Yang (Migration)

[2022] AATA 779

Yang (Migration) [2022] AATA 779 (10 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shao-fu Yang

REPRESENTATIVE:  Ms Jie Liu (MARN: 1576581)

CASE NUMBER:  2113386

HOME AFFAIRS REFERENCE(S):          BCC2020/383079

MEMBER:Peter Booth

DATE:10 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 10 March 2022 at 8:07am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – enrolment in a registered course – lengthy stay in Australia – applicant did not commence several courses – limited academic progress – employment in Australia – applicant’s limited standard of English – course benefit to future career – maintaining ongoing residence in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 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 27 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 11 February 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) because the applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 16 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was assisted in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

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

8. 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?

9. 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.

10. 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.

11. The applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 27 September 2021 refusing his application for a student visa. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.

12.   The applicant was asked to describe his current enrolment including commencement and completion dates. The applicant said “commence date is 6 September 21 the finish date is 2 September 22”. When asked to state the name of the course he replied “Diploma of Business”.

13.   The applicant had produced a confirmation of enrolment document to the Tribunal in respect of such a course. The Tribunal accepts that he is enrolled in the course described in the confirmation of enrolment.

14.   The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2) of the Act. In summary the information provided by the applicant was as follows.

15.   The applicant completed a Bachelor of Science degree in Taiwan between September 2002 and June 2008. He was employed as a “personal trainer and swimming coach” between 2004 and 2014 from which he derived an annual income of AU$21,600.

16.   The applicant arrived in Australia on 10 January 2013 and since that time has returned to Taiwan on five occasions. The occasions were as follows: July 2014 for seven days, April 2016 for one and a half months, October 2016 for 10 days, August 2017 for one and a half months and May 2019 for five and a half months. The applicant also travelled from Australia to other countries for vacations. He travelled to Japan in January 2019 for nine days and to Singapore in April 2016 for three days.

1. The application for the student visa in question was made on 11 February 2020.

2. The applicant stated his visa history in Australia to be as follows: he held a “visitor visa” but could not recall the dates, a working holiday visa between 16 January 2014 and 16 January 2015, another working holiday visa between 12 November 2014 and 8 April 2016 (presumably the date 12 November 2014 is incorrect and should be 12 November 2015), a student visa between 13 May 2016 and 25 December 2016 and a student visa between 16 January 2017 and 1 June 2018, which are both described as “student visa (dependent)”, and another student visa between 30 June 2018 and 27 February 2022. He also stated that he had applied for a student visa on 8 November 2019 and again on 11 February 2020. Whether these two applications are part of the foregoing visa history or are separate applications is not clear.

3. The applicant also stated that he had been refused a visa and that a visa had been cancelled. The details he provided were as follows:

   Australia, Student Visa, Application date: 08/11/2019, Date of Refusal: 12/12/2019; Reason GTE Australia, Student Visa, Application date: 11/02/2020, Date of Refusal: 27/09/2021 Reason: GTE, Australia, Student Visa (Dependent), Application date: xx/xx/xxxx, Date of Cancellation: 29/05/2020 (approximately in May 2018 I cannot remember the exact date)

4. The applicant stated his study history in Australia to be as follows: he enrolled in a Diploma of International Business on 31 October 2019 but did not commence it, he enrolled in a Certificate IV in International Trade on 31 October 2019 but did not commence it, he enrolled in a Certificate IV in New Small Business on 4 September 2017 but did not commence it, he completed a general English course between 13 June 2016 and 1 April 2018, he completed a general English course between 4 November 2019 and 27 March 2020, he completed a general English course between 25 May 2020 and 14 August 2020, he completed a Certificate IV in Business between 7 September 2020 and 3 September 2021 and was “studying now” a Diploma of Business which commenced on 6 September 2021 and is expected to be completed on 2 September 2022.

5. The applicant stated that he was employed as a “casual worker – labour” from May 2014 to date from which he derives an annual salary of AU$30,000.

6. The applicant stated that one “parent” and sister reside in Taiwan.

7. The applicant stated that he owned assets in Taiwan comprising property: “I will inherit the property currently owned by my mother”.

