Wang (Migration)
[2025] ARTA 458
•7 March 2025
Wang (Migration) [2025] ARTA 458 (7 March 2025)
Decision and
Reasons for Decision
Applicant:
Xiaoyun Wang
Respondent:
Minister for Immigration and Multicultural Affairs
Tribunal Number:
2316783
Tribunal:
General Member F Robertson
Date:
7 March 2025
Decision:
The Tribunal affirms the decision under review
Statement made on 07 March 2025 at 10:12am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – family and businesses in Australia and China – no permission to work – enrolment in an already completed course – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 65, 499; Direction No 108
Migration Regulations 1994, Schedule 2 cl 500.212
CASES
Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [32]
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 106
Vidiyala v Minister for Home Affairs [2018] FCA 1973
Statement of reasons
INTRODUCTION
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').
The applicant applied for the visa in July 2023. The delegate refused to grant the applicant the visa because they were not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the 'Regulations'). The applicant has applied for review of that decision. On 1 February 2025, the applicant provided a completed student visa information form to the Tribunal ('SVI Response').
The review application was heard on 27 February 2025 with the assistance of a Mandarin interpreter. The applicant made further submissions following the hearing on 6 March 2025.
After the hearing and considering the material before me, I have determined that the decision under review should be affirmed. These are my reasons.
CRITERIA FOR THE GRANT OF A STUDENT VISA
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. At least one applicant must satisfy the primary criteria in cl 500.211 to cl 500.218. The issue in the present case is whether the applicant satisfies cl 500.212 of the Regulations, in other words, whether I am satisfied that they are a genuine applicant for entry and stay as a student.
Clause 500.212 is in the following terms:
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.
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 (the 'Direction').[1] The Direction requires the Tribunal to have regard to a number of specified factors in relation to:
(a)the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
(b)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;
(c)if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
(d)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.
[1] The relevant text of the Direction is reproduced in the attachment to this decision, albeit with an amendment to correct what I consider to be a clear and obvious typographical error that appears in paragraph 14(iii/b).
The factors specified in the Direction are not a checklist but intended as a guide to considering whether the applicant satisfies cl 500.212(a), commonly referred to as ‘the genuine temporary entrant criterion’.
Subclauses 500.212(a), (b) and (c) involve discrete inquiries.[2] To satisfy cl 500.212, all of subcls (a), (b) and (c) must be met and an unfavourable finding in relation to either (a) or (b) forecloses the possibility of a favourable outcome.[3] An applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 if they satisfy subclauses (a) and (b), in light of 'any other relevant matter' pursuant to subcl (c).[4]
[2] Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [32] (Jagot, Bromwich and Lee JJ); Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 106, [14]–[15] (Allsop CJ); Vidiyala v Minister for Home Affairs [2018] FCA 1973 [28].
[3] Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [32] (Jagot, Bromwich and Lee JJ).
[4] Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [35] (Jagot, Bromwich and Lee JJ).
CONSIDERATION, FINDINGS AND REASONS
As already observed, the issue in the present case is whether the applicant satisfies cl 500.212, in other words, whether they are a genuine applicant for entry and stay as a student.
Claims and evidence
The applicant was granted a visitor visa in April 2015. Between April 2015 and first arrived in Australia in May 2015 as the holder of a visitor visa. The applicant travelled to Australia on five separate occasions between May 2015 and June 2023 on nine separate occasions and on successive visitor visas. The duration of the applicant's visits on each occasion were short, rarely exceeding about two weeks.
The applicant applied for the student visa in July 2023. Her visa application noted that she was married and identified as her husband as a non-accompanying member of the family unit. The application also noted that the applicant had a child born in 1997 who was living in Australia. The applicant's evidence at the hearing was that her son came to Australia in 2016 to study.
The applicant's SVI Response indicated that she owned a property valued at approximately $1,000,000 in Waterloo, NSW. The applicant's evidence was that she purchased that property in or around 2015. The delegate also referred to the applicant having multiple Australian bank accounts, including two home loan accounts.[5]
[5] Delegate's decision, p 3.
After the applicant's application for the student visa was refused, the applicant applied for a Bridging Visa B in March 2024. Whilst holding that bridging visa B, the applicant has travelled between China and Australia.
The applicant also gave evidence regarding her business interests both in Australia and overseas. These interests included a factory and two clothing companies in China. Additionally, she had two businesses in Australia, specifically two laundry and alteration stores. She indicated that these businesses are registered under her name, and she operates them alongside her son. When I inquired about her past travel to and from Australia, she clarified that it was necessary due to her business interests in both countries, allowing her to travel between China and Australia. The evidence presented indicates that these businesses were established prior to the applicant's application for the student visa and during the time she was in Australia as the holder of a visitor visa, which did not permit her to work.[6]
[6] See, also the Surrender of Lease document provided on 6 March 2025 which refers to a lease dated 4 June 2021.
When asked about her plans when her course finishes in September 2025, the applicant's evidence was that she would continue to operate her business and travel between China and Australia for that purpose. When I asked the applicant whether she had given any thought to what sort of visa she would apply for, her evidence was that she would maybe apply for a tourist visa or something, but she was not too sure.
The applicant also explained why she had enrolled in a second Diploma of Business despite having already completed that course. She explained that she missed many of the classes for her Diploma of Business because she had to return to China and wanted to consolidate her learning. When I asked the applicant why she needed to consolidate her learning, given that she appeared to have passed the Diploma of Business despite her absences, the applicant claimed that she also wanted to learn more English and gain more knowledge.
