Su (Migration)

[2018] AATA 2333

Su (Migration) [2018] AATA 2333 (23 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bo Yu Su
Mrs Chiung Yun Tsao

CASE NUMBER:  1617533

DIBP REFERENCE(S):  bcc2016/2089570

MEMBER:Gabrielle Cullen

DATE:23 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 23 May 2018 at 10:40am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether the applicant genuinely intends to stay in Australia temporarily – Significant time spent in Australia – Limited academic progress – Limited knowledge of proposed studies – Witness credibility – Vague and inconsistent evidence as to the applicant’s career plans – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499
Migration Regulations 1994 (Cth), Schedule 1, Item 1222, Schedule 2, cl 572.223(1)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 18 June 2016. The delegate decided to refuse to grant the visas on 3 October 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. Movement records indicate that the first named applicant (the applicant) arrived in Australia on 31 January 2012 on a subclass 417 working holiday visa valid, after extension, to 31 January 2014. He was then granted a subclass 572 dependent visa on 10 Mach 2014 valid to 23 July 2016. During his time in Australia he has departed Australia from 12 June 2012 to 18 June 2012, 10 January 2013 to 20 March 2013, 10 February 2015 to 1 March 2015 and 25 January 2016 to 22 February 2016. He also returned to Taiwan in 2017.  He and the second named applicant applied for the visas to which this application relates on 18 June 2016.

4. Certificate of Enrolments attached to the applicant’s application refer to the applicant studying a Certificate I in Spoken and Written English from 18 July 2016 to 13 January 2017, a Certificate II in Spoken and Written English from 23 January 2017 to 21 July 2017 and then undertaking a Certificate III and IV in Commercial Cookery, finishing 25 January 2019.

5. The evidence at the time of this decision indicates the applicant successfully completed the Certificate I in Spoken and Written English on 13 January 2017 at Stanley College. A letter from Stanley College dated 17 June 2017 indicates he was then enrolled in the Certificate II in Spoken and Written English from 23 January 2017 to 21 July 2017. There is no evidence he successfully completed the Certificate II in Spoken and Written English. He then enrolled at World College in the same course from 10 July 2017 to 18 February 2018. A letter submitted from World College dated 16 November 2017 indicates he is attending this course and has an attendance rate of 80%.

6. He submitted updated COES as to this study and to study a Certificate III in Commercial Cookery from 9 April 2018 to 7 April 2019, a Certificate IV in Commercial Cookery from 8 May 2019 to 3 November 2019 and a Diploma of Hospitality Management from 2 December 2019 to 31 May 2020.

7. In a statement to the Department he indicated he has worked at Su Yi Hsing Restaurant from 2006 to 2010. He said since leaving school he did not obtain any other qualifications. He submitted as he likes cooking he wants to complete the course and become a cook. He claimed Sui Yi Hsing wants to employ him again as an internationally qualified cook once he completes the cookery course. He outlined why the cookery courses in Australia are better than studying overseas. He also provided an employment reference letter dated 17 June 2016 indicating he was employed at Su Yi Hsing Restaurant from 2006 to 2010. The letter notes he wishes to learn cookery skills in Australia so he can return from overseas and work for the company.

8. He also provided a resume indicating employment as a cook at Kung Fu restaurant in Australia from March 2016 to May 2016 and at a Chinese Restaurant from May 2016 to September 2016. He was asked for payslips but he said he does not have them as he works as a self-employed cleaner.

9. The delegate decided to refuse to grant the visas on 3 October 2016. The delegate decided to refuse to grant the visas because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned that the letter from Su Yu Hsing Restaurant did not refer to the position he will hold, salary or duties. The delegate found it unlikely that the restaurant is able to predict their staffing needs in three years’ time. She submitted that she had serious concerns regarding his claims for future employment on return to Taiwan. The delegate noted his resume indicated he studied international trade in Taiwan. She was also concerned that he had spent a significant period in Australia having arrived in January 2012.

10. On 21 October 2016 the applicant lodged an appeal to the Tribunal and attached the decision of the Department. Also lodged was a letter indicating that the restaurant in question, Su Yi Hsing is owned by the applicant’s family. It notes while in Australia as a dependent of the second named applicant’s visa he assisted his Taiwanese Australian friend, Mr Chan whose family operates a leading Perth Chinese restaurant. The submission notes that Mr Chan needed a partner to set up a part time cleaning franchise business. He claims his period of work should not be seen as a negative but as evidence of being an entrepreneur.

11. A letter from Mr Wayne Chan dated 20 October 2016 was also attached. It notes that his sister and mother are part owners of the Chinese Seafood Restaurant in Perth. He submits that the applicant’s family’s restaurant, Su Yi Hsing is one of the oldest restaurants in Taiwan and while the applicant studies in Australia, his cousin runs the restaurant. It notes the applicant’s aim is to become proficient in English and cooking so he can take his place in the family restaurant with knowledge and experience. He outlines why the applicant helped him with the franchise cleaner business and that he is prepared to give oral evidence that the applicant is a genuine student. A statement was also submitted by the second named applicant in a letter in which she states while the applicant initially supported her, now it is his turn to improve his English and pursue his own dream to be a qualified chef in order to take over the family restaurant in Taiwan.

12. On 9 November 2017 the Tribunal wrote to the applicant and invited him to attend a hearing on 4 December 2017. The letter, among other matters, requested the applicant provide an explanation of any gaps in his enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 572.223(1)(a) and asked him to provide a written statement addressing this issue by referring to Direction 53, which was attached.

13. The applicant submitted Certificate of Enrolments and evidence of study as noted above. Also submitted was a letter from Nikki Chan, restaurant manager of the Northbridge Chinese restaurant dated 27 March 2017. In the letter Ms Chan outlines that she is aware that the applicant’s family owns a restaurant in Taiwan that serves traditional Taiwanese food and is aware that the applicant’s aim is to study and expand the business to adapt it to the tastes of people from other countries. She claims the applicant has asked her to share her experience of running a restaurant. She notes she has agreed to provide the applicant with work experience once he starts the cookery arm of his courses. Also attached was a letter dated 12 October 2017 from Mr Yutaka Takeuchi from Matsuri to the applicant’s representative about meeting the applicant and his interest in Japanese food and culture.

14. Also submitted was a letter indicating that since April 2016 the applicant has been the part owner of AMC Commercial Cleaning Franchise.

15. Letter of supports were also provided by his Aunt dated 20 March 2017 and 15 December 2016. A letter dated 16 November 2017 from World College notes the applicant has been enrolled in General English from 10 July 2017 to 18 February 2018 and his attendance is 80%.

16. An initial submission from the applicant’s representative dated 16 November 2017 notes the applicant changed his English course provider in mid-2017 as he was unable to understand the teacher’s accent. The applicant’s representative also provided a further submission dated 29 November 2017. It notes the applicant’s aim is to return to the family restaurant of Su Ysi Hsing in a management role. As to the concern of the delegate that he had spent little time outside Australia, he refers to visits to his family in 2012, 2013, 2015, 2016 and recently in 2017.

17. Also provided on 1 December 2017 was a framed business registration and translation of the Su family restaurant in Taiwan, as well as a photo of the second named applicant with her mother and the applicant’s mother. There is also a photo of the second named applicant with both mothers and his aunt and uncle. The representative submitted in writing that each of the restaurateurs he had spoken to stressed the need for the applicant to first learn English. He notes that the letter from the applicant’s Aunt refers to Australian menus he has sent back via the second named applicant, who regularly returns to her family in Taiwan. He submits that his discussions with the applicants support the genuineness of their intentions as temporary entrants.

18. The applicant appeared before the Tribunal by video on 4 December 2017 to give evidence and present arguments. He was assisted with an interpreter in the Mandarin and English languages. His representative attended the hearing. The Tribunal raised with him that the matter before it is whether he meets the requirements of cl.572.223(1)(a). It outlined the section, the relevance of Direction 53 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.

19. The Tribunal discussed with him his study plan and future career aims and why he had now enrolled in English and cookery. He said last year when he discussed with family members his future and he decided to study in Australia. The Tribunal asked him of the value of the English and cookery courses to his future. He said he is studying English as he needs it to enter advanced study in cookery. He said he wants to study cookery as his Aunt has a restaurant and after he graduates he can return there to work. He said while studying in Taiwan before he came to Australia he worked there and wants to work there as a Chef on return. He said previously he worked in the kitchen there. He said he assisted his uncle who was the Chef in the past.

20. The Tribunal asked why it had taken him six years to realize he wanted to return to work in the family restaurant again. He said for the first two years he was on a working holiday visa and then his girlfriend was working and then his Aunt advised she wants to change the restaurant and introduce western dishes. The Tribunal asked how his study would assist this. He said he studies with people from different ethnical background, such as people from India and Hog Kong so if he studies cookery here he can bring back dishes from all parts of the world.

21. When asked if he had researched the cookery courses, he said he had before choosing the school. He confirmed he is studying Commercial Cookery in 2018 and the reason he is studying English is so he can study cookery. He confirmed he needed English to understand the teachers in the cookery curses.

22. The Tribunal asked him to give it evidence as to the Certificate III in Commercial Cookery including subjects to be studied and cost. He said the first term costs $5,000 and it is more expensive than the rest of the terms as it includes the uniforms. The Tribunal asked again the total cost of the course, the subjects he will be enrolled in and how long it will go for. He said he does not know the total cost of the course but can check on his phone. When asked again how long it goes for, he said until 2019. The Tribunal asked how long the Certificate III course is and he outlined all the courses he is currently studying and said two and a half years. The Tribunal questioned this and asked again for the course length of the Certificate III in Cookery and the areas of study, noting he had said he had researched it. It asked him again for the course subjects. The applicant asked if he could look at his phone. The Tribunal raised with him its concern that he could not provide the Tribunal with information as to the course content and what he would learn, even though he claimed he had researched it and he said he was studying cookery for his future career aim. He then spoke about his English courses and said in cookery it will give him more chance to practice and learn dishes. The Tribunal raised with him that he had said he is studying English to assist him with studying cookery and undertaking cookery for his future career aim, but was concerned as his evidence was vague and lacking in detail as to the first cookery course, being the Certificate III he claims he will undertake shortly in 2018. It noted it had asked him what he would learn and for detail and specifics as to the course, yet all he had said was that it would help him practice and make dishes. It asked whether he had anything to add or any further specifics as to the Certificate III in Cookery which he will study next year and the reason he wishes to study in Australia. He said in cookery he will be given more opportunity to practice and study restaurants. He also discussed why English is important and that there are many foreign people in Taiwan and this would help him in his work.

23. As to his study in Taiwan, he said he studied International Trading.

24. As to his current work in Australia, he said he has a cleaning business with a partner, Mr Wayne Chen. As to whether he had ever worked in a restaurant in Australia, he said about one and a half years prior to the hearing he worked in a Chinese restaurant for two months. He said this year he had been to Mr Chen’s sister’s restaurant as she is a manager in the restaurant and she shows him around as to how to manage and operate a restaurant. The Tribunal asked why if his aim is to return to the restaurant business and enhance it in new areas including western cuisines, he would not work in a restaurant in Australia which would facilitate that aim. He said he failed his Certificate II in English and changed course providers and wants to focus on his study. He said next year he will work in a restaurant.

25. He said he failed subjects in the Certificate II at Stanley College and that is why he is now at a World Collee. He said it was because he could not understand the teacher. As to his attendance rate at Stanley College in the Certificate II; he said his attendance rate at Stanley College was 74% to 76% and the reason it was low was in the last couple of weeks when he knew he was going to change schools he did not attend. As to the subjects studied or areas of learning in that course He said he failed writing. The Tribunal raised with him its concern as to his lack of evidence as to course content The Tribunal asked him again the names of the core units, particularly those he failed. He said he had so many subjects but cannot remember them but said the main ones were listening, speaking and writing. The Tribunal raised with him that his evidence appeared vague and that these three areas were for any language course. The Tribunal asked him as to the cost of the Certificate II course; he said the first payment was $2,500, then $2,000 the $1,800. The Tribunal asked him how many core units he had to complete and he said 12. The Tribunal noted information indicates there are 7 and they are not listening, writing and listening. It raised with him that his evidence appeared vague as to someone attending the course. It outlined with him examples of the subjects of this course and that there was none called listening, writing and speaking.

