Wang (Migration)

[2019] AATA 2686

Wang (Migration) [2019] AATA 2686 (4 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms An - Ni Wang

CASE NUMBER:  1724330

HOME AFFAIRS REFERENCE(S):           BCC2017/2710113

MEMBER:Damian Creedon

DATE:4 June 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 04 June 2019 at 2:12pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – genuine applicant for entry and stay as a student– studies are consistent with current level of education – strong incentive to return home – applicant is currently enrolled – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363A, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218

CASES
Hasran v MIAC [2010] FCAFC 40

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 Immigration and Border Protection on 20 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 31 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.

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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The Tribunal formally wrote to the review applicant on 15 March 2019 pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal.

5. The applicant responded to the Tribunal’s request by written instrument lodged with the Tribunal on or about 29 March 2019.  By that instrument the applicant informed the Tribunal, materially, that she consented to the Tribunal deciding the review without a hearing.

6. Where an applicant consents to the Tribunal deciding the review without the applicant appearing before it, the applicant is no longer entitled to appear before the Tribunal: section 360 of the Act. Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

7. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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?

1. 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 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.

2. 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.

Overview of evidence

1. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

2. According to the delegate’s decision record the applicant is a 41-year-old Taiwanese national who has held the following visas and travel authorities:

Visa Type	Date Granted	Date Ended
Tourist UD-876	23/11/2012	15/10/2013
Student TU-570	15/10/2013	19/11/2014
Electronic Travel Authority UD-601	15/04/2015	30/07/2015
Student TU-572	30/07/2015	13/03/2017
Electronic Travel Authority UD-601	06/04/2017	01/08/2017

1. By letter dated 28 July 2017 the applicant submitted, in summary, the following information to the department in support of her application for a student visa:

   a.She graduated from “higher education” with below average results as she “never really enjoyed study in school”.

   b.She had been studying vocation training in “travel and tourism” and “general administration” that has helped her to work as an “event organiser”, a job that she “really enjoys”.  She states that she “admires” the university degrees offered in Taiwan for event management but she believes “they are not the only way to start”.

   c.She is an only child, and her mother has provided her with “significant support” in achieving her goals.

   d.She states she “does not have to worry about income” because her parents were divorced in 1995 and, due to a property settlement, she and her mother are “financially stable”.

   e.Her first job was as an “event coordinator and admin officer” with a tour business, however she was unable to pursue the opportunity to create her “own events” as she did not have business, administration and English qualifications and experience.

   f.In 2003 she partnered with a friend and opened a billiard supply store and billiard centre which provides her with an annual income.  The aspect of the business she enjoyed most was organising billiard tournaments; however she realised that her English, business and administration skills were lacking for this type of work.

   g.This ultimately motivated her to study in Australia to improve those skills and gain recognition as an event organiser.

   h.She was studying English in Australia at the Australian Institute of Commerce and Technology (AICT) when, on 1 August 2016, AICT had its provider registration cancelled by the Australian Skills Quality Authority.

   i.She referenced a Daily Mail article entitled:

   Students at a Perth training college are working as prostitutes, laundering money and running human trafficking schemes while 'studying' [1]

   j.She states that, initially, she thought that this would not affect her, but that when she returned to Taiwan “nearly everyone [knew about the scandal] and a lot of [her] friends told [her] [that her] study was wasted”.

   k.After discussions with her mother she decided to return to Australia to research another school and the courses that would suit her needs with the “shortest timeframes”.

   l.Accordingly she applied for a visitor visa to allow her time to research.

   m.She states that she selected a study pathway with a new provider comprising: IELTS (20 weeks); Diploma of Business (52 weeks); Advanced Diploma of Business (26 weeks).

   n.She states that she chose this pathway both for its practical aspects and because it provides credits towards higher education in Taiwan if she chooses to pursue it.

   o.She states that she chose Australia because the “teaching technique” suits her; it “changed [her] attitude” towards organised learning.  It is also quality-controlled and competitively priced compared with other comparable international study destinations.

   p.She chose her current provider for its “well-balanced program” with an emphasis on practical training, its central location and in view of a number of recommendations from friends.

   q.She states she has independent means and has no plans to seek work in Australia; she states her focus is on study.

   [1] >

   According to the evidence submitted by the applicant, including her response to the Tribunal's s.359A letter, she has successfully completed the following courses:

Course Name	Date Commenced	Date Completed
General English	10/2013	09/2014
Certificate II in Spoken and Written English	09/2015	07/2016
Certificate III in Spoken and Written English	07/2015	01/2017
IELTS Preparation	08/2017	01/2018
Diploma of Business	07/2018	12/2018

1. Further, she is presently studying an Advanced Diploma of Leadership and Management which she commenced in February 2019 and is due to complete in December 2019.

Analysis and findings

1. 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 and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

2. The Tribunal was initially concerned at the applicant’s slow and apparently disjointed academic progress since embarking on her further education studies in Australia.   It appears, however, that the deregistration of her (then) education provider was responsible for some, at least, of the disruption she has experienced. Taking this into account it is apparent from her study history that, since that matter was resolved in August 2017, she has progressed academically and consistently with what is expected of the holder of a student visa.  Moreover she has studied, and is presently studying, the subjects claimed and appears on track to complete her study pathway in December of this year.  The tribunal places moderate weight on this factor in favour of the applicant.

3. The Tribunal also accepts that, having lived in Australia since 2013 (with some small breaks), the applicant has sufficient knowledge of living in Australia.  Further she displayed in her submissions a good knowledge of living in Perth, and gave a rational explanation as to why she chose her specific education provider, including such matters as access to public transport and proximity to appropriate cultural support.  She also states that her reasons for studying in Australia are due both to the opportunity to gain English language proficiency and the recognition she will obtain from her qualifications in her home country.  She states that she may continue into further education in Taiwan using the qualifications she has gained in Australia.  She also provided evidence of knowledge of her intended course of study and its applicability to her planned future endeavours.  The Tribunal found her evidence persuasive on these issues.  The Tribunal also accepts that her planned studies are consistent with her current level of education and her past work experience.  In all of the circumstances the Tribunal places moderate weight on these factors in the applicant’s favour.

4. The applicant’s evidence is that her mother resides in Taiwan.  The Tribunal also accepts that the applicant is a partner in a business there that she started (in partnership) in 2003.  The Tribunal considers that these ties to her home country, in particular to her mother, provide a strong incentive for the applicant to return there at the completion of her studies.  Further, the Tribunal accepts the applicant’s evidence that she has independent means from her business and her mother.  This, together with her evidence that she does not work in Australia, dispels any concerns that the tribunal may have had that the applicant might be seeking to establish a career in Australia.  The Tribunal weighs these factors moderately in the applicant’s favour.

5. The applicant has provided copies of her study budgets based on her annual income from her mother and her business and states that she expects, when she returns to Taiwan, to earn an annual salary of between AUD$65,000 and AUD75,000 from her qualifications.  The Tribunal does not consider this estimate to be unreasonable, or to suggest an economic disincentive for her to return to her home country.

6. There is no evidence or information before the Tribunal of any military service or civil or political incidents that would act as a clear incentive for the applicant to remain in Australia.  The Tribunal places some small weight on this factor in the applicant’s favour.

7. There is no evidence before the Tribunal that the applicant, or a relative of the applicant, has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation.  The applicant’s immigration history does not raise concerns for the Tribunal. 

8. The Tribunal has turned its mind, and had regard, to the following factors as a guide to assessing the GTE criterion in this case: the applicant’s circumstances in their home country relative to the circumstances of others in that country; the applicant’s ties with Australia which would present as a strong incentive to remain in Australia (including family and community ties); whether the applicant has entered into a relationship of concern for a successful Applicant visa outcome.

9. There is no evidence or information available to the Tribunal in respect of these factors as they apply to guide a decision the applicant’s case. 

10. The Tribunal has had regard to all other relevant information provided by the applicant (or information otherwise available to the Tribunal) when assessing the applicant’s intention to temporarily stay in Australia, including information that may be either beneficial or unfavourable to the applicant. 

11. In weighing the available information the Tribunal has taken care to draw no inferences adverse or unfavourable to the applicant from any absence(s) of evidence or information.  That said, in the absence of evidence or information pertaining to a relevant factor or factors it is impossible for the Tribunal to weigh those factors in the applicant’s favour.

12. The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has previously completed the courses claimed in Australia, has said she will return home on completion of her studies, has strong family ties to her home country and all the other matters she has raised.

13. Overall the Tribunal is persuaded that the student visa programme is not being used by the applicant to circumvent the intentions of the migration programme.  For the reasons outlined above the Tribunal accepts that the applicant is undertaking her current study for the reasons she claims.

14. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. It follows that the applicant meets cl.500.212(a).

15. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

16. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

DECISION

1. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.212(a) of Schedule 2 to the Regulations.

Damian Creedon
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

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. 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

1. 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.

2. 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

1. 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

1. 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

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

2. 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

1. 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

1. 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.