8. As to his future employment plans the applicant stated: “I have been given a job offer to be employed as a store manager to establish a new soymilk store in Taiwan. I will also have business partnership opportunity in this business. Please refer to my GTE statement for more details.”

9. As to his expected future remuneration the applicant stated: “I am offered an annual basic salary of 300,000AU equivalently as the store manager. I will also get bonus depending on the business performance and even then when I become the business partner.”

10. The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary, were as follows.

11. The applicant confirmed that he arrived in Australia on 10 January 2013 for the first time. When asked to state the visa he held at that time he said “came here on tourist visa for sightseeing”. He was asked how long he stayed on that occasion. He replied “about five days”. When asked when he next entered Australia he said “working holiday visa April 2014”.

12. The Tribunal observed that he had been refused a student visa on 8 November 2019 and invited him to comment. He replied “application was refused while officer believe I don’t have a genuine reason for student visa but study of business course has always been part of plan”.

13. The Tribunal observed that his application for a student visa had been refused on 11 February 2020 and invited him to comment. He said “I have been studying in the course including English and business the refusal may be based on officer made a big fuss on weaknesses rather than focus on career plan is already provided documents”.

14. The Tribunal observed that the applicant’s student visa had been cancelled in May 2020 and invited him to comment. He said “on May 2020 I was on visit in a company of girlfriend when she study, cancellation was based on relationship has gone broken”.

15. The applicant was invited to provide a concise table of his visa history subsequent to the hearing. He said that he would do so.

16. The applicant was invited to state the dates of his first student visa. He replied “13 May 2016 until 1 June 2018”. He was asked what he studied between those dates. He replied “I study general English during that period”. He was asked whether that was the only course which he studied during that period. He said “yes”. He was asked to state the course duration. He said “half-year”. He was asked what he had done for the remaining two years and three months. He said “I had been study general English from 13 June 2016 until 1 April 2018”. He was asked whether it took him two years to complete the general English course. He said “yes”. He then added “during that two-year timeline enrol in small business Certificate IV then I felt English not good enough therefore I enrol in general English course again”.

17. The applicant was asked to provide a concise statement of all courses which he had enrolled in, when they started, when they finished and whether he was excluded from them or not. He was invited to do so in the form of a signed statement after the hearing had concluded. He said that he would do so.

18. The applicant confirmed that he held a dependent student visa between 30 June 2018 and 27 February 2022. He was asked when his relationship with the primary visa holder had broken down. He said “May 2019, no May 2020”. He was asked whether he studied between the period 30 June 2018 until May 2020. He said “yes November 2019 I started apply for student visa”. He was asked what he studied. He said “general English”. He was invited to state the dates. He said “4 November 2019 until 27 March 2020”. He was asked whether that was the only course that he studied during that period. He said “yes, but no also study general English from 25 April 2020 until 14 August 2020”. The Tribunal observed that those dates were outside the period stated in the question. The applicant was unresponsive.

19. The applicant was asked why he returned to study in November 2019 having not studied since June 2018. He said “the reason for me discontinue study 2018 based on student visa dependent visa my former girlfriend wanted to study childcare so I discontinue business study course and back to 2019 I wanted to complete my business course, therefore [enrolled in] business and English course”.

20. He was asked why he did not return to Taiwan when the dependent student visa was cancelled. He said “because my initiative to study business that was original plan, so not much association until relationship broke down, not very related with relationship anyhow and I formal broke up time is December 19, previously I say cancel time was made, indicating visa cancelled in May”. The Tribunal observed that the applicant had not answered the question and invited him to do so. He replied “reason for me not return to Taiwan was because my initiative to come back to here to study business”.

21. The Tribunal observed that the applicant had enrolled in a Certificate IV in New Small Business in September 2017 but did not commence it. He was invited to comment. He replied “I enrolled in combination with business, but schools say English was not adequate enough, so I discontinue small business, my initial plan to study business since 2016”.

22. The Tribunal observed that the applicant had enrolled in a Diploma of International Business in October 2019 but did not commence it. He was invited to comment. He replied “because school didn’t start that course, initially enrolling course but got notice from school indicating course cannot be run”. He was asked whether he had any proof of his assertion. He replied “yes I could ask for school”.

23. The Tribunal observed that the applicant had enrolled in a Certificate IV in International Trade in October 2019 but did not commence it. When invited to comment he replied “not my intention not to complete course based on cancellation of school”. He was asked whether he had any proof of that assertion. He said “I could ask for it”; he then added “I received a call from agent tell me school no longer run the course”.

24. He was asked whether he was currently employed and if so to state his role and income. He said “currently employed working on construction site, annual income around $30,000, my role in that job is labourer”.

25. He was asked to state his employment intentions when he returns to Taiwan. He said “current plan to open soymilk business with a friend, I have been talking about a business proposal with a friend, when I returned to Taiwan 2019 I met this manager who run that soymilk business, we said after I complete my business study in Australia I can open store or develop business overseas, this manager has always had an idea or plan to expand business overseas, I have experience in Australia, I have done some business plan and business investigation and marketing”.

26. He was asked when this business plan had been prepared. He said “after I returned to Taiwan I had discussion with him”. When the question was repeated he said “before AAT hearing”. When the question was repeated again he said “cannot understand”. The question was repeated once more and this time he replied “during this appeal”. The Tribunal informed the applicant that it expected him to be able to state when the business plan had been prepared. He said “about May or June 21”. He was asked when he met the person he described as the manager. He said “when returned to Taiwan in 2019”. He was asked how many times he has met this person since then. He said “when I was in 2019 that was half a year, I met him five or six time, when I returned to Australia from time to time would discuss it, the manager is a female”. He was asked whether he had a job offer from this person. He replied “yes attended that”. He was invited to state the job offer date and he said “13 November 2021”. The Tribunal asked the applicant why he had prepared a business plan in May or June 2021 when he had no offer from the unidentified person. He said “I had offer on 1 February 2020”. He was asked where that offer was located. He said “it was initially uploaded when visa application lodged”. He was invited to provide that document to the Tribunal after the hearing. He agreed to do so.

27. When invited to add anything further to his evidence the applicant said “since I have already completed Certificate IV Business now study Diploma of Business I am genuine student, course will be finished in September, which will take half a year, I have already completed 4/7 units I wish to complete remaining”.

28. The applicant’s representative was invited to make submissions to the Tribunal. She said “I have provided my submissions”. She said that she relied on the written submissions which had been filed prior to the hearing.

29. Two written submissions were provided to the Tribunal. The representative did not refer to either. However, they have been taken into account by the Tribunal. The Tribunal makes several observations in relation to each. The first submission is dated 13 July 2020. Apparently this was a submission made to the Department. The submission has no page or paragraph numbers. The submission states that the applicant was granted a dependent student visa which was due to expire on 27 February 2022. However the relationship broke down in December 2019. The Tribunal observed that the applicant stated that the relationship had broken down in May 2020, but subsequently stated that it was December 2019. The first submission was otherwise broadly consistent with the applicant’s oral evidence. The second written submission is undated and also without page or paragraph numbers. The second submission is broadly consistent with the applicant’s evidence at the hearing.

30. Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to those documents. A certificate of life insurance was produced. Presumably it is produced to demonstrate that the applicant has some assets in his name in Taiwan. The Tribunal accepts that such a policy exists and it is in the applicant’s name but it is given little weight. The policy is in the nature of the promise to pay certain amounts upon certain conditions being satisfied including death and/or disability. Satisfaction of the conditions will result in payment of certain amounts. The applicant will be paid regardless of his location, whether in Taiwan or not. It is not, in the Tribunal’s view, a relevant asset in Taiwan. The business plan was produced. It is in respect of the soymilk business. It is undated. The author is not identified. The sources of statistical, market and financial information are not stated. It is aspirational in nature and has a promotional marketing look and feel. It is given little weight. Next a document titled “Dousang whole soymilk job offer” was produced. It is dated 13 November 2021. It appears to be signed. This very brief document purports to offer the applicant the role as “store manager”, “when he finishes the business-related course in Australia”. The responsibilities include “setting up branches, advertising, marketing and developing overseas markets”. The employment is stated to commence “in early 2023”. No salary or financial terms are stated. As at November 2021 the applicant had just completed a Certificate IV in Business and had commenced a Diploma in Business on 6 September 2021. Further the applicant had no experience in conducting a beverage business whether in Taiwan or elsewhere. The applicant had no experience in opening a new business in Taiwan or at all. In the Tribunal’s view it was most curious that the proprietor of a successful business in one country would entrust the opening of a branch of that business in another country to a person in the applicant’s circumstances. The Tribunal notes that the proprietor of the soymilk business was not called to give evidence. The job offer is given no weight.

1. Prior to the hearing the applicant provided a statement in support of his application for review. The statement is unsigned, undated and without page numbers or paragraph numbers. The statement was not referred to by the applicant during the course of giving evidence at the hearing. Nonetheless, it has been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to the statement. The applicant does not assert that any courses were uncompleted by him due to the closure of the college or the discontinuance of the course by the college. The applicant also asserts that unfavourable visa outcomes were as a result of previous agent’s failures. No documents are produced to support these assertions.

2. Subsequent to the hearing a large number of documents were provided by the applicant’s representative. The Tribunal has taken them into account and given them appropriate weight. The Tribunal makes observations in relation to several of the documents. First, by letter dated 18 February 2022 the applicant’s representative made several further submissions. They are largely a rehearsal of early contentions. One aspect of the submissions is the reliance on the applicant’s poor standard of English and attempts to become competent as a reason why his extensive poor study history should be viewed positively. It is reasonable to expect the student intending to study to be able to adequately comprehend the language in which the course is taught. The applicant’s failure to obtain a satisfactory standard of English prior to arriving in fact undermines his assertion that he was or is a genuine student. This is given some weight. Secondly, the submissions assert the first job offer was dated 1 February 2020 and was provided with the visa application. A copy of the document was provided by the representative. It is in the following terms: “Dousang whole soymilk will hire [the applicant] as the store manager. His main responsibilities including developing overseas markets, setting up branches and advertising marketing. Employment will be starting from his returning to China [sic] in 2022”. It is trite to observe that there are no terms and conditions of the employment offer as one would expect, there is no evidence that it was accepted by the applicant and as at 1 February 2020 the applicant had not commenced any studies in business. For the reasons discussed above in respect of the second, slightly more detailed offer, the Tribunal gives this document no weight.

3. Subsequent to the hearing summaries of the applicant’s study and visa histories were provided as follows.

4. The applicant’s visa history:

No.	Visa Type	Visa Status	Case Number	Date of Application	Date of Decision	Visa Expiry Date	Note
1	Visitor Visa	Granted	Mr. Yang couldn’t remember much details as application was lodged by a travel agency in Taiwan in 2012/2				visited Australia for 5 days
2	Working Holiday Visa (1st )	Granted	VGN: 8119542447378	27/12/2013	16/01/2014	16/01/2015	held working holiday visa in Australia from April 2014 to April 2016 ( to the end of 2nd WHV)
3	Working Holiday Visa (2nd)	Granted	VGN: 2169574133334	08/11/2014	12/11/2014	08/04/2016
4	Student Visa	Granted	VGN:0079542692673	27/04/2016	13/05/2016	25/12/2016	Studied General English (pre-intermediate level) at Australia Career College
5	Student Visa	Granted	VGN:0039526636770	22/12/2016	16/01/2017	01/06/2018	Studied General English (B1 level) at Australia Career College
6	Student Visa (Dependent)	Granted/Cancelle d	VGN: 0079526603343	May-18	30/06/2018	27/02/2022	accompanying his de facto partner at-that-time to study in Australia. Their relationship broke up in December 2019, which resulted in his visa being cancelled on 29/05/2020.
7	Student Visa	Refused	TRN: EGOO6N2GBG	08/11/2019	12/12/2019	Ex-RMA forgot to lodge merit review, so she lodged another visa application (item 8) while student dependent visa was still in place (item 6)
8	Student Visa	Refused and now seek for merit review	TRN: EGOP31XQ8V	11/02/2020	27/09/2021	Studied General English (upper-intermediate level), completed Certificate IV in Business and till date 4 units of Diploma of Business