26. As to his current study At World College, the Tribunal asked him about that course. He said he is currently studying listening and has recently finished studying speaking and writing. He said he is studying a Certificate II at World College in English. The Tribunal asked the name of the course he is enrolled in, he said he does not remember very clearly. The Tribunal notes that this is odd and notes that the COE he has submitted indicates him as enrolled in General English not a Certificate II in Spoken and Written College at World College and not a Certificate II course. He said when they speak to agents they refer to Certificate I or II. The Tribunal raised with him that he is currently enrolled in a non AQF course and referred to the COE he had submitted. The Tribunal referred to the information sent and then referred to a letter from the College advising his attendance was 80% for the General English course.

27. The Tribunal asked him what the English language requirement is for the Certificate III in Cookery course is; he said his English needs to be fluent. The Tribunal asked if he knew the specific requirement to enter the Certificate III Cookery course; he said he needs to pass a Certificate II course. The Tribunal raised with him that he is not enrolled in a Certificate II course.

28. The Tribunal asked him that the value of the courses to his future and he said that his career aim is to return home and work in his Aunt’s business which he previously worked in from 2007 to 2010 and to add to the type of cuisine. He said his Aunt’s plan is to open another one or two restaurant and because her restaurant is close to the bench with many foreign surfers and in recent years their government has held events for tourists and his Aunt and family do not speak English, so they asked him to learn English and to study and return to help them.

29. The Tribunal asked whether he had this plan when he applied for the visa and he said he did. He said half a year ago his girlfriend’s visa was going to expire and they were planning to go back to Taiwan and his mother asked what he wanted to do and he said to return to help his Aunt and she asked if he had studied anything. He said his Aunt wanted him to study cookery so he could bring the different type of dishes to her restaurant. The Tribunal asked him whether this was before he applied for the visa and why he applied for the visa and he said that was right. The Tribunal raised with him its concern that around the time of application he had submitted to the Department a GTE statement and employment reference from his Aunt’s restaurant dated June 2016, yet no reference to it being a family restaurant or the applicant returning to work with his Aunt. The Tribunal raised with him if that was his plan then he would have raised it then and his Aunt would have stated this in her employment letter. He responded that he does not remember the materials submitted in 2016. He said he and his Aunt talk regularly and she always asks how his study going. He said the name indicates it is his family restaurant. The Tribunal raised with him that there is evidence of document fraud in Taiwan and it made lead it to place no weight on these documents as evidence of his future career aim.

1. As to his family in Australia; he said had no family members but is in a de facto relationship in Australia. He said he has his parents and younger brother in Taiwan plus his extended family.

2. The applicant indicated that there were no civil or political reasons why he could not return or military commitments in Taiwan. He said he had already done his one year military service requirement.

3. The Tribunal asked him further questions as to his future plans for the restaurant. He said he plans to work in the old restaurant for one and one and a half years and then open another restaurant in city area, as the one they have is in a rural area close to the beach.

4. As to his trips outside of Australia; he said one of the trips was to NZ in January 2013. He said he returned to Taiwan in 2017 and when asked if on the other occasions he returned to Taiwan; he said in January 2015 and January 2016 he returned to Taiwan. He said in 2012 they went to Bali. The Tribunal raised with him its concern as to his length of time in Australia, having arrived in 2012 and his proposal to stay in Australia to May 2020. It raised with him it may lead it to find he has closer ties to Australia and that he does not view his stay as temporary. He said his plan is to finish his study as soon as possible. He said his family misses him very much and want him to return as soon as possible and help with the family business.

5. The Tribunal asked the second named applicant whether she would like to say or add anything. She said she hoped he can complete his studies; they can go home as she wants to go home. She said she goes home every two to three months.

6. Mr Chen, the applicant’s cleaning business partner, also gave evidence. He said he knows the applicant will leave when he finished his courses. He said their cleaning business is up and running and he does not need to spend time in the business and can focus on his study. He said he knows the applicant is a temporary resident.

7. The Tribunal contacted Nikki Chen, Wayne Chen’s sister and the one who owns a restaurant in Perth and wrote a letter to the Tribunal. The Tribunal asked her what the applicant is studying and why he is studying. She said the applicant came to Australia to learn English and learn cooking to introduce western cuisines. She said she thinks he is learning English and cookery. She said she does not know the name of restaurant he will go to. She said she knows him socially, through her brother. She said he sometimes comes to their home to chat with his brother. She said his parents own the restaurant. She was not sure where he was studying.

