Wu (Migration)

[2022] AATA 4256

Wu (Migration) [2022] AATA 4256 (3 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cancheng  Wu

CASE NUMBER:  2119704

HOME AFFAIRS REFERENCE(S):          BCC2021/2053660

MEMBER:Warren Stooke AM

DATE:3 October 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 3 October 2022 at 12:41pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa––applicant failed to provide the information within the prescribed period – applicant was not a genuine applicant for entry and stay as a student –– genuine temporary entrant criterion not met–use the student migration program to maintain ongoing residence – applicant has been resident in Australia for an extended period of time without participation in Study – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.212

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 Home Affairs on 1 December 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 28 October 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant has not demonstrated clearly that obtaining further qualifications abroad is likely to increase their career prospects and remuneration on their return from study and the delegate had concerns as to the applicant’s incentive to return to their home country on completion of their proposed studies in Australia. The delegate acknowledge that the applicant has personal ties in their home country in the form of one parent. The applicant has not declared they have employment to return to, or that they have property in their name overseas. The applicant has been unable to demonstrate economic ties to their home country which diminishes their incentive to return upon completion of their studies. The delegate was not satisfied the applicant has been able to demonstrate, on balance, ties that would serve as a significant incentive to return to their home country.

4. On 25 July 2022 the Tribunal wrote to the review applicant pursuant to s 359(2) of the Act, inviting the review applicant to provide the following information in writing.

   “As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

   ·               enrolled in a registered course of study; and

   ·               a genuine applicant for entry and stay as a student.

   Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below.”

5. The invitation was sent to the last address provided in connection with the review and advised that, if information was not provided in writing by 8 August 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. On 26 August 2022, the Tribunal wrote to the review applicant pursuant to s 359A of the Act, and provided the applicant with a copy of the PRISMS record for comment and invited the review applicant to provide documentary evidence that the applicant is enrolled in a course of study with a registered organisation.

7. The review applicant did not provide the information requested within the period allowed. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 is a genuine temporary entrant for the purposes of study.

10. The applicant is a 25 year old from China, who was granted a Bridging Visa A on 28 October 2021 that has condition 8105 (work rights limitation) that commenced on 29 October 2021 upon the expiry of the then current student visa.

11. The applicant provided the Department with evidence of health insurance from 29 November 2021 until the expiration on 1 June 2022.

12. The applicant’s PRISMS record dated 18 August 2022, that was provided to the applicant in the Tribunal’s s359A correspondence of 26 August 2022, identified that the applicant has completed the following courses of study, whilst the holder of Student visas:

    a.General English (Beginner to Advanced) from 26 November 2018 to 23 June 2019 – completed;

13. The applicant’s PRISMS record identified the following courses of study have been cancelled:

    a.   Certificate IV in Leadership and Management 22 July 2019 – Cancelled;

    b.   General English (Beginner to Advanced) from 26 August 2019 to 22 March 2020 – Cancelled;

    c.   Certificate III in Business from 11 November 2019 to 8 November 2020 – Cancelled;

    d.   Certificate IV in Leadership and Management on 11 May 2020 – Cancelled;

    e.   Diploma of Leadership and Management 31 August 2020 to 29 August 2021 – Cancelled;

    f.    Diploma of Leadership and Management from 7 June 2021 to 5 June 2022 – Cancelled;

    g.   Advanced Diploma of Business from 17 August 2021 to 12 February 2023 – Cancelled;

    h.   Graduate Diploma of Management (Learning) from 15 March 2023 to 25 August 2024 – Cancelled.

14. The applicant provided the Tribunal with confirmations of enrolment on 16 September 2022 of enrolment in the following courses of study:

    a.   Advanced Diploma of Business at Flinders College from 16 September 2022 to 15 March 2024;

    b.   Graduate Diploma of Management (Learning) from 15 April 2024 to 28 September 2025.

15. The applicant stated in his application that he completed an Automotive Mechanical course in China.

16. The applicant stated that he has worked as a waiter in Australia from 1 July 2015 to 1 November 2018 and that when he returns to China he will look for a business job.

17. The applicant stated in his application that he has parents and a step brother in China.

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

18. 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?

19. 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.

20. 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.

21. The Tribunal has considered the written evidence, provided by the applicant, in the context of Direction 69 and finds that the applicant is not a genuine temporary entrant for the following reasons:

    a.The applicant last completed a course of study in General English (Beginner to Advanced) from 26 November 2018 to 23 June 2019 and has not completed any course of study since this period. As such, the applicant has remained onshore whilst the holder of Student and Bridging visa for a period of more than 3 years without completing any course of study. The Tribunal finds that the applicant has been using the Student study stream of visa to maintain residency and lifestyle in Australia;

    b.The applicant has completed a course in General English and has not provided any Genuine Temporary Entrant statement to the Tribunal to explain the purpose of his intended studies and the applicant only obtained Confirmations of Enrolment after the Tribunal requested information and comment from the applicant in the s359(2) correspondence of 25 July 2022 and the s359A correspondence of 26 August 2022, which were obtained and advised to the Tribunal on 16 September 2022, without evidence to support the purpose of the studies. The Tribunal finds that after a lapse of more than 4 years without participation to conclude studies, it appears that the applicant has sought Confirmations of Enrolment to maintain a Student visa without a genuine intention to participate in study. In this regard, it is noted that the fees pertaining to the courses of study have not been paid in full;

    c.The applicant stated in his application that he has worked as a waiter and without current work rights since the provision of his current visa on 29 October 2021, there is no evidence as to how the applicant intends to support himself given that he has not provided a response to the required information identified in the s359(2) correspondence of 25 July 2022, including a GTE statement;

    d.The Tribunal is satisfied that the applicant has been resident in Australia for an extended period of time without participation in Study and there is no evidence before the Tribunal to support an intention to complete the courses advised before returning to China. The Tribunal finds that whilst the applicant has family in China the Tribunal considers  that the applicant has demonstrated strong ties to maintaining Australian residency relative to returning to China.

22. On balance, the Tribunal considers that the applicant has stronger ties to Australia through residency, work and lifestyle than with his family and future prospects in China given that he has not provided evidence of the purpose of the intended study or how such studies will improve his career prospects in China. As such, the Tribunal finds that the applicant is using the student visa stream to maintain a lifestyle and residency in Australia.

23. Further, there is no evidence before the Tribunal that would suggest that the applicant has any reason not to return to China and that to the contrary there is every indication that the applicant has developed a desire to remain in Australia for the purposes of residency and the lifestyle. As such, the Tribunal is satisfied upon the review of the criteria pertaining to Direction 69 that there is no further material before the Tribunal to be considered, that would mitigate a finding that the applicant is not a temporary genuine entrant for stay and study in Australia.

24. Based on what is evidenced of the applicant’s circumstances overall, in the absence of any other relevant information, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student. As such, the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

25. 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(a).

26. 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.

27. On the basis that the primary applicant has not satisfied the requirements for the grant of a Student (subclass 500) visa, it follows that the secondary applicant is not a member of a family unit that has satisfied the criteria for the grant of a visa.

    DECISION

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

    Warren Stooke AM

    
    
    

    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.