1. The applicant’s study history:

COE code	Educational institution	Name of Course	Course start date	Course end date	Enrolment Status	Change of Enrolment	Comments	Evidence
7EC18856	Australia Career College	General English （Pre-Intermediate Level）	13/06/2016	25/11/2016	Completed	This was my first study in Australia, I enrolled in 24 weeks of English course.	1.1  COE 1.2  Statement of Achievement
85F03E88	Australia Career College	General English （B1 Level)	28/11/2016	20/08/2017	Completed	I applied the General English + Certificate IV in New Small Business as a package. My General English course should be half year origianlly, but the trainer of Small Business suggested that I needed more English study to meet the English level to start. So I was changed back to learn more General English course.	2.1  COE 2.2  Statement of Achievement
867E1086	Australia Career College	Certificate IV in New Small Business	04/09/2017	01/04/2018	Never Started as college suggested more English study
92EA1215	Australia Career College	General English （B1 Level)	16/10/2017	01/04/2018	Completed
B051B355	International House	General English （Intermediate）	04/11/2019	27/03/2020	Completed	I want to resume my plan to learn business subjects to enhance my career oportunity. Plus studying at ACC has not greatly improved my English, so I moved to study at IH. I enrolled in the package of General English, Certificate IV in International Trade and Diploma of International Business. There were few holiday breaks during this study period, so college exntend the study to May 2020. Later, I was told due to low numbers for the International Trade and Intenrational business application, the college decided not to open these courses. I was offered to change to Certificate IV in Business and Diploma of Business.	3.1  COE 3.2  Certifiate of Completion ( 20 weeks to May 2020 ) 3.3  Confirmation of Enrolment proving holiday break. 3.4  The notification email that the college sent to me they decided not open the course 3.5  The notification email that the college sent to me they suggested me to study more English Course
B0C0A377	International House	Certificate IV in International Trade	18/05/2020	14/05/2021	Never Started as college ceased to offer this course
B0C0A790	International House	Diploma of International Business	17/05/2021	13/05/2022	Never Started as college ceased to offer this course
B4F41C98	International House	Certificate IV in Business	18/05/2020	14/05/2021	Deferred as college suggested more English study	4.1 COE 4. 2 PTE results not meeting the entry requirement 4.3 The notification email that the college sent to me they suggested me to study more English Course
B4F43720	International House	Diploma of Business	17/05/2021	13/05/2022	Deferred as college suggested more English study
B9037669	International House	General English （Upper Intermediate）	25/05/2020	14/08/2020	Completed	I completed the Intermediate Level of General English by March 2020. I was again advised to take more English class in the Upper Intermediate level for further improvement. Luckily I got a sufficient PTE score on 23th July, 2020. Then I was allowed to start my business course for the September intake. Till now I have completed Certificate IV in Business and 4 units of the Diploma.	5.1  COE 5.2  PTE result meeting the entry requirement 5.3  Certificate of Completion ( 32 weeks including study since Nov 2019)
B9037831	International House	Certificate IV in Business	07/09/2020	03/09/2021	Completed		6.1  COE 6.2  Certificate of Completion and Record of Results    6.3 Letter of Good Standing
B9037912	International House	Diploma of Business	06/09/2021	02/09/2022	Studying		7.1  COE 7.2  Comfirmation of competency 7.3  Letter of good standing

1. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.

   CONCLUSIONS

2. The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.

54.   Without diminishing the applicant’s evidence, it can be summarised as follows.

55.   The applicant completed a Bachelor of Science degree in Taiwan in 2008. He was employed in Taiwan as a personal trainer and swimming coach between 2004 and 2014.

56.   The applicant’s visa history is extensive and complex. He first travelled to Australia on a tourist visa and stayed for five days. He does not recall the details of the visa but apparently the application was lodged in 2012. Between 16 January 2014 and 8 April 2016 he held consecutive working holiday visas and resided in Australia. He was granted a student visa (student visa number one) between 13 May 2016 and 25 December 2016. He was granted another student visