LI (Migration)

LI (Migration) [2020] AATA 951 (26 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr YI LI
CASE NUMBER:  1818032
HOME AFFAIRS REFERENCE(S):          BCC2018/1797177
MEMBER:D Triaca
DATE:26 March 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 26 March 2020 at 4:04pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no response to s359(2) invitation – not entitled to appear before the Tribunal – value of course – inconsistent with applicant’s level of education – significant regression in level of study – reasons for studying in Australia – length of time onshore – limited travel home – incentive to work in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 May 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 24 April 2018. 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.
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 applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate‘s decision was provided to the tribunal with the applicants review application.
The Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal on 19 November 2019. The invitation advised that, if the information was not provided in writing by the prescribed period, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the applicant‘s nominated address, being the address provided by the review applicant in connection with this application for review.
On 2 December 2019, the applicant applied to the Tribunal for an extension of time. On 4 December 2019 the Tribunal extended the time for compliance to 3 January 2020. On 19 December 2019 the Tribunal, of its own volition, further extended the time for compliance to 24 January 2020 in light of the upcoming Holiday period.
The applicant did not respond to the Tribunal‘s request within the extended period of time, or at all.
In these circumstances, the applicant is not entitled to appear before the Tribunal: Section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.
It is appropriate to highlight that a decision maker is not required to make the applicant‘s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department as well as information that may be discerned from the delegate’s decision itself. A copy of the delegate’s decision was provided to the Tribunal with the review application.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Genuine applicant for entry and stay as a student (cl.500.212)
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?
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.
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.
The applicant is a 30 year old citizen of China. He first arrived in Australia on 11 November 2013 proposing to study a Master of Information Technology Studies Advance. He successfully completed this course on 31 December 2015. He subsequently obtained a VC-485 Temporary Graduate Visa (post study work visa) on 11 May 2016 and worked in Australia in accordance with that Visa. On 24 April 2018, the applicant applied for a further student visa, the subject of this application. ON 31 May 2018 a delegate of the Department refused the application (delegate’s decision). On 20 June 2018 the applicant applied to the Tribunal for a review of the delegate‘s decision and provided the Tribunal with a copy of that decision.
The Tribunal has read and had regard to documents provided to the Tribunal and the Department by the applicant including the delegate’s decision; Application for a Student Visa 24 April 2018; Genuine Temporary Entrant Statement 22 April 2018; Applicant’s Financial Support Statement; Certificate of Overseas Student Health Cover; Passport Extracts; Employment Offer; Confirmation of Enrolment for Diploma of Project Management and Advanced Diploma of Leadership and Management at Australasia International School.
Prior to arriving in Australia, the applicant completed a Bachelor of Communication and Engineering at Shanghai Normal University in China. He commenced a Master of Information Technology in November 2013 and completed this course. In the delegate’s decision it refers to a completion date as 31 December 2015. In the application for a student visa it states the completion date was “March 2016“. This difference does not materially affect my decision and I pay it no regard.
After completing his Master’s course, the applicant found work in Australia as a Network Engineer from August 2016 to April 2018 at Efiniti Telecommunication Services. He then sought to return to study and enrolled in two courses for which he has produced Confirmation of Enrolment documents. First, a Diploma of Project Management which was due to be completed on 26 May 2019 and secondly, Advanced Diploma of Leadership and Management due to commence on 27 May 2019 and be completed on 24 May 2020. There is no evidence before the Tribunal in relation to the applicant’s academic progress in respect of either of these courses.
The Tribunal considers that the proposed study of either the Diploma of Project Management or the Advanced Diploma of Leadership and Management (the proposed courses) offer the applicant no value whatsoever. The applicant already holds a Bachelor’s Degree from his home country and a Master’s Degree from Australia. He has also has significant work experience in Australia. The proposed courses are not consistent with the applicant’s current level of education and equate to a significant regression in his studies. The Tribunal considers that he is well placed to return to his home country and find suitable employment irrespective of whether or not he completes either or both of the proposed courses.
The Tribunal has read and had regard to the Employment Offer made to the applicant by Beijing Creation Science & Technology Co. Ltd and notes that there is nothing in this document that would suggest that the offer is predicated on the successful completion of an Advanced Diploma of Leadership and Management.
In his GTE Statement, the applicant states his future plan is to return home and find a “proper job” in the IT industry in a Chinese company that has overseas business or an overseas IT company. The Tribunal considers that the applicant has not provided any reason why he could not return home and attain his goals at the moment. He seems well qualified and he has not demonstrated how the further Diploma course would improve his employment prospect or remuneration.
The applicant has not advanced reasonable reasons as to why he could not study a Diploma level course in China. He has not provided any evidence in respect of what remuneration he can expect using the qualifications in his home or a third country compared to what he can receive in Australia. He says that the Australian College will provide a higher level of education than China. Without any evidence to support this, the Tribunal does not accept his statement.
The lists his family on his application as his Parents residing in China. At the time of his application, the delegate’s decision records that he had spent a cumulative period of 1594 days onshore and 31 days offshore since arriving in Australia in 2013. In these circumstances, the Tribunal considers the applicant has no significant incentive to return home.
There is no evidence before the Tribunal in relation to the applicant’s circumstances in his home country relative to others there.
There is no evidence before the Tribunal in relation to whether the applicant has any concerns in relation to potential military service commitments in his home country that may operate as a significant incentive not to return home.
There is no evidence before the Tribunal in relation to whether the applicant has any concerns in relation to political and civil unrest in his home country that may operate as an inducement to remain in Australia indefinitely.
The applicant appears to have a reasonable knowledge of living in Australia. This is not surprising as he has lived here for over six years.
The applicant states that he is “unemployed” on his application. However the delegate’s decision confirms he had worked in Australia for over 18 months as a Network Engineer between August 2016 and April 2018. He states on his application that he has the financial support of his parents and provided a financial support statement from his parents. There is no other evidence in relation to the applicant’s economic circumstances.
The Tribunal considers that the applicant is very well qualified to find work in Australia. He has two degrees and significant work experience. Whilst there is no evidence that he currently works, the applicant has not taken the opportunity to update the Tribunal in relation to whether or not this has changed since the time of the application. Further, the Tribunal is of the view that the applicant’s potential to work in Australia and earn Australian Dollars through ordinary employment operates as a significant incentive to remain here.
The applicant has not declared any concerning travel history and the Tribunal makes no adverse findings against him in this regard.
Having regard to all the evidence before the Tribunal, the Tribunal considers that the applicant is seeking to utilise the student visa program as a means to extend his time in Australia thereby circumventing the intention of the program. There is no sensible explanation as to why the applicant, holding a Bachelor‘s Degree and a Master‘s Degree, together with significant work experience, is not in a position to return home and find suitable employment. The only credible explanation is that he would prefer to remain in Australia. In these circumstances, the application is refused.
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).
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
D Triaca
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.

[2020] AATA 951

26 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal