Lee (Migration)

[2020] AATA 4565

Lee (Migration) [2020] AATA 4565 (28 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paul Lee

CASE NUMBER:  1807003

HOME AFFAIRS REFERENCE(S):          BCC2017/4727203

MEMBER:Meredith Jackson

DATE:28 October 2020

PLACE OF DECISION:  Brisbane

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.500.212 of Schedule 2 to the Regulations.

Statement made on 28 October 2020 at 1:33pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentives to remain or return – immediate family in Australia, extended family and friends in home country – not working in Australia – civil unrest, coronavirus and economic conditions in home country – work, visa and study history – value of course to future business plans – cook studying leadership courses – credible evidence and arguments – 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 2 March 2018 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 11 December 2017. 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 the applicant intended genuinely to remain in Australia temporarily.

4.    The applicant appeared before the Tribunal on 28 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5.    The applicant was assisted in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.

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

8. Clause 500.212 requires as follows:

The applicant is a genuine applicant for entry and stay as a student because:

(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i)the applicant’s circumstances; and

(ii)the applicant’s immigration history; and

(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

(iv)any other relevant matter; and

(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

(c)of any other relevant matter.

Does the applicant intend genuinely to stay in Australia temporarily?

9. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

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

·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

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.

Oral and written evidence considered

1. Prior to the hearing the applicant made submissions to the Tribunal. Relevant documents provided were the delegate’s decision; evidence of his academic circumstances; and personal submissions regarding his circumstances as a student, his career intentions and the current social and economic conditions in Hong Kong.

2. The Tribunal has also had regard to the Tribunal and Department files and had the benefit of hearing extensive oral evidence from the applicant.

Assessment of genuine temporary entrant criteria – Direction 69

The applicant’s circumstances in Hong Kong

1. The applicant Mr Paul Lee, is a citizen of the Special Administrative Region of Hong Kong, China. In his home country he had a long history of working in restaurant kitchen. Having completed culinary qualifications in Australia, he is studying management at graduate level, in order to better equip him, he claims, to start a restaurant business in his home country. He claims this is both a logical and practical step, in that he has little alternative but to pursue his studies in Australia given the civil unrest and pandemic conditions affecting Hong Kong. He claims that he also knows he needs business skills to professionally run a restaurant in his home country, and the current impasse and his presence in Australia gives him an ideal opportunity to train for the task. He says that when he left his home country in 2017, civil unrest had not begun. He was working in a Chinese style restaurant but had had no exposure to western style cooking. He intended to visit Australia to see his family and after a short time here, decided to seek to stay as a student and learn about it. At that time his father and younger sister had already emigrated to Australia. His mother has since joined them; both parents have retired here, however he has uncles and aunts in Hong Kong.

2. The applicant does not wish to study in Hong Kong, nor does he want to work there currently, because in July 2019, the passage of security law from the People’s Republic of China (Safeguarding National Security legislation) had changed the social conditions, and this was followed by the global pandemic.  He claims to want to return to his home country but considers it currently unsafe, and further, that the pandemic is threatening the economics of the hospitality industry. Tourism generally, he said, has suffered a major impact of the pandemic. But he is concerned about it, he says, only “for now”, not for the future of Hong Kong, which he considers to be his home.

3. The Tribunal raised that, given he had said conditions in Hong Kong were temporarily unsafe, and the tourism economy is suffering, the Tribunal might consider that he does not want to go home, rather, he wants to remain in Australia and work here long term. The applicant said it was true he was waiting for things in Hong Kong to improve, as he believes they will, but this allows him an opportunity to make the most of his situation through study in Australia, until things improve at home.

4. The applicant claims his career aim is to operate a restaurant in Hong Kong, but he needs western style skills, particularly those that go beyond the kitchen to management and business operations. When he left Hong Kong he was a cook in a kitchen in a Chinese style restaurant where he had had no exposure to western style cooking. When he started studying, he planned to go home in 2019 after completing cooking and hospitality courses. But he found they only dealt with running a kitchen, not running a business, as he wanted to do long-term. So he made the decision to do the Graduate Certificate in Leadership Diversity and Graduate Diploma in Strategic Leadership. Apart from filling in time when a return to Hong Kong would be difficult, they were skills he would need to run a successful Hong Kong venture.

5. The Tribunal has considered the applicant’s circumstances in his home country. Having had the benefit of hearing from him in oral evidence, the Tribunal finds his argument to be cogent and logical and ultimately credible. The Tribunal is satisfied the applicant will return to his home country after his studies, and that his current extension of studies into management areas are a practical step in that direction. The Tribunal notes the civil unrest currently being experienced in Hong Kong provides a disincentive for him to return now, but the applicant counters that he is using his time in Australia productively, as a genuine student, to prepare himself for opportunities in his home country.

6. The Tribunal finds in the applicant’s arguments both incentives and disincentives for the applicant to return to his home country, however, having taken into account the entirety of his circumstances in this regard, and weighed them, on balance considers them to somewhat favour his return home at the end of his studies.

The applicant’s potential circumstances in Australia

1. The Tribunal asked about the applicant’s current circumstance sin Australia and how he was funding his study. He responded that he had accrued savings before he left Hong Kong, and therefore could cover his own tuition fees past and future, but that he needed  support from his family for accommodation. He had not researched the employment market in Australia. There were obstacles here to employment in his case. He said he was 45 years old, with limited English, and would struggle to find meaningful work. He also held no interest in study beyond the two current courses. He stated:

   I am over 45 years old, it is very difficult to find a job in Australia.

2. With regard to the potential attraction of having his family here, the applicant acknowledged that his immediate family were in Australia, but he had many other friends and extended family in Hong Kong. There, he would not face the barriers of age and language that he faced in Australia. In time, he expected social and economic conditions to improve in Hong Kong and allow him to carve out a good future in business.  

3. The Tribunal has considered the applicant’s arguments about his circumstances in Australia and acknowledges in particular that for a mature person who has spent many years his field of hospitality and cooking, and who has limited use of English, there may be barriers to re-establishing in Australia that do not compare with opportunities for him in Hong Kong to provide specialised food services in a market he understands. The Tribunal weighs these considerations somewhat in the applicant’s favour.

Value of the course to the applicant’s future

1. As described above, the applicant is enrolled to study graduate-level courses in leadership, the second of them concluding in February 2022. The Tribunal pointed out that in 2019 he had stated, in written submissions, that he was planning to go home after his initial hospitality courses. The Tribunal asked the applicant whether he had a detailed plan for his future, such as, had he developed a business plan for a restaurant, or had he looked at risks present in business amid civil unrest in Hong Kong. The applicant stated in response:

   The previous courses only concerned management inside the kitchen whereas the course I am now doing, covers all aspects of the management of a restaurant. I did have a plan when I did my first courses, basically that I would go home to Hong Kong when they finished. I knew I was familiar with how to order food and so on. But when the courses were over, I realised they were not enough; I still lacked the wider management aspects needed for a restaurant. In my new courses I am learning how to advertise, understand demographics, know my customers, manage risk. When I first started my studies, the civil unrest had not begun in Hong Kong. These courses are teaching me things, (such as) how to control risk.

2. Having considered the value of the applicant’s course to his future, the Tribunal notes he worked in hospitality and cookery for an extended period in his home country, has not worked in Australia, and is studying within his hospitality field and pursing a coherently expressed plan for self-improvement. The Tribunal acknowledges his arguments with regard to management, as well as culinary, skill for such a venture, and weighs the value to his future of his current course, in his favour.

The applicant’s immigration history

1. The applicant arrived in Australia on a visitor visa in October 2017 and within weeks, had applied for a student visa. The applicant claims it was a reasonable thing to do and one that is not disallowed by the student visa program. The Tribunal notes he has since studied steadily, with minimal gaps, while being the holder of initially, travel authorities and then a bridging visa. The applicant said he had never applied for skilled visas, or any other visas anywhere, and he was very concerned about having a visa refusal on his record. In relation to his family situation in Australia, he stated:

   I understand immigration policy and procedures are important, but just because my parents are Australian citizens it is unfair to say I will not return home.

2. The applicant’s representative, invited by the Tribunal to comment towards the end of the hearing, stated that his client is now beyond the age limit for a skilled visa in Australia, and further, he had not sought one, and that he had other options if he wanted to live abroad. He could go the United Kingdom, where Hong Kong residents were being accepted, but was intent on returning to Hong Kong. There is no evidence before the Tribunal that the applicant has not abided by his visa conditions.

3. The Tribunal has considered the applicant’s visa history and weighs this consideration somewhat in his favour.

Conclusion

1. The Tribunal has considered the applicant’s evidence as a whole, and against the factors in Direction 69. It concludes that on balance, the applicant is a genuine student, and a genuine applicant for entry and stay as a student. To his credit, he has not disguised, when giving evidence, that there are disincentives for him in a return to Hong Kong in the short term, and he has strongly argued that he is using his study time in Australia wisely and with a cogent purpose: that of returning home to start a business. He has claimed, with some merit, that when he is finished studying in February 2022, he will be in a strong position to return and start a restaurant or get a good job that builds on his earlier skills, connections and native tongue, aided by reasonable English. The Tribunal acknowledges that the applicant’s parents and sister are settled in Australia, and that this may be an incentive for him to try to remain. However the Tribunal also notes his expressed faith in and apparent affection for his home country towards a viable future for himself as a hospitality manager. He considers, rightly or wrongly, that such a future will not be open to him in Australia because at 45 years, he is too mature-aged, and there is too much competition for jobs. The Tribunal notes that despite his visa refusal, the applicant has studied consistently and logically towards his planned future since 2017. The Tribunal is satisfied he is working towards a return to Hong Kong at the end of his course in 2022.

2. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

3. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

4. 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.

5. 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

1. 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 of Schedule 2 to the Regulations.

Meredith Jackson
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

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

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

3. 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

1. 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.

2. 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

1. 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;

   dwhether 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

1. 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.

2. 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

1. 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

1. 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.