Based on the evidence before me, I raised with the applicant that she may appear to be using the student visa process to maintain ongoing residence in Australia. The applicant responded that she wanted to study to learn more.
Does the applicant intend genuinely to stay in Australia temporarily: subcl 500.212(a)
Having considered the applicant's circumstances in both China and Australia, their immigration history, and the other materials before me, I am prepared to accept that the applicant intends to stay in Australia temporarily. I am satisfied that the applicant seeks to travel between Australia and China for business reasons. I place significant emphasis on the applicant's business interests in China, which I accept she has, and the presence of the applicant's father in China, whom I accept is unwell and the applicant provides some care for. I am prepared to accept that the applicant satisfies subcl 500.212(a).
Does the applicant intent to comply with the conditions subject to which the visa is granted: subcl 500.212(b)
In considering this subclause, I take into account the applicant's history of compliance with visa conditions and the applicant's stated intention in relation to compliance.
Having raised the applicant's non-compliance with the 'no work' condition attached to her student visa as being relevant to my determination of whether the applicant is a genuine applicant for entry and stay, the applicant claimed that she intended to sell her Australian businesses. Additionally, in submissions provided following the hearing the applicant submitted:
Firstly, I acknowledge that I have made some mistakes over the past year, including engaging in certain business activities while holding a student visa. I fully understand that this was inappropriate, and I sincerely regret my actions. I promise you that I have learned from this experience and will follow the visa conditions from now on.
Secondly, I would like to provide evidence that my property in Australia is currently in the process of being sold. The relevant documents are attached for your reference. Similarly, my business in Australia is also in the process of being transferred, and I have included supporting documentation regarding this as well.
Additionally, I have attached proof of my company in China. My company in China, along with my father’s current situation, are my top priorities. This is why I have ultimately decided to return to China in the future.
Regarding the concern about my enrollment in a second Diploma of Business program, I would like to clarify that my initial choice of institution did not meet my expectations in terms of teaching quality. I felt that my English and business skills did not improve to a satisfactory level, which is why I chose to enroll in another program to strengthen these essential skills.
In summary, I have taken the necessary steps to sell my property and transfer my business in Australia. My primary goal now is to complete my remaining studies in Australia, as improving my English and business knowledge will significantly benefit my company’s future overseas expansion plans. Once I have completed my studies, I will return to China to continue managing my business and take care of my father.
I have considered these matters. In relation to them, I make the following observations. The applicant claims her business is in the process of being 'transferred'. However, she does not indicate who the business is being 'transferred' to. In support of this claim, the applicant has provided a 'surrender of lease' document; however, I note that her evidence at the hearing was that she had two stores. It is unclear whether this surrender relates to one or both stores. Moreover, the provided document is unsigned and undated. The consideration for the surrender of the lease is unlisted, and there is no evidence that this document has been provided to or accepted by the lessor. Additionally, there is no information about the likely timeframe for the business transfer. I infer that, even accepting the applicant's claims about the transfer for present purposes, she will continue to work in her businesses until they are transferred.
The applicant has also provided a 'Sales Inspection Report and Exclusive Agency Agreement' between herself and 'Marble Real Estate' which has been signed by the applicant and agent and is dated 20 February 2025. I note that despite entering a contract to apparently sell her property only a week earlier, the applicant did not refer to the proposed sale of that property during the hearing in her oral evidence. That said, I am prepared to accept that the property is listed with an agent, but I am not able to be satisfied that the property will be sold and am only prepared to accept that the property may be sold.
I am satisfied that the applicant's past conduct regarding her visa conditions is a relevant factor in assessing her intentions regarding future conduct. I have already referred above to the applicant's claims about the 'transfer' of her business and the sale of her home.
I have considered that the applicant seems to suggest that she was unaware of the condition of her visa and that she thought that she could work, suggesting, as she did, that the agent caused this. I have considered this but am not persuaded. The applicant has a lengthy history of travel to and from Australia. It is ultimately her responsibility to understand and comply with the conditions attached to her visa. Her failure to comply with visa conditions is not limited to the period since she applied for the student visa but rather pre-dates this, and every visa held by the applicant has been subject to condition 8101 (no work), which was imposed either on a discretionary basis or a mandatory basis.
Whilst the applicant submits that she has now learned from this experience and will 'follow the visa conditions from now on', I am not satisfied that she is genuine when she says this. I cannot overlook the applicant's history of failing to comply with the 'no work' condition to which her visa was subject, including her evidence and concession about having worked whilst previously travelling to Australia as the holder of a visitor visa which also did not entitle her to work. I do not accept that claimed ignorance of conditions is an excuse or adequate explanation.
Having considered the material and submissions before me and considering all the circumstances, I cannot be satisfied that the applicant intends to comply with condition 8101 (no work) in the future, which would be attached to any student visa that would be granted to her.
I am not satisfied that the applicant intends to comply with the conditions subject to which the visa is or would be granted, as required by subcl 500.212(b). I am not satisfied that the applicant is a genuine applicant for entry and stay as a student because she intends to comply with any conditions subject to which the visa is granted. Indeed, I am not satisfied that she would comply.
Conclusion
I have determined that the applicant does not satisfy cl 500.212(b) and accordingly does not satisfy cl 500.212. In those circumstances, the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision under review.
Date of hearing:
27 February 2025
Representative for the Applicant:
Not applicable
Attachment - Direction No 108
Part 1 - Preliminary
…
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.
…
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.
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