Tsui (Migration)

Tsui (Migration) [2019] AATA 1808 (5 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hang Kwong Tsui
CASE NUMBER:  1730573
HOME AFFAIRS REFERENCE(S):           BCC2017/2598412
MEMBER:D.Triaca
DATE:5 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 05 June 2019 at 1:44pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – no response to invitation to provide further information – not entitled to appear before the Tribunal – genuine temporary entrant – cavalier attitude towards visa requirements – length of stay in Australia – insufficient academic progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 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 Immigration and Border Protection on 15 November 2017 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 21 July 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
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(a)of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily as a full time student.
359(2) INVITATION
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 5 April 2019. The invitation advised that, if the information was not provided in writing by the prescribed period, being 23 April 2019, 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 applicant 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 of this application for review.
On 16 April 2019, the applicant responded in writing to the Tribunal’s request (359 Response) and consented to the Tribunal deciding the review without a hearing.
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 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 not 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.
The applicant was assisted in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded 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. The issue in the present case is whether the applicant genuinely intends to stay in Australia temporarily as a full time student.
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 26 year old citizen of Hong Kong. He first arrived in Australia in 2009 as a High School student. He has subsequently been granted second Student Visa in 2014. In July 2017 he applied for a further Student Visa. On 15 November 2017, the delegate of the Department refused the applicant’s application for a Student Visa. On 5 December 2017, the applicant applied to the Tribunal for review of the decision. On 8 December 2017, the applicant’s representative provided the Tribunal with a copy of the delegate’s decision.
The Tribunal has read and had regard to documents provided by the Applicant to the Department including the applicant’s application for a Student Visa (df 1-17);Notification of Grant of Bridging Visa (df 24-28); Certificate of Diploma of Management and Record of Results Technical Education Development Institute (df 30 – 31); Certificate of Health Cover; documentation in relation to parents financial support (df32-38); GTE Statement 26 September 2017 (df 39-40); passport extracts (df 41); Letter of Applicant 16 July 2017 (df 44); Appointment of Authorised representative form 956A (df 45-48); Request for more information (df 50 – 60); delegate’s decision notice of refusal (df 66-76).
On 16 April 2019, the applicant provided his 359 Response, together with a current Confirmation of Enrolment at Academy of Information Technology Bachelor of Digital Design commencing 13 March 2017, due to be completed 1 March 2020. Certificate of Diploma of Management and Record of Results at Technical Education Development Institute 13 April 2016; Record of Results from Academy of Information Technology. The Tribunal has read and had regard to these documents.
The applicant’s family is listed in his 359 Response as his parents, brother and sister all of whom are resident in Hong Kong. He states he last saw his family in December 2018. He says he speaks to them weekly by telephone. In circumstances in which the applicant has resided in Australia for almost a decade, appears to have managed his relationships via telephone and visiting, and is seeking to extend his stay, the Tribunal does not consider the applicant’s personal ties operate as a significant incentive for him to return home.
The applicant states he has no community or family ties to Australia. Although, the Tribunal considers it is likely that the applicant, having lived in Australia for an extended period of time has developed ties to the Australia, there is no evidence before the Tribunal to conclude that the Applicant’s ties to Australia are of such a nature that they operate as strong incentive to remain and the Tribunal does not place weight on this factor adverse to the applicant.
The applicant’s academic history is set out in his 359 Response. His record is mixed. He has enrolled in a Certificate IV in Frontline Management at Cambridge International College and completed this course in October 2014. He completed a Diploma of Business at TK Melbourne in May 2015 and a Diploma of Management at TEDI in March 2016 and a General English at Chambers completed in November 2016. However, his 359 Response states enrolled in and did not complete VCE at Cheltenham Secondary College, only completing Year 11. He enrolled in but did not complete Foundation Studies at RMIT in 2013. He also enrolled in and never started a Bachelor of Business at Cambridge International College.
The Tribunal notes that the effect of the applicant failing to commence the Bachelor of Business (Management) was that the education provider cancelled his enrolment on 4 September 2014. This resulted in the applicant breaching visa condition 8516 at the relevant time, on the basis that the visa holder failed to continue to be enrolled in his principal course or another course in the Higher Education Sector or subject of a current offer of enrolment. He appears to have commenced a Diploma of Management shortly thereafter.
Between March and April 2014, the applicant was an unlawful non-citizen for a period of 26 days between cancellation of Foundation Studies at RMIT and enrolment in Certificate IV in Frontline Management.
