Lee (Migration)

[2022] AATA 4632

Lee (Migration) [2022] AATA 4632 (24 November 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Wai Siong Lee

REPRESENTATIVE:  Ms Lulu Qian (MARN: 1680177)

CASE NUMBER:  2117257

HOME AFFAIRS REFERENCE(S):           BCC2020/2747209

MEMBER:  Frank Russo

DATE:  24 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2022 at 4:42pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – no courses completed – gap in studies – plans to start a business – proposed medical treatment – course benefit for future career – maintaining ongoing residence in Australia – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212; Schedule 8, Condition 8202

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 2 November 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant applied for the visa on 2 December 2020. 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.

1. 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 delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

1. The applicant is a 28-year-old Malaysian national. The applicant first arrived in Australia in July 2018 as the holder of a Visitor visa. He was granted a Student visa on 13 March 2019. The Student visa application under review, which is the applicant’s second application for such a visa, was in respect of his enrolment in a Diploma of Business, which was due to commence on 1 February 2021 and end on 30 January 2022.

1. The applicant appeared before the Tribunal by telephone on 8 September 2022 to give evidence and present arguments. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

1. The applicant was assisted in relation to the review. The applicant’s representative also attended the hearing by telephone.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 temporary applicant for entry and stay as a student.

1. In addition to the application for review form, the applicant provided the Tribunal with and copy of the delegate’s reasons for decision and notice of the decision from the Department, together with a copy of his Malaysian passport and a confirmation of enrolment (CoE) for the Diploma of Business at Institute of Intellect Blending, commencing on 1 February 2021 and ending on 30 January 2022.

1. On 7 July 2022, the applicant provided a response to a s.359(2) invitation from the Tribunal, providing a completed ‘Request for Student Visa Information’ form. On 14 July 2022 the applicant provided a written submission from his agent.

1. On 24 August 2022 the applicant provided the Tribunal with a response to the hearing invitation and medical certificates regarding a hand injury.

1. On 31 August 2022 the applicant provided a confirmation of enrolment letter from Reach Community College (Reach).

1. The Tribunal has regard to these documents. The Tribunal also has a copy of the Department file, which contains a system generated copy of the applicant’s visa application, bank account details, a copy of the applicant’s Malaysian passport, a GTE statement and an overseas student healthcare policy. The Tribunal has regard to documents on that file.

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

1. 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?

1. 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.

1. 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.

Evidence at the hearing

1. The applicant confirmed at the hearing that he first arrived in Australia on 28 July 2018, holding a Visitor visa. He was subsequently granted a Student visa in March 2019, which was due to cease on 4 December 2020. The applicant gave evidence that he has previously been enrolled in courses in General English, Information Technology and Business, but he has not successfully completed any courses of study since arriving in Australia. He stated that he was enrolled in a Commercial Cookery course at the time of the hearing.

1. As to his future plans, the applicant stated that he intends to return to Malaysia after he completes his proposed courses. He stated that he intends to take over his parents’ business and to start his own restaurant. When asked about his parents’ business, he stated that his father owns an interior design and furnishing company which he established in 1989.

1. When questioned why he has enrolled in his current courses of study, the applicant stated that he loves to cook, and he found that Australia is a multicultural society similar to Malaysia. He stated that in Australia many different types of dishes are prepared and exchanged. He stated for example that at Ho Jiak restaurant in Haymarket, they prepare authentic Malaysian food but use Western methods of cooking. He stated that cook more creatively and use more garnish on dishes and he wishes to take this back to Malaysia.

1. As to how his proposed studies will assist him with his future plans, the applicant stated that the course provider he has chosen offers greater maturity and international standards, whereas the food and beverage market in Malaysia is still growing and is geared towards traditional food. He stated that the market in Malaysia is also very tight. By studying in Australia, he will gain new ideas from his courses. When he returns to Malaysia he might take over his father’s business and then he will be able to fund his restaurant.

1. When asked more specifically about how he plans to fund his proposed restaurant in Malaysia, the applicant stated that he will take over his father’s business and then sell it to get the funds. He stated that his father agrees with his idea. When asked about the income he expects to obtain in his home country by using the qualifications he will gain from his current studies, the applicant stated that he intends to open the restaurant in a university town in Malaysia, which has a population of 150,000. The average income he could earn through this restaurant is around $3,500 AUD per month. When asked what this figure was based on, he stated that he has done research into the market as he has studied in this city previously and he has relatives living there. He has done research through his relatives and a previous lecturer, as well as done Google searches.

1. The Tribunal noted the applicant had provided medical information about a lump on his right wrist, which requires removal, and questioned the applicant about the relevance of this to his claims. The applicant responded that a specialist has said he may need to have it removed as soon as possible. He stated that it causes numbness and has affected his use of his right wrist. He stated that if he does not get the Student visa, he will not be able to obtain medical treatment. The Tribunal noted that the applicant had provided the Department with details of overseas student health cover and questioned whether the procedure he requires would be covered by his insurance. The applicant stated that only some of the costs would be covered, but the fees for specialist treatment will not be covered. The Tribunal questioned whether the applicant had considered returning to Malaysia to undergo the treatment. The applicant stated that he thought not, as medical conditions are not as good in Malaysia

compared with Australia and the hospitals are overburdened due to COVID-19. If he returns to Malaysia, it would take him a long time to have the procedure.

1. The Tribunal questioned whether the medical condition is affecting the applicant’s ability to study, to which the applicant confirmed that it does not. The Tribunal noted that one of the medical certificates the applicant provided states that the condition causes him pain when he works. The applicant stated that he only worked once a week and he stopped working in 2020. He stated that he had a casual job as a kitchen hand, but mostly he is studying now.

1. The Tribunal noted the applicant had listed in his s.359(2) response that he has worked as a food delivery driver for Uber from June 2020 to July 2022, earning $30,000 a year. The applicant stated that he does not do this work, but rather he rents his Uber account to a friend. When asked why he would do this, the applicant stated that his friend did not have a job at the time because of COVID-19, so asked if he could use the applicant’s account to work from. The Tribunal raised concerns about the truthfulness of the applicant’s evidence in this regard and noted that this would have taxation implications. The applicant responded that all of the money from Uber is deposited into his account and he then transfers it to his friend. The applicant then stated that he was doing casual jobs as a food runner for Lilong Darling Square (Lilong) and Nick’s Seafood Restaurant because he needed to know more about the culture of restaurants. He stated that he quit these jobs around the end of May 2022, even though in his s.359(2) response he ‘just wrote’ that he was working with Lilong until July 2022. The Tribunal questioned whether there were any reasons for the incorrect information which the applicant provided in his s.359(2) response, to which he responded that his agent completed the forms and misunderstood.

1. The applicant confirmed that he completed a Bachelor of Business Administration in Malaysia in 2017. He stated that he worked for his father’s company, Novex, briefly after this. This involved promoting the furniture business at expos and furniture events. He stated that the business employs 10 to 15 people in the design section and 20 in the factory.

1. The Tribunal raised concern with the applicant as to the value of his proposed courses of study, given that he has a Bachelor of Business Administration from Malaysia, which is a qualification of a higher level than the Diploma of Hospitality which he proposes to gain through his current study. The applicant responded that his family does business and he also has a degree in Business. He stated that he knows how to start and manage a business, but doesn’t have the skills to operate a business. He stated that his courses will teach him how to make a restaurant survive. He stated that he will open a café in his hometown, for which he will need skills in the kitchen. He will also need to know how to manage kitchen staff. The course will teach him how to prepare and how to garnish food. He stated that the demand for Western cuisine in Malaysia is high.

1. The applicant claimed he chose his current college because it isn’t small and has branches in other states. He stated it has a good reputation, sufficient trainers and he has friends enrolled there.

1. The Tribunal used the procedure in s.359AA of the Act to put to the applicant information from his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that his PRISMS record indicates the following enrolment history:

   a.He was enrolled in a course in General English from 11 February 2019 until October 2019, but this enrolment was cancelled on 5 July 2019 for ‘Non payment of fees’;

   b.The applicant then had two enrolments in the Certificate IV in Information Technology from 4 November 2019 to 1 November 2020. The first was cancelled due to an administrative change in the applicant’s enrolment prior to commencement of the course. The second enrolment was cancelled on 18 November 2019 due to non- commencement of studies;

   c.The applicant was then enrolled in the Diploma of Business, which was the subject of the visa application under review, from 1 February 2021 to 30 January 2021 to 30 January 2022, but this enrolment was cancelled on 24 September 2021 due to unsatisfactory course progress; and

   d.The PRISMS record indicates the applicant is currently enrolled in the Certificate III in Commercial Cookery, which he commenced on 4 April 2021 and is due to end on 31 March 2023. He then has enrolments in the Certificate IV in Commercial Cookery and the Diploma of Hospitality Management, the latter of which ends on 29 March 2024.

