Sun (Migration)

[2024] AATA 2799

Sun (Migration) [2024] AATA 2799 (30 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ziyi Sun

CASE NUMBER:  2211698

HOME AFFAIRS REFERENCE(S):          BCC2022/700001

MEMBER:Wendy Banfield

DATE:30 July 2024

PLACE OF DECISION:  Canberra

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

Statement made on 30 July 2024 at 3:57pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – arrived as guardian to high-school child – unable to depart because of COVID restrictions – completed English course but no other – business in home country and no explanation of relevance of vocational course – child now studying at university – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 August 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 21 March 2022. 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 (Cth) (the Regulations) because they were not satisfied the applicant meets the criteria of a genuine temporary entrant for study, as required for the grant of a student visa.

4. The applicant appeared before the Tribunal on 8 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. Prior to the hearing the applicant submitted the following evidence:

   ·Department of Home Affairs (the Department) notification and decision record dated 8 August 2022.

   ·Applicant’s written statement.

   ·Statement of Attainment for a Diploma of Business dated 21 February 2024.

   ·Student visa grant letter for Sicheng Liu the son of the applicant dated 7 July 2022.

   ·Untranslated Chinese document.

   ·Certificate of Deposit in the name of Liu Jian Xin from ICBC verifying deposit account to 20 May 2024.

   ·Email submission dated 10 April 2024 in reference to the applicant’s business in China.

   ·Untranslated Chinese documents.

   ·English translation of a Chinese Business Licence for Shanshan Jintian Trading Co Ltd.

6. The Tribunal also considered the evidence provided to the Department at the time of application.

7. Evidence at the hearing

8. The applicant arrived in Australia in March 2020 to accompany her son who was attending high school. At the time she held a Student Guardian visa. The applicant’s husband has remained in China where he is employed by the highways department. She also has a daughter in her home country. The applicant advised that her attended school and was accommodated at a homestay but due to COVID-19 classes were suspended. She was worried about her son because there was no one to supervise him.

9. The applicant initially studied English for one year. According to the applicant she is an accountant by profession and had her own business in China for 11 years. She claimed her business is being managed remotely and she currently works as a massage therapist in Australia. The applicant said she must go back to China after studying because of the business and because her father-in-law needs to be taken care of. The applicant claimed she has not completed any other courses apart from English.

10. The Tribunal invited the applicant to comment on information from the Provider Registration and International Student Management System (PRISMS), in accordance with s.359AA of the Act. The Tribunal advised the information was relevant to the review because it indicated her enrolment history appeared to be different to the evidence the applicant had given. The applicant was told she may ask for time to respond in which case the Tribunal would consider the request and may adjourn the hearing or provide time after the hearing. The Tribunal explained the information indicates the applicant completed a General English course on 23 January 2022 and the applicant confirmed this was the case. The Tribunal put to the applicant that according to PRISMS, she also completed a Certificate IV in Business in April 2023.

11. The applicant said she would like time to respond to the information. On 30 December 2023 the applicant applied for “an extension” because she went back to China. The applicant advised she went back to China twice in 2023, once for her daughter’s wedding and once when her daughter had a child. She said her school approved her absence for three months. The applicant then confirmed that she did complete the Certificate IV in Business and apologised for having overlooked that. The applicant advised she expects to finish studying in March 2026.

12. The Tribunal asked why the applicant decided to study in Australia. She said because of COVID she could not depart so she studied English, then decided to study business. However, the applicant said the main reason is to accompany her son. The Tribunal asked why she wanted to study if she was an accountant and had her own business. The applicant declared there are two reasons. First, her son is at university, and she wanted to accompany him while he is an adolescent in case, he makes any mistakes. She said she and her husband agreed to be separated while they help their son’s development. When asked why she needed to study herself, the applicant said her son is the most important reason. The applicant said the second reason is, it has been 11 years since she founded her business, and the course will be useful. The applicant then gave examples of the work her business carries out and the difference in approach she has learnt in Australia. She also referred to the management of employees which is different to China. The applicant declared she will be able to apply what she learnt in Australia to her business in China.

13. The Tribunal allowed the applicant time after the hearing to provide further documents.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 applicant is a genuine applicant for entry and stay as a student and whether she intends genuinely to stay in Australia temporarily, as required for the grant of a student visa.

16. 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?

17. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘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.

18. 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.

19. The Tribunal considered the applicant’s circumstances in her home country. The applicant’s husband and adult daughter continue to live in China. She stated her father-in-law also lives with the family. Her daughter married in 2023 and had a child the same year. According to the evidence, the applicant owns a business that she had been operating for more than 11 years. She had qualifications as an accountant in China. The applicant’s son came to Australia as a high school student and is attending university. When asked why she chose to study in Australia, the applicant explained she had arrived in Australia prior to COVID-19 while holding a Student Guardian visa and was accompanying her son. When she was unable to depart due to the pandemic, she decided to study English. The applicant said she then decided to continue studying and enrolled in business courses. The applicant said she chose to study in Australia because she wanted to look after her son while he was in high school and applying to university. The applicant also claimed she could use the information acquired studying business in her own business in China. The Tribunal accepts the applicant has ongoing ties to China due to her husband, daughter and extended family residing there and because of her business. However, her son is in Australia and the applicant explicitly stated he is the main reason for her enrolment to study. This weighs against the applicant in assessing whether she is a genuine temporary entrant for study in Australia.

20. In Australia, the applicant is accompanying her son who applied to university after attending secondary school. In her written statement to the Department, the applicant explained the hardships her son faced when COVID-19 restrictions affected his schooling. She also gave details of the setbacks that occurred when he was attempting to apply to Melbourne University to undertake tertiary studies. The Tribunal accepts the pandemic caused widespread disruption and that the applicant wanted to assist her son and provide guidance for him during that time. The restrictions and difficulties from COVID-19 have passed but it appears the applicant still wants to remain in Australia to take care of her son. She stated at the Tribunal hearing she and her husband had agreed they would make sacrifices to ensure their son received proper support and direction while he was in Australia. The Tribunal is not satisfied the applicant is studying for own benefit but is using the student visa to remain onshore as a parent to a student. The applicant is also working in Australia and gave evidence that she manages her business in China remotely. This indicates the applicant has ongoing family and employment ties to Australia which present as a strong incentive to remain.

21. Regarding the value of the course to the applicant’s future, the applicant provided some explanation for choosing to enrol in business, and leadership and management courses which relate to her business interests in China. However, the Tribunal notes the applicant’s own evidence for continuing to study is not primarily to improve her skills, and the Tribunal is not satisfied a company owner of more than 11 with prior accounting qualifications will benefit from studying vocational business courses in Australia. The Tribunal accepts the applicant gave examples of different management approaches she has learnt in Australia but nevertheless, she already had a successful business, one that she has been able to continue remotely from Australia. For these reasons, the Tribunal is not satisfied the applicant is seeking to undertake a course that is consistent with her current level of education. The Tribunal is not persuaded the courses the applicant is enrolled in will assist her to obtain employment or improve employment prospects in home country.

22. The applicant’s immigration history refers to her visa and travel history. The applicant arrived in Australia in 2020 holding a Student Guardian visa. She advised she returned to China twice in 2023 for family reasons. There is no evidence before the Tribunal to indicate the applicant has failed to comply with visa conditions.

    359AA response

23. The applicant initially stated she had only completed a 12-month English course in Australia and no other courses.

24. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant, particulars of information that it considers would be the reason, or a part of the reason, for affirming the decision under review. The applicant was advised the information is relevant to the review because, subject to her comment or response, it appeared the information she provided about finished courses in Australia was different to the information available to the Tribunal. The information put to her was that according to the Provider Registration and International Student Management System (PRISMS), she completed a Certificate IV in Business in 2023. The applicant was told that if the Tribunal relies on the information it may lead to the decision under review being affirmed. She was invited to comment on or respond to the information and advised that she may seek additional time in which case the Tribunal may adjourn the hearing or allow time after the hearing to provide a response.

25. The applicant initially said she did want time to comment. However, she went on to confirm she had completed a Certificate IV in Business but had forgotten to mention it. The Tribunal has not placed any adverse weight on the information contained in the PRISMS record.

26. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).

27. 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.

28. 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

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

    Wendy Banfield
    Member

    
    

    Attachment – Direction No.108

    DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 21 March 2024

    Clare O’Neil

    
    

    Minister for Home Affairs and Minister for Cyber Security

    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 - Preliminary

    Name of Direction

    This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 108.

    Commencement

    This Direction commences on 23 March 2024.

    Revocation

    Direction No. 69, given under section 499 of the Act, is revoked.

    Interpretation

    Act means the Migration Act 1958.

    Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.

    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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).

    This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.

    This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.

    Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    Preamble

    The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8. Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia. The applicant’s circumstances in their home country

    9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a) whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b) the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c) economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d) military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e) political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a) The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b) evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c) whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    d) whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e) the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

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

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

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

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

    The applicant's immigration history

    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.

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

    iv. 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;

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

    vi. 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

    vii. 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 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.