The Tribunal considers that these lapses appear to have been rectified promptly by the applicant. However collectively these lapses are indicative of a cavalier attitude towards the visa requirements and the Tribunal considers the applicant is ultimately responsible for complying with the visa requirements. Accordingly, the Tribunal places a little weight against the applicant in this regard.
The Tribunal has regard to the applicant’s GTE Statement dated 26 September 2017. He explains his early academic missteps, stating that he had indulged in online games and this led him and wasted his time. He stated that he intended to concentrate on his study. His letter headed “Dear Officer” dated 16 July 2017 states that he played online games and did not pay attention to study and became “lost”. He stated he regretted his previous behaviour and would focus on his study.
The applicant provided a copy of his records of results from his current course. Again his results are mixed, having failed a number of subjects including 4 in in the second semester of 2017 ending 22 October 2017.
Whilst the applicant has improved his productivity in the sense that he has not failed as many subjects since 2017, his progress can only be described as unsatisfactory having regard to the fact that since the start of 2018, he has attained 7 passes, a credit and 3 fails including a fail in his most recent terms ending in 3 March 2019. His record of results provided to the Tribunal states his term attendance for the current term is recorded at 77%. The Tribunal is concerned that the applicant is not progressing academically at a level that one would expect given his acknowledged early failings. There is no evidence before the Tribunal to suggest the applicant has any reason for unsatisfactory course progress.
If a student, holding a student visa, finds that they are unable to maintain satisfactory course progress for personal reasons, the student has a very definite choice. One choice is to advise the Department that the student is at risk of breaching Condition 8202 and return to the student’s home country until such time as the student is personally ready to study successfully in the selected course. Another choice is to remain in Australia on a valid student visa which the Tribunal considers is a decision to recommit to achieving satisfactory course progress. In this case, the applicant has by this words and actions recommitted to achieving satisfactory course progress but on any objective view he has not actually achieved this.
In summary, in a period of 8 years, the applicant has only completed year 11, English courses and a Diploma of Management, Certificate IV in Frontline Management and a Diploma of Business. He is now partway through a Bachelor of Digital Design. The Tribunal does not consider this sufficient academic progress for a student whose primary purpose for being in Australia is to study and progress academically.
The applicant states he wishes to continue studying in Australia. However, the applicant did not provide any evidence and did not explain whether or not similar courses were available in his home country and did not provide any explanation as to why he could not undertake study in his home country. Accordingly, the Tribunal is not able to conclude whether the applicant has reasonable reasons for not undertaking study in his home country.
The Tribunal is concerned that the value of the applicant’s current studies to his future is marginal. In his 359 Response he states he wants to find a position in a Mobile App Design and IT Development Department in Hong Kong and anticipates earning $50,000 - $70,000 per annum. He gives no real indication how completion of his studies will assist him to obtain employment or improve his employment prospects in his home country or any research he has undertaken in relation to the requirements of obtaining employment in the field he expresses an interest in.
The applicant holds no concerns in relation to potential military service or civil or political unrest in his home country and the Tribunal places weight on this consideration in his favour.
There is no evidence before the Tribunal in relation to the applicant’s circumstances in his home country relative to others there.
The applicant did not declare a visa history outside Australia and Hong Kong. The Tribunal makes no adverse findings concerning the applicant’s immigration history outside of Australia.
There is no evidence before the Tribunal in relation to the applicant’s economic circumstances in Australia or Hong Kong. The applicant’s parents provided evidence (df 37) to the effect that they would support him financially and continue to do so to enable him to complete the design course. They say further, “After his graduation, we will keep supporting him if he wants to work in a related field. Meanwhile we have an aged-care nursery that needs him to inherit.” There is no evidence to suggest that the applicant works in Australia. The Tribunal does not consider economic circumstances of the applicant operate as a significant incentive not to return home.
The Tribunal recognises that the United Nations classifies Hong Kong as a very high human development country ranking it 7^th in the world by the United Nations Human Development Index.[1] Australia is also classified as a “very high human development” and is ranked third. It is an objective measure whereby the Tribunal can conclude that the applicant’s visa application is unlikely to be motivated by more general economic opportunities available to the applicant in Australia rather than specific study opportunities.
[1] United Nations Development Program, Human Development Indices and Indicators: 2018 Statistical Update (UNDP, 2018).
There appear to be no other matters relevant for the purposes of determining the present application on review.
Having considered all the information before it, the Tribunal is concerned that the applicant is using the student visa program to circumvent the ordinary migration program in order to maintain ongoing residence in Australia.
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.

[2019] AATA 1808

5 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction