This decision is not binding on the Tribunal; the Tribunal brings an independent view to the review application.

13. The delegate’s decision in summary notes that:

    ·       The applicant entered Australia on 19 October 2016 with an Electronic Travel Authority (ETA) (UD 601) for visitor purposes, which was valid to  21/05/2017. The applicant stated on her incoming passenger card (PAX) that her purpose for travel to Australia was to “holiday” for a period of three (3) months. The applicant further stated that her usual occupation in Taiwan is a “Personnel”.

    ·       The applicant is single and made no mention of  immediate family. The applicant has not studied since completing her High School education in in Taiwan. In this Student visa application she proposes to undertake Certificate IV in EAL, Certificates III & IV in Business and Diploma & Advanced Diploma of Leadership & Management courses in Australia for a total duration of more than 4 years.

    ·       The applicant submitted this Student Visa application on 17/11/2016, within a month of arriving in Australia. 

    ·       In regard to the applicant’s circumstances in her home country, she stated “Before coming to Australia on a tourist visa, I was running a restaurant in Taiwan for about five years.”

    ·       The applicant has not provided any evidence of business investments or property ownership in her name in Taiwan.

    ·       The delegate was not satisfied that –

    o  the applicant will be compelled to return to her home country on account of any economic reasons;

    o  the limited family ties in Taiwan were a significant incentive for her  to wish return to her home country.

    ·       The delegate considered the value of proposed courses to applicant’s future including remuneration and career prospects in her home country, noting that the applicant failed to offer satisfactory evidence that her study plan in Australia will assist her to obtain employment or improve her employment prospects in her home country.

    ·       The applicant stated –

    "I intend to set up my own business and to use the skills and knowledge I learn from the course to run a trading company in Taiwan to export Australian quality goods back to Taiwan which will benefit both Taiwanese consumers and Australian manufacturer sectors. I am sure if I have the chance to study both the English language course and the Diploma of Leadership and Management course, it will benefit me greatly for my future      career development.”

    ·       However, the delegate was unable to accept this claim, and was not persuaded  that a person intending to travel for a holiday would abruptly leave their work to pursue further studies abroad for a period exceeding 4 years. While accepting that plans can change, the delegate found that such a sudden change in plans indicates that the applicant’s intentions are not that of a genuine temporary entrant.

    ·       While her employment and remuneration may improve slightly due to completion of these courses, the applicant could not demonstrate to the delegate’s satisfaction, a clear and substantial improvement arising from the proposed study that will outweigh the significant time and monetary commitment these courses would require. the delegate was not satisfied that the applicant has demonstrated the value of proposed courses to her future

    ·       The delegate concluded that the s applicant would have undertaken a greater level of planning and preparation before arriving in Australia than suggested by her stated intentions.

    ·       Further, the applicant has failed to provide any detailed business plan or clearly articulate  the kind of trading company she has in mind or the type of Australian merchandise she plans to export to Taiwan.

    ·       In finding the applicant’s future plans to be ambiguous, the delegate concludes that the applicant applied for a Student visa merely for the purposes of prolonging her stay in Australia, rather than due to a genuine interest in study and a desire to progress academically.

    ·       The delegate found that the applicant’s intention to be  motivated by factors other than study.

    ·       In regard to the applicant’s immigration history , the delegate gave weight to the following facts.

    o  On 16/01/2017, applicant submitted a Bridging visa application to travel overseas on 18/01/2017. The applicant (and her representative) was contacted by the Department several times with regard to the applicant obtaining the requisite Health clearance before the travel.

    o  the applicant’s representative responded to the Department on 17/01/2017 saying –

    “The visa applicant's medical examination and X-ray examination are       still being processed and I had contacted BUPA a few times who       advised me that it can take a few more weeks or months before the        medical exam result are completed as Bupa will instruct the student for     further follow up check.”

    o  notwithstanding this response the applicant disregarded the above health fact and departed Australia on 18/01/2017 on UD601 visa and re-entered on 21/01/2017, stating her usual occupation in Taiwan as a “Clerk”.

    ·       The Delegate found the applicant’s conduct towards the Department to be s discourteous and disrespectful of Australia’s migration laws. In light of this conduct, the delegate could not be  satisfied that applicant will comply with immigration laws in future or that she will return to her home country at the end of her proposed stay in Australia.

    ·       After considering all the information available, the delegate was not satisfied that the applicant intends a temporary stay in Australia, instead finding that she is using the Student visa program as a means of maintaining ongoing residence.

14. The Tribunal has considered all the above information and has regard to the factors in Direction 69.

15. The applicant has not provided a satisfactory explanation for her desire to study in Australia, having arrived here on a Tourist visa, intending to stay for three months. Nor is the Tribunal satisfied that her proposed course of study will add value to her stated career or remuneration prospects.

16. There is no evidence pertaining to the following factors indicated by Direction 69 that would prevent her from returning to her home country and the Tribunal makes no findings against the applicant based on:

    ·       any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;

    ·       circumstances in the home country relative to Australia or any other country;  or

    ·       the applicant’s circumstances in the home country relative to others in that country.

17. On the evidence before it, the Tribunal finds that the applicant is not a genuine student. Rather, she appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and she does not genuinely intend to stay in Australia temporarily.

18. Overall, given lack of evidence of academic progress, her study history, her immigration history and the lack of value of the courses to her future, the Tribunal find that the applicant is using the Student visa program to circumvent the intention of migration programs; the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that she genuinely intends to stay in Australia temporarily.

19. On the basis of the above, and having considered any other matters it considers relevant, 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

20. 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.

21. 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

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

    Stephen Conwell
    Member