8. The Tribunal raised concerns as to the weight to be placed on the letters and the prevalence of document fraud in Taiwan. It raised concerns under s.359AA as to the evidence of Ms Chen; particularly that she had said the applicant’s parents own the restaurant whereas it is his Aunt.

9. The Tribunal then contacted by telephone the applicant’s Aunt; Su Yu Ping in Taiwan who it is claimed owns the family restaurant in Taiwan. She confirmed she owned and operated the restaurant. As to the future plans for her nephew, she said he used to work in the restaurant and will do so again on return in the kitchen. As to any future plans she had discussed with the applicant, the Aunt said the restaurant is operated by her and he will work for her. As to any future plans or changes that may be made when the applicant returns she said that they have not discussed that. She said her restaurant sells Chinese/Taiwanese food. As to whether she had considered changing the cuisine, she said maybe and she will see. As to anything she wants to say, she said he is interested in returning and being the Chef. As to what type of Chef she thinks he will want to be she said she will have to wait and see what dishes he is interested in but it is a Chinese restaurant currently.

10. The Tribunal raised with the applicants under the process outland in s.359AA that the applicant’s Aunt’s evidence was vague as to the applicant’s future plans and not consistent with his, even though he had said he had talked to his Aunt about the future changes. He said the plan is that he will return and work for his Aunt and changes will be made, and a restaurant will also be opened in the city.

11. The applicant’s representative stated that he had only recently become their representative and he had had three meetings with the applicants and admires them for their genuineness. He said as to the original letter from the applicant’s Aunt not mentioning she is the Aunt, that the letter was obtained as a reference and not sought in that context. He said that the relationship between the applicant and his Aunt is shown to be close by the regular visits to the Aunt and his family by the second named applicant.

12. He said he spoke to the applicant about him wanting to be a Chef and then rang Matsuri in Perth and arranged a meeting. He said the applicant wants to learn cookery but also to know the wide business of owning a restaurant.

13. He submitted that the applicant needs to learn English before he can study cookery and believes them to be genuine.

14. In a post –hearing submission the representative submitted that each of the restaurants he has spoken to have stressed the need for the applicant to improve his English before they can help him learn to operate a restaurant

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

16. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)     the Minister is satisfied that 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)     …

17. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

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

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

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

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

18. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

19. Having considered the applicant’s claims against all the factors specified in Direction 53, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

20. As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Taiwan. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. The Tribunal accepts that courses in Australia are more highly respected and internationally recognised. It accepts a wide range of nationalities attend the courses. The Tribunal accepts that the applicant has close and strong family ties in Taiwan, including his Aunt, parents and sibling. It notes, however, that his de facto partner resides with him in Australia. However it accepts that she returns regularly to Taiwan to see her family and wishes to return to Taiwan. It accepts that these circumstances in Taiwan are indicative of a person who is only a temporary entrant and wishes to return to their country.

21. The Tribunal also accepts that the applicant has enrolment in General English and Cookery courses as claimed at hearing and as evidenced by the letter from World College. It accepts since his application for a student visa he has completed a Certificate I in Spoken and Written English from 18 July 2016 to 13 January 2017. It accepts he was then enrolled in a Certificate II in Spoken and Written English at Stanley College from January 2017 to July 2017 and then changed to a General English course from 10 July 2017 at World College. However the successful completion of one course and his enrolment in the subsequent English courses since his application for a student visa are but two of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.

22. The above information indicates the applicant has been in Australia since January 2012 initially arriving on a temporary work visa. His evidence is he wishes to continue to study English and then cookery courses until May 2020. The Tribunal views as of concern his wish to remain in Australia for 8 years, studying at the vocational level from 2016 to 2020. In making this finding it accepts he returned to Taiwan in 2015, 2016 and 2017 but is of the view that such short trips do not overcome its concerns in this regard. While not necessarily indicative that a person does not wish to remain in Australia temporarily, his prolonged stay is of concern and one of the considerations.

23. The Tribunal views as of significant concern as to whether he is a genuine student his lack of knowledge as to the courses he is and will study.

24. Firstly, the applicant’s evidence as to his current study at hearing was vague and lacking in detail. When asked as to the name of the course he is currently studying he indicated it as a Certificate II course in English at World College. He said he transferred from Stanley College where he was studying a Certificate II course in English as he did not understand the teacher at Stanley College. When asked at hearing the name of the course at World College he is currently enrolled in, he said he could not remember very clearly nut said it was a Certificate II course. However information he submitted via the COE indicates the course he was enrolled in at hearing and had been since July 2017, being a period of five months to the date of the hearing, being called a General English course. The COE indicates it is not a Certificate II course, rather a course with a Non AQF award. Information indicates a Non AQF course is not a Certificate II course rather one that is not a Senior Secondary Education, Certificate I to IV, Diploma or Tertiary such as a Bachelors or Masters.[1] His lack of knowledge as to the name and level of his current course of study, at hearing, adds to the finding he is not genuine as to his study and reasons for studying.

    [1] Australian Qualifications Framework FAQs >

    Further, despite claiming he had researched the course, the applicant’s evidence at hearing was vague and lacking in detail as to the Certificate III in Commercial Cookery to commence in April 2018. In this regard he submitted a CoE indicating he was to study a Certificate III in Commercial Cookery from April 2018 with a course length of one year and a cost of $11,000. He said at hearing he had researched this course and referred to it being linked to his future career on return to Taiwan. However, he was unable to advise consistently with the CoE submitted as to the total cost of the course. He gave a range of figures that were not consistent with $11,000 indicated on the CoE. He did not know how long the course ran for, being one year, only stating it goes until 2019. He was unable to outline any names of the subjects he would study. While he said he could look at his phone to obtain the information, the Tribunal is of the view if he is genuine in his wish to study this course for his future career aim as claimed and had researched the course he would be able to provide detailed information as to the course. The Tribunal is of the view a person who is genuine in his study who had researched the course and genuine in his reasons for studying as claimed would be able to provide detailed evidence as to the course.

25. The Tribunal also views as of concern his inconsistent evidence with his Aunt as to his future career aspirations for the family restaurant. While the evidence of the witnesses, including his Aunt and the applicant was consistent as to the applicant returning to be a Chef in his Aunt’s restaurant, it was not consistent as to his further evidence as to his future directions for the restaurant and career with his Aunt. It is his claim that he has talked with his Aunt about the future directions of the restaurant and that their aim is for him to return, add different cuisines, such as western cuisine and open an additional restaurant in the City. However, when the Tribunal contacted his Aunt, her evidence was that he was returning to her restaurant to work as a Chef. She did not refer to any expansions of the restaurant group or to changing the cuisines. When asked on a number of occasions she said she would see what he wants to cook once he returned. As raised with the applicant via s.359AA their inconsistent evidence as to future changes, particiculary those he had outlined and he had said he had talked to her about, undermines his claims to be genuine as to why he is studying in Australia. The Tribunal is of the view if the applicant and his Aunt had had the discussion he claimed as to why he is studying in Australia so as to enhance the cuisines and increase the number of restaurants she would have stated that when asked.

26. In making this finding it has considered the evidence of his attendance rate being 80% at World College, the evidence of the representative that he considers the applicants’ genuine in their claims, the evidence of Mr Chen, Ms Chen, the second named applicant and his Aunt as to the applicant wanting to study to return to be a Chef. It has considered the evidence from Matsuri and that his Aunt operates a restaurant which he worked at from 2006/7 to 2010. However, the Tribunal is of the view that these pieces of evidence do not overcome its significant concerns in his evidence outlined above.

27. For all the reasons outlined above the Tribunal does not accept the applicant is a credible witness as to why he is studying in Australia. The concerns raised above lead the Tribunal to not be satisfied that he wishes to undertake the English and Cookery courses for any of the reasons he claims. Rather it is of the view he is using the student visa program to maintain residence in Australia.

28. As to the applicant’s immigration history, there is no evidence before the Tribunal he has previously travelled to Australia, or applied for a permanent visa or other visa to Australia or other countries, other than applying to Australia for student visas.

29. In making the decision the Tribunal has considered all the evidence before it, including his enrolments, that he has strong family ties in Taiwan and that his Aunt owns a restaurant in Taiwan that he used to work at from 200/ 7 to 2010; the oral and written evidence of the witnesses and the representative; however for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.

30. The Tribunal is therefore not satisfied that he is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence.

31. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 53, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

32. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that he intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

33. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a Student Visa, it must affirm the decision under review.

    DECISION

34. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Gabrielle Cullen
    Member