Li (Migration)

[2021] AATA 184

Li (Migration) [2021] AATA 184 (25 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jiawei Li

CASE NUMBER:  1917300

HOME AFFAIRS REFERENCE(S):          BCC2019/151830

MEMBER:Brian Camilleri

DATE:25 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 25 January 2021 at 1:50pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, study, relationship and work history – enrolment in lower-level course in different but complementary subject area cancelled – course would have been completed by now – value of course to applicant’s future – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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 14 June 2019 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 26 March 2019. 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) and the applicant did not comply with the genuine temporary entrant criterion.

4. The applicant appeared by telephone before the Tribunal on 18 January 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 complies with the genuine temporary entrant criterion.

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

7. 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?

8. 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.

9. 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.

   Applicant’s Circumstances in Home Country

10. The applicant’s father and mother live in her home country of China. Prior to entering Australia, the applicant studied high school, graduating in 2007.

11. The applicant listed no prior employment history in her home country which is not surprising given the young age she came to this country. She did not list any assets which is also not surprising given the young age she came to Australia. However in her Statement to the Tribunal she indicated her parents  owned a number of properties in Nanking and there was  one property in her own name in that city in China.

    Applicant’s Circumstances in Australia

12. The applicant first arrived in Australia on 2 April 2007 on a Student (TU-571) Visa (valid to 20 November 2007).

13. On 20 November 2007 she was granted a second Student (TU-571) Visa (valid to 9 March 2010).  On 9 March 2010 she was granted a third Student (TU-573) Visa (valid to 21 March 2014). On 21 March 2014 she was granted a fourth Student (TU-573) Visa (valid to 30 August 2015). On 3 May 2017 she was granted a partner visa (UK-820) (valid to 12 June 2019).

14. On 26 March 2019 the applicant applied for a fifth Student (subclass 500) Visa. At the time, she was enrolled in a Diploma of Leadership and Management course, which was due for completion on 19 April 2020. Her application was rejected on 14 June 2019.

15. The applicant stated that she has worked in two employment roles in Australia: (a) cashier/receptionist 2015-2017 (earning $17,000 per annum); (b) registered nurse 2018 (earning $26,000 per annum). She listed annual living expenses of $25,540 per annum.

    Applicant’s Immigration History

16. Since her arrival in Australia on 2/04/2007 the applicant has made regular trips to and from Australia to her home country:

Trip	Departure from Australia	Arrival in Australia
Onshore
11	30/01/2019	19/02/2019
10	18/04/2018	25/04/2018
9	23/07/2017	08/11/2017
8	10/06/2016	22/07/2016
7	21/11/2013	16/01/2014
6	28/12/2012	24/02/2013
5	10/01/2012	13/02/2012
4	05/02/2011	17/02/2011
3	29/11/2009	07/02/2010
2	28/12/2008	27/01/2009
1	First Arrival	12/04/2007

1. The applicant has frequently returned home to visit family during the thirteen years since her first arrival. In her statement the applicant explained clearly how she had missed her family over the many years she has been in Australia and her consistent pattern of return to her home country year in and year out suggests that her connections with her home country are strong and she would return at the conclusion of  her studies.

   Applicant’s Academic Record and Progress

2. At the time of making its decision the Tribunal had available to it the applicant’s academic record as set out in the Provider Registration International Student Management System (PRISMS) (as at 23/12/2020). The courses successfully completed are shaded grey and the status described as “Finished”. It showed the courses undertaken by the applicant. Those courses not completed successfully are marked as cancelled.

Course	Status
Diploma of Leadership and Management	Cancelled
Bachelor of Nursing (commenced on 24/02/2014 and completed on 31/07/2015)	Finished
Bachelor of Nursing (commenced on 28/02/2011 and completed on 31/01/2014)	Finished
University Foundation Studies Standard – 3 Terms (commenced 01/03/2010 and completed on 04/02/2011)	Finished
Intensive English & Senior High School (commenced on 16/04/2007 and completed on 18/12/2009)	Finished

1. The applicant was consistently enrolled in a course with a registered education provider during her time on a Student Visa up until the completion of her Bachelor of Nursing degree on 31 July 2017. After that time, for a period of almost two years (prior to being granted a partner visa on 12 June 2015) the PRISMS record does not show any completed courses but the applicant has effectively explained this in her statement to the Tribunal that at the time she was not required to be studying and was working hard to support not only herself but also her partner with whom she was living.

2. Overall, the applicant has made progress academically although it is noted that her latest course (Diploma of Leadership and Management) (theoretically) is academically regressive (a step down from the bachelor level to the diploma level) but there were sound reasons for taking this last course. It would have complemented her personal gaol of setting up a medical clinic in China (where according to her evidence there is a drastic shortage of such medical clinics of adequate standard). Her proposed course (had it been commenced) was due for completion on 19 April 2020. It was not commenced and is therefore listed as “Cancelled” in PRISMS. The applicant was asked why she had not continued studying this course whilst she awaited the very long period for her application to the Tribunal to be heard and she indicated she did not realise she was permitted to study for non-degree courses.

3. She was also asked why (given that the applicant has strong English language skills) she had not applied for some other form of visa given that she is an Australian trained registered nurse with a long and successful history of study and employment in this country. It became apparent that she had either not sought advice or not received appropriate advice as to her options of pursuing any visa other than a student visa and that possibly the emotional upset over the termination of her partner relationship had negatively impacted upon her looking after her own affairs in a diligent and timely way. This is regrettable.

4. It was explained to the applicant that the Tribunals decision had to support the delegate’s decision (taken so long ago) in the absence of a current certificate of enrolment for any course of study.

   Value of Course to Applicant’s Future Prospects

5. There is little doubt on the material shown to the Tribunal and stated in the applicant’s  s359(2) response that her proposed management course would increase her competency to open a medical practice business, which would add to her current qualification as a registered nurse and benefit her proposed medical clinic. In an alternative approach, she believes her qualifications and English language skills would enable her to become a medical trainer in China. Both prospects appeared reasonable and practical. She aspires to earning a salary of $50,000 in such a role. She stated that she has been uncomfortable returning to China owing to the COVID 19 pandemic which is understandable given the recent outbreaks in that country but it was explained to the applicant that this was not a material consideration to the grant of the student visa.

6. Given that the applicant cancelled her proposed course (which would have been completed her course by now), it is difficult for the Tribunal to find that a further stay in Australia is desirable but this should be the subject of consideration by the delegate and the department in the event of extenuating factors emerge.

   Other Relevant Matters

7. The Tribunal has considered whether there is any other matter that is relevant to the assessment of the applicant's genuine intention to temporarily stay in Australia and finds that there are no other relevant matters for consideration but remarks that its decision is arrived at reluctantly given the facts and circumstances surrounding this well qualified applicant.

8. However, on the basis of the above and in the absence of a current CoE, the Tribunal finds that the applicant does not meet the requirements of cl.500.212(a).

9. 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

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

    Brian Camilleri
    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;

    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

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.