2. The Tribunal indicated that this information is relevant because it may indicate that the applicant has not successfully completed any courses of study since commencing studies in Australia in February 2019, over three-and-a-half years ago, and despite having enrolled in three courses in different fields of between 8 to 12 months duration. The Tribunal noted the information is also relevant because it indicates the applicant’s enrolment for the course of study which was the subject of his visa application, was cancelled because of unsatisfactory course progress. The Tribunal noted this enrolment record indicates the following gaps in the applicant’s enrolment history:

   a.From 24 September 2021 to 4 April 2022, which is a period of over 6 months; and

   b.From 18 November 2019 to 1 February 2021, a period of over 14 months.

3. Further, the applicant’s enrolment in the Certificate IV in Information Technology was cancelled on 18 November 2019 because of non-commencement of studies. This would indicate that the applicant did not undertake any studies from 5 July 2019 (when his General English CoE was cancelled) until he enrolled in the Diploma of Business on 1 February 2021. This is a period of over 18 months.

1. Further concerns raised by the Tribunal include the applicant’s enrolments in a range of vocational courses in different field, including Information technology, Business and now Commercial Cookery/Hospitality Management, suggesting the applicant does not have a clear study or career pathway and is enrolling in vocational courses in different fields to maintain ongoing residency.

1. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

1. The applicant confirmed that he understood the nature of the document and wished to comment on the PRISMS enrolment record at the hearing. The applicant stated that the General English course was suggested to him by an agent, but when he started the course,

he found that he didn’t need it. He stated that the course was in basic English, and he felt that his standard of English was enough.

1. As to his enrolments in Information Technology and Business courses, the applicant stated that he holds a Bachelor of Business Administration, and he had no intention of enrolling in Information Technology or Business courses. He stated that he informed his agent to apply for practical courses which would help him when he returns to Malaysia. The applicant stated that he thinks there were communication issues at the time as he had no experience in dealing with agents and the agent was not a Mandarin speaker. The agent created an email account in the applicant’s name, and so the applicant did not receive any information from the school. The agent told the applicant everything by telephone and he received no statements directly from the college. When the COVID-19 pandemic started, the agent disappeared. He called the agent but was told the agent had returned to his country. He tried to call the college, but no-one picked up his calls.

1. The applicant stated that after this he checked his visa conditions and saw that his Student visa was about to expire, so he went to another agent and said that he wanted to enrol in a course which would help him build up his business. The applicant stated that this agent was the same and helped him to enrol in the Business course. The applicant told the agent that he wanted to change courses, but the agent disappeared and took his money.

1. The Tribunal put to the applicant that it was a condition of his Student visa that he maintain enrolment in a registered course of study, that he maintain satisfactory attendance and course progress, and questioned whether he was aware of these requirements. The applicant stated that he was aware, but it was a time of COVID-19 lockdown. He stated that he did not receive anything from his college because his agent held access to the email address. The Tribunal questioned whether there was any reason why the applicant did not commence a course of study in the second half of 2019, which was prior to the COVID-19 pandemic. The applicant stated that his CoE for the Information Technology course changed. He stated that the college told him they were looking for him and requested that he wait at home, where they would contact him. He stated that the agent did not contact him.

1. The Tribunal questioned whether there were any reasons why the applicant did not enrol in a course in 2020, given his enrolment in the Certificate IV in Information technology was cancelled in November 2019. The applicant stated this was because his agent enrolled him in the Business course. He also mentioned the effects of COVID-19. The Tribunal put to the applicant that his PRISMS record indicates that he was not enrolled in a course of study for approximately 14 months and did not undertake any study for a period of approximately 18 months. The Tribunal put to the applicant that in its experience in hearing applications for review of Student visa refusals, education providers continued to offer courses through online study during the COVID-19 pandemic and international students were still able to obtain CoEs for most vocational courses. The applicant responded that he also had financial problems at this time. His parents could not transfer money to him, and it was hard to go outside. He stated that he did not like the online study environment. He stated that you can’t study Cookery online and he wanted to study in-person.

