Wang (Migration)

[2022] AATA 880

Wang (Migration) [2022] AATA 880 (22 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chunjie Wang

CASE NUMBER:  2114073

HOME AFFAIRS REFERENCE(S):          BCC2020/2848103

MEMBER:Mark Bishop

DATE:22 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 22 March 2022 at 2:31pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – no evidence of course progress – family ties in the home country – employment in Australia – value of course to future employment – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359, 362, 379, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212

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 28 September 2021 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 18 December 2020. 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).

4. On 2 December 2021 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 22 March 2022. The Tribunal advised the applicant the hearing would be contacted by mobile phone. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. On 18 March 2022 the Tribunal sent system generated SMS reminder notices to the applicant’s phone number.

5. It is the practice of the Tribunal to conduct “preliminaries” prior to the commencement of the hearing. These preliminaries are a courtesy to review applicants and basically explain the process of the hearing which will commence at a later time. These “preliminaries” are not part of the hearing and the presiding member does not attend during this process as it is conducted by administrative staff of the Tribunal. The Tribunal contacted the applicant on numerous occasions immediately prior to 1.30pm on the day of the scheduled review hearing. There was no response to any of these phone calls. The Tribunal also attempted to contact the applicant by phone to commence the hearing and the applicant did not respond to the phone call (for full detail see Case Note number 5). Case Note number 5 sets out the following: “Tele hearing on 23/03/22 - Called RA at 1:17, 1:19, 1:24, 1:25 and 1:35pm. All calls went to unidentified VM except one call at 1:25 was picked up but they said nothing and then they hung up. Hearing announced as No Show at 1:39pm.”

6. The applicant did not appear before the Tribunal.

7. The review applicant did not appear before the Tribunal for the phone hearing on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) and the invitation has not been returned to sender. The Tribunal gave consideration to the many attempts by the Tribunal to contact the applicant on the day of the hearing, the fact that  “all calls went to unidentified VM except one call at 1:25 was picked up but they said nothing and then they hung up” (see Case Note number 5), the sending of reminder notices to the applicant in the days prior to the hearing and the more recent correspondence from the Tribunal dated 3 March 2022 seeking information that the applicant chose to ignore. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. The applicant provided a copy of the decision record to the Tribunal. The applicant was assisted in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 GTE.

    Genuine applicant for entry and stay as a student (cl 500.212)

11. 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?

12. 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.

13. 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.

14. The applicant provided a copy of the decision record to the Tribunal. The Tribunal has considered this decision record. It covers in detail relevant aspects of Ministerial Direction number 69 (MD69). Despite brief later submissions to the Tribunal the applicant did not challenge the reasoning or findings of the delegate in any way. The applicant failed to provide any information to the Tribunal that might point to errors or invalid conclusions on the part of the delegate. The Tribunal has reviewed the delegate’s findings and finds there is nothing on the Departmental or Tribunal files that suggests the delegate was in error in any way. The Tribunal gives considerable weight to the findings of the delegate.

15. The applicant provided a copy of a GTE Statement to the Department (Doc ID number 8979229) that addressed aspects of Ministerial Direction number 69 (MD69): skills learnt in cooking, he wishes to explore management, a desire to open his own restaurant, he had learned about business and management in his home country, he researched the restaurant market in his home town, he transferred to Leadership & Management, he appreciates the high quality of vocational education in Australia, he set out the attractions of his chosen education provider inclusive of the packaging of courses and his desire to progress to Advanced Diploma level.

16. He provided a copy of a current COE in an Advanced Diploma of Business concluding 10 July 2022.

17. He provided a bare response to a s.359(2) Request for Information. It was essentially a non-response.

18. He completed high school in China. He worked as a chef in China from 2002 until 2015. He failed to provide detail as to travel. His prior student visa expired in December 2020. He completed a Diploma of Leadership & Management in October 2020. He did not provide detail of any course enrolment from October 2020 until September 2021. He provided essentially 1 line responses to requests for information as to current and proposed courses of study, work & expenses in Australia. He failed to provide any information as to community ties in the home country or Australia. H failed to provide any information as to assets.

19. Accordingly on 3 March 2022 the Tribunal wrote to the applicant and sought further information as to the following:

    ·Academic transcripts and Certificates of Graduation or Certificate of Completion relating to enrolment in a Diploma of Leadership and Management.

    ·Receipts for payments for all course fees relating to enrolment in courses relating to a Diploma of Leadership and Management and Advanced Diploma of Business or copy of course payment plan for this later course.

    ·Statement of Attendance and copy of academic progress via unit name from the relevant education provider on letterhead relating to enrolment in Advanced Diploma of Business.

20. The applicant did not respond to this request for information as to completion or courses of study, receipts for payment of course fees and statements of attendance and academic progress relating to his current enrolment.

21. The applicant did not appear before the Tribunal.

22. The applicant has provided little information to the Tribunal that was not before the delegate. The applicant declined to provide much information relevant to MD69. The applicant did not respond to a request to provide information relating to enrolment, course progress, tuition fees payment or course attendance.

23. Whilst the applicant has provided a copy of a current COE this COE discloses only minimal payment of tuition fees.

24. Whilst the applicant declared he complete a Diploma level course in Hospitality Management in October 2020 he did not provide a copy of a Certificate of Graduation in this course or any other information that might confirm progress or completion in this course or any subsequent courses.

25. An applicant for a Student Visa is expected to progress in his studies and show progress if requested. The applicant has failed to demonstrate any course progress.

26. The applicant provided to the Department a graduation certificate evidencing completion of a Business Administration course in 2012. The delegate made a finding the applicant has not provided evidence of any investigation of further study options in the home country. The applicant did not challenge this finding. The Tribunal acknowledges that the applicant has personal ties in the home country in the form of his wife and child. He last saw them in October 2019. In this situation, the spouse and child can apply as a subsequent entrant to join a student visa holder in Australia at a later date. The Tribunal is therefore not satisfied the applicant has been able to demonstrate the extent of personal or economic ties that would serve as a significant incentive to return home on completion of the proposed studies in Australia.

27. The Tribunal has have also considered the applicant’s likely earning potential in Australia and the home country. General financial circumstances, such as income level, savings, assets and investments can provide some indication of the applicant’s financial incentives to return to their home country. The applicant has provided little evidence of their current financial circumstances. The applicant did advise the Tribunal he might earn “750 per week”. He also advised the Tribunal he earned approximately AUD8,500 as a delivery man for EASI. Based on the information before me, the Tribunal is not satisfied the financial incentives to return home outweigh the financial incentives to remain in Australia.

28. Th applicant provided a copy of a current COE in an Advanced Diploma in Business. As outlined above he provided little other information as to course enrolment or course progress (if any). The applicant has not provided evidence of any completed study since their arrival in Australia. This raises concerns as this does not align with the applicant’s claims of being a genuine student. Given the applicant has maintained residence in Australia as the holder of a Student visa, the Tribunal finds the applicant has a reasonable knowledge of living costs and conditions in Australia and an understanding of the visa conditions that may apply to their visa. The Tribunal  acknowledges the applicant’s GTE statement as summarised above at paragraph 15 and the reasons set out in it for choosing Australia as the preferred study destination. The applicant provided information on the chosen provider in Australia and on the course(s) he proposed to undertake. However, the Tribunal finds that the applicant has not provided any evidence of independent research undertaken in regards to other study destinations or education providers inside and outside of Australia. Therefore, the Tribunal is  not satisfied the applicant conducted sufficient research into education options available in and outside Australia which would be expected of a genuine student.

29. The applicant advised the Tribunal he would return home post July 2022 after completion of his Advanced Diploma. This qualification might be relevant to the opening of a restaurant in his hometown as advised to the Department. However, the applicant has not provided information detailing their expected business operations, expected remuneration from doing so or how it will be funded. The applicant has not provided a copy of a business plan for this proposed enterprise. As such, the applicant has failed to demonstrate how either course of study course will significantly improve his future employment and remuneration. Considering the time and effort the applicant has or will invest to pursue these qualifications that he advises  will enable him to achieve this goal, the Tribunal does not consider it unreasonable to expect the applicant to provide this or similar information and evidence to substantiate any claims made. Certainly the lack of information provided to the Tribunal and the paucity of content in the s.359(2) response suggest the applicant has little hard evidence to provide. While their employment or business opportunities may improve due to completion of these two courses, the applicant has not demonstrated a clear and substantial improvement arising from the proposed study that will outweigh the significant time and monetary commitment these courses require.

30. The Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to his future.

31. The delegate made the following findings as to the applicant’s immigration history:

    ·“I have given regard to the applicant’s immigration history. The applicant has declared they have previously held or currently hold a Student visa and have declared no travel. I have considered all information the applicant has provided regarding their immigration history, and find that no adverse information has been presented in relation to this criterion”.

32. The Tribunal finds the applicant lawfully entered Australia and there is no evidence of breach of conditions attached to relevant visas.

    Conclusion on cl 500.212

33. 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.

34. 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

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

    Mark Bishop
    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;

    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.

    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.