1. The Tribunal also raised concerns with the applicant regarding his evidence of how his courses of study were chosen for him by his agents. The Tribunal put to the applicant that this might indicate that he did not engage with the process of researching and selecting his courses of study, but instead allowed his agent to make decisions, which may indicate he had no real interest in the courses of study in which he enrolled, and obtained the enrolments primarily as a means of maintaining residency in Australia. The applicant stated that the first time, he had no experience in dealing with agents and told his agent to enrol him. He stated that he believes this is normal because he does not know everything about

studying in Australia. The second time, he told the agent that he wanted to enrol in anything related to Business, but not in Business itself.

1. The Tribunal also questioned the applicant about the reasons why his enrolment in the Diploma of Business were cancelled for unsatisfactory course progress. The applicant stated that this was a package course which followed the Information Technology course, but he did not find out this information until after the agent left. When asked again about the unsatisfactory course progress, the applicant stated that he did not know he was enrolled in a Business course at the time.

1. The Tribunal put to the applicant that it had concerns with this evidence and noted that the applicant had obtained the enrolment in the Diploma of Business in December 2020 for his second Student visa application, which was lodged with the Department in December 2020. The applicant then stated that the second Student visa application was made by the second agent, whom he met online. He stated that the first time he met this agent was under

   COVID-19 conditions. He stated that he made payment to the agent through a bank transfer, but when he went to the school he found that the agent had enrolled him in some ‘wrong subjects’. The agent told the applicant that he would change the CoE for him. After the second semester he made further payments to the agent, but this agent also disappeared.
   He stated that after this he went to his school and told him he had this problem, however the school told him that they had already cancelled his CoE because he had not made a payment. He stated that he then found his Commercial Cookery course.

1. The Tribunal put to the applicant that there is no evidence that he has worked in the hospitality industry, other than as a delivery driver, and there is little to indicate that he has a genuine interest in hospitality. Given his enrolment history, he may have enrolled in his current courses in Commercial Cookery/Hospitality Management primarily to maintain ongoing residence. The applicant stated that he started working in a restaurant as a food runner, but after the COVID-19 pandemic some of the restaurant’s workers stopped working, so he was given the opportunity to work in the kitchen. He stated that he was paid as a kitchen hand, but his job title was still food runner and his payslips also said that he was a food runner.

1. The applicant confirmed that he has no family ties in Australia. He told the Tribunal that he is not in a relationship and gave evidence that he has never been in a relationship in Australia. The Tribunal noted the applicant had provided a letter from a Dr Tony Mak, dated 12 August 2022, which refers to the applicant having partner, and questioned the applicant about this. The applicant responded that this was the friend who had accompanied him to see the doctor. He stated that this was a schoolmate who had the same condition as him, and she therefore suggested the applicant seek advice from her GP.

1. As to his immigration history, the Tribunal put to the applicant that he was not enrolled in a course of study from 18 November 2019 to 1 February 2021, a period of over 14 months, and that he held a Student visa until 2 December 2020. The Tribunal put to him that this was a period of over 12 months that he appeared to be in breach of the enrolment condition of his Student visa. The applicant stated that he did not know there was a breach at the time, that he is sorry for the breach, that he is studying hard now, and his attendance is good. He stated that he wishes to continue studying in Australia, that he loves the study culture and practical classes and wishes to take back knowledge to Malaysia. The Tribunal put to the applicant that it may not be satisfied with these reasons, given it is his responsibility as a visa holder to ensure that he complies with the conditions of his visa. The applicant responded that he applied for the Student visa after his Visitor visa and he did not read the visa conditions. He stated that he also faced some hardship because of COVID-19. He stated that he is now aware of the conditions for the Student visa and will comply with them.

1. The applicant was given the opportunity to provide any other information and confirmed at the end of the hearing that there was nothing else that he wished to provide to the Tribunal.

Oral submissions from applicant’s representative

1. The applicant’s representative stated that the applicant was nervous during the hearing and his affected his answers. They submitted that from the applicant’s previous study experience, he thought that Commercial Cookery would be for him. His course in Information Technology was not for him and had been arranged by his previous agent. The applicant told his representative that he had long conversations with his agent and that he should choose Commercial Cookery so he can leave with an Australian qualification. They submitted that the applicant has completed half a year in his current study and has good attendance. They submitted that the applicant will keep this up and will complete the course. They submitted that the applicant chose his current course and education Provider (Reach), not his agent. The applicant chose the course through research and chose one which will be of value to him.

1. They submitted that the applicant is from a wealthy family and the financial hardship which he experienced during COVID-19 was only a temporary situation. His parents are supportive of him achieving a qualification. They submitted that the applicant has no plans to remain in Australia after completing his studies. He wishes to achieve business success in Malaysia and also wishes to return to Malaysia due to traditions. They submitted the applicant has no intentions to remain in Australia after he completes his course. They submitted the applicant can show his intentions as a genuine student by focusing on his studies alone and not working.

1. They submitted that the ganglion in the applicant’s right hand is causing him pain. His doctor has suggested surgery and the applicant wishes to achieve this. The applicant wishes to see other doctors and to continue the treatment, otherwise the lump may become dangerous. They submitted there has been reduced travel and flights due to COVID-19 and the available flights are expensive, so it is very difficult to purchase travel tickets at the moment. They submitted that the applicant’s enrolments in Commercial Cookery and the Diploma of Hospitality Management are the optimal approach for him given his circumstances. They asked that the Tribunal consider the applicant’s ‘compelling circumstances’, and that the Tribunal give the applicant another opportunity to complete his proposed course of study before returning to Malaysia.

Findings regarding the factors in Direction No 69

1. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account all the relevant information, the Tribunal is not satisfied that the applicant meets the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

The applicant’s circumstances in his home country

1. The Tribunal accepts that the applicant has personal ties to Malaysia which would serve as a significant incentive to return to his home country. This includes the presence of the applicant’s parents, sister and extended family in Malaysia. I accept the information in his s.359(2) response that he WhatsApp and WeChat to communicate regularly with his family in Malaysia. I also accept the applicant’s evidence that his father owns an interior design and furnishing company in Malaysia, which employs approximately 40 people. I accept that the applicant has previously worked in a marketing role for this company, which involved him promoting the company at expos and furniture events. I accept that the applicant may obtain or inherit this business from his father. I also accept that the sale of this business could be

used by the applicant to fund plans for a business of his own, such as a restaurant or cafe. I take this information into account in assessing the applicant’s circumstances as a whole.

1. As to the applicant’s economic circumstances, the applicant has given somewhat vague and inconsistent information and evidence regarding his employment in Australia. As noted above, in his s.359(2) response he indicated that he worked as an Uber food delivery driver until July 2022, as well as a casual food delivery driver with Lilong until July 2022. However, at the hearing he stated he worked at Lilong on a casual basis until May 2022 and he stopped working for Uber in 2020 and rented his Uber account out to a friend. I find that the applicant has provided inconsistent information about his history and do not consider that he has provided a complete picture of his economic circumstances. I accept however the applicant’s claims regarding his father’s ownership of an interior design and furnishing company in Malaysia, and therefore make no adverse findings regarding the applicant’s economic circumstances.

1. I have considered the applicant’s stated reasons for wishing to undertake the proposed study in Australia rather than Malaysia. I have also had regard to the information contained in the applicant’s s.359(2) response, which indicates that he has undertaken research into similar courses in Malaysia. He has provided the details of the course costs of a Diploma course and a Bachelor course at Taylor’s University. He indicates that the courses offered in Australia are more developed and of a higher standard than those in Malaysia in terms of menu design, plating and service. I accept that the applicant has provided reasonable motives for not undertaking the course of study in his home country and therefore make no adverse findings with respect to this factor.

1. There is no evidence of any military service requirements or of any civil or political issues which would act as an incentive for the applicant to remain in Australia. There is no adverse evidence before the Tribunal regarding the applicant's circumstances in Malaysia, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

The applicant’s potential circumstances in Australia

1. The applicant first arrived in Australia on 28 July 2018, holding a Visitor visa of three months duration. He applied for a Student visa online, which was granted on 13 March 2019 until

   4 December 2020, which was granted for the purpose of completing a certificate in General English and a Certificate IV in Information technology. He applied for the Student under review on 2 December 2020, which was in respect of his enrolment in a Diploma of Business from 1 February 2021 to 30 January 2022. The applicant has not completed any courses of study in Australia, despite having commenced his studies in Australia in February 2019, over three-and-a-half years ago, and despite having previously been enrolled in a course of 8 months duration, as well as two courses of approximately 12 months duration.

1. The applicant now proposes remaining in Australia until at least March 2024 to complete a package course leading to the Diploma of Hospitality Management. The applicant commenced this package course with the Certificate III in Hospitality Management in April 2024, approximately five months prior to the hearing. If the Student visa were granted, this would bring the applicant’s stay in Australia on temporary Visitor, Student and associated Bridging visas to over 5 years and 9 months, which is a reasonably lengthy period of time given the applicant’s enrolment and academic history in Australia to date.

1. I find that the applicant’s enrolment history and academic performance are not consistent with the behaviour to be expected of a genuine temporary entrant who wishes to remain in Australia only temporarily for the purpose of studying and obtaining qualifications. I have considered the applicant’s explanation for why he did not continue with the course in

General English but do not find he has provided a reasonable or sufficient explanation. The applicant’s enrolment in General English was cancelled for the non-payment of fees in July 2019 and the applicant remained unenrolled in a course of study until 4 November 2019, when he was due to commence the Certificate IV in Information Technology. The applicant did not however commence this course, as his enrolment in the Certificate IV in Information Technology was cancelled on 18 November 2019 for non-commencement of studies. The applicant therefore did not attend a course of study for a period of over 18 months and was not enrolled for a period of over 14 months from November 2019 until 1 February 2022. This is not only a significant breach of the enrolment condition of the Student visa which the applicant held at the time, but also raises significant concerns about the applicant’s claim that he wishes to remain in Australia only temporarily for the purpose of study.

1. I do not accept the applicant’s claims for why he has not completed any courses and for why he remained unenrolled for such a significant period of time. I have considered the applicant’s claim that he found the General English course he was enrolled in to be too basic, but consider the applicant could have enrolled in a more advanced English course rather than remain unenrolled for a period of almost four months prior to the commencement of the Certificate IV in Information Technology. I have also considered the applicant’s claim that his agent incorrectly enrolled him in courses that he was not interested in and there were communication problems between him and his agent. I find that the applicant’s enrolment in the Certificate IV in Information Technology was due to commence on

   4 November 2019, approximately 9 months after the applicant commenced studying in Australia. I find that if the applicant was not satisfied with the package course his agent had enrolled him in, he had more than sufficient time to change his enrolment in the Certificate IV in Information Technology. Further, I consider the applicant has provided insufficient explanation for why he did not enrol in another course prior to February 2021. The applicant claimed that he was affected by the COVID-19 pandemic and by related financial issues, however I do not consider this to be a sufficient explanation for the applicant remaining unenrolled for a period of approximately 13 months while he continued to hold a Student visa.

1. I find that the applicant enrolled in the Diploma of Business in February 2021 primarily to obtain a successful visa outcome. I have significant concerns with the applicant’s evidence that he told his new agent to enrol him in a course which would assist him with business, but not to enrol him in a Business course per se. I also have concerns with the applicant’s oral evidence that he had no intention of enrolling in courses in either Information Technology or Business. I also have concerns with the applicant’s evidence as to how he deferred to his agents to choose his courses for him. This suggests the applicant did not engage with the process of researching and selecting his previous enrolments in Information Technology and Business and obtained these enrolments primarily to maintain ongoing residence in Australia, rather than because of a genuine interest in studying these courses or obtaining the qualifications. I also place weight on the cancellation of the Diploma of Business in September 2021 due to unsatisfactory course progress.

1. I also have concerns that the applicant did not commence enrolment in the Certificate III in Commercial Cookery and his current package course until 4 April 2022 and remained unenrolled for a period of over 6 months after his enrolment in the Diploma of Business was cancelled. While the applicant did not hold a Student visa at this time and therefore was not in breach of the enrolment condition, I nevertheless consider this information relevant in assessing the applicant’s stated intentions. Overall, I have significant concerns about the applicant’s enrolment history, which suggests that the Student visa programme is being used to circumvent the intentions of the migration programme and to maintain ongoing residence.

1. There is nothing to suggest that the applicant has entered into a relationship of concern for a successful Student visa outcome. I also make no adverse findings regarding the applicant’s knowledge of living in Australia, or of his intended course or education provider.

1. I have some concerns regarding the information the applicant has provided as to his ties with Australia, but make no adverse findings in relation to this factor. As noted above, the applicant provided a medical letter which indicates that he has a partner in Australia, however the applicant denied this. I am prepared to accept the applicant’s evidence in this regard and find that this reference to the applicant’s partner in the letter of Dr Mak is a mistake or misunderstanding by the doctor. I therefore accept the applicant has no family, relationship or community ties to Australia. I have some concerns with the vague and inconsistent information which the applicant provided with respect to his employment in Australia, including whether he continues to work as an Uber food delivery driver. While I find the applicant’s evidence that his friend uses his Uber account to be perplexing given the taxation implications of such an arrangement, I am prepared to accept that the applicant has not worked for Uber since 2020. I also accept that while the applicant worked as a casual food runner/kitchen hand for Lilong until May 2022, and food delivery driver for Nick’s Seafood Restaurant until January 2022, he was not employed at the time of the hearing. There is insufficient information to suggest the applicant is attempting to build up a career in Australia or to indicate that any employment opportunities would act as a strong incentive to remain in Australia.

Value of the course to the applicant’s future

1. The applicant claims that he intends to utilise the Diploma of Hospitality Management to return to Malaysia to open a restaurant. He claims that he intends to take over his father’s furniture and design business, which he will then sell to fund the restaurant. I accept the applicant’s claim that his father owns a business in Malaysia, which he will one day own or inherit and can sell to obtain the funds to open his own restaurant. I note also that the applicant’s proposed studies in Commercial Cookery and Hospitality Management are relevant to his stated plan to open a restaurant.

1. I however have concerns that within the past three years the applicant has had enrolments in Information Technology, Business and now Commercial Cookery/Hospitality Management. I have concerns that the applicant has now enrolled in his proposed course of study not for his stated reasons, but to obtain a successful Student visa outcome and to maintain ongoing residence. While I have had regard to the need for decision makers to allow for reasonable changes to career or study pathways, I consider that the applicant’s enrolment history as a whole indicates a lack of a clear pathway or direction. I also consider that if the applicant genuinely wished to start a restaurant in Malaysia, he had opportunities to enrol in courses in Commercial Cookery/Hospitality Management at an earlier stage, but instead remained unenrolled for significant periods of time.

1. I also note that the applicant holds a Bachelor of Business Administration from Malaysia, a course which is at a higher level than the vocational courses which he currently proposes. While I accept that qualifications in Commercial Cookery and Hospitality Management would extend the applicant’s employment prospects to the hospitality field, I find that overall, the proposed qualifications are likely to offer only incremental improvement to the applicant’s employment and business opportunities over and above his existing qualification at a higher level.

The applicant’s immigration history

1. As noted above, the applicant arrived in Australia in July 2018. He has held a Visitor visa, one Student visa and associated Bridging visas. The Student visa application under review

was lodged in December 2020 and coincided with the expiration of his first Student Guardian visa. The applicant did not complete either of the courses which were the subject of his first Student visa and did not commence the second course. He remained unenrolled for a period of over 12 months while he held this Student visa, in breach of the enrolment condition of his visa. Furthermore, the applicant’s enrolment in the Diploma of Business, which was the subject of the visa application under review, was cancelled in September 2021 because of unsatisfactory course progress. The applicant claims that he did not wish to enrol in either the Certificate IV in Information Technology or the Diploma of Business, but was enrolled in these courses because of communication issues with two different agents. I did not find the applicant’s claims in this regard to be convincing and consider the applicant had more than sufficient opportunity to enrol in courses of interest, but instead remained unenrolled for significant periods of time. I have considered the applicant’s various claims, including his difficulties in contacting the colleges where he was enrolled, the impact of the COVID-19 pandemic and his financial circumstances, but even when all of these reasons are considered as a whole, they do not provide sufficient explanation for the applicant’s adverse enrolment history.

1. The Tribunal considers the applicant commenced studying in Australia over three-and-a-half years ago. In that time, he has enrolled in three courses which were of 12 months duration or less, none of which he has successfully completed. This raises significant concerns about the condition in cl. 14(b)(iii) of Direction No. 69. I have had regard to the applicant’s claim that he is currently enrolled in the Certificate III in Commercial Cookery and performing well, as well as to the submissions of his agent in this regard. I have had regard to the letter from Reach Community College, dated 30 August 2022, which indicates the applicant is enrolled in this course and that his attendance is good. While I have given weight to this letter and the applicant’s evidence of his current academic performance, I do not find this evidence sufficient to overcome the significant concerns with the applicant’s enrolment history and academic performance as a whole, which include the significant periods of non-enrolment and the cancellation of his last course because of unsatisfactory course progress.

1. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Given the length of time the applicant has remained in Australia, his poor academic record to date and the significant gaps in his enrolment history, the Tribunal is concerned that the Student visa may be used primarily to maintain ongoing residence.

1. The evidence regarding the applicant’s non-enrolment from 18 November 2019 to

   1 February 2019 is also relevant to the factor in cl. 14(b)(i) of Direction No. 69. The applicant held a Student visa for most of this time, until 2 December 2020, when he was granted a Bridging visa. I find that the applicant was in breach of the enrolment condition (Condition 8202) of his previous Student visa for a period of over 12 months. I consider this to be a significant period of time and therefore a significant breach. I have considered the applicant’s stated reasons for this breach, but do not accept that they were beyond the applicant’s control. I have had regard to his claim that he did not know that he was in breach of the condition as he didn’t read his visa conditions, but do not find this to be an acceptable or reasonable response. I note that it is the responsibility of visa holders to ensure they comply with the conditions of their visa. I consider that the breach first occurred before the COVID- 19 pandemic and the applicant had sufficient time to obtain another enrolment and remedy the breach. I do not find the applicant’s explanations of his difficulties in communicating with agents or with his education provider to be convincing, nor do I consider there to be any evidence of any compelling circumstances for the breach.

1. For the sake of completeness, the Tribunal notes that it does not make any adverse findings regarding the remaining factors relating to the applicant’s immigration history. There is

nothing to suggest that he has previously been refused a visa application or had a visa cancelled or considered for cancellation. There is nothing to indicate that he has any other applications for a different class of visa which are yet to be finally determined. There is nothing to indicate that he has an adverse visa or migration history overseas. However, for the reasons provided above, the Tribunal has concerns regarding the factors at clauses14(b)(i) and (iii) of Direction No.69. The Tribunal gives weight to the applicant’s circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia.

Any other relevant matters and conclusion regarding findings

1. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. I note that while the applicant has provided information about treatment for a ganglion on his right hand, he has not claimed that this medical condition affected his ability to study, nor that it would impact his ability to study in the future. While I have also considered the submission from the applicant’s agent that the applicant would like to have this condition treated in Australia, as well as the applicant’s claim that he cannot afford this treatment in Australia unless the Student visa is granted, I do not consider this information to be relevant in respect of the grant of the Student visa, nor do I consider it to be a sufficient reason for the grant of the Student visa having regard to the above findings about the applicant’s enrolment history. The Tribunal has considered all the information provided by the applicant in support of the application. I have had regard to the submission from the applicant’s agent that there are compelling circumstances for the grant of the Student visa, but do not find this to be the case. I consider the applicant has had sufficient opportunities to obtain qualifications which would be of value to him upon return to Malaysia, but either did not commence these courses or had his enrolments cancelled for non-payment of fees or for unsatisfactory course progress.

1. In assessing the applicant’s claims, I have also had regard to the submission from the applicant’s agent that the applicant was nervous at the hearing, and that this may have affected his responses. While I have considered this concern and accept the applicant may have been nervous, I consider the applicant was given sufficient opportunities to present his information and to answer questions over the course of the hearing, which ran for close to two hours, which is significantly longer than the standard time allocated to hear Student visa refusal cases. I also consider that this decision rests primarily on the applicant’s poor academic and enrolment record to date, as set out in his PRISMS record. I find that if the applicant was nervous at the hearing, it was primarily in response to questions about his poor enrolment record. I find that the applicant was also able to adequately respond to a number of the concerns raised by the Tribunal, including questions about whether he has a partner in Australia and concerns about his employment status, and the Tribunal has as a result not made adverse findings about these matters. I therefore find that the applicant was given sufficient opportunity to explain his circumstances during the course of the hearing.

1. 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).

1. 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.

1. 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

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

Frank Russo 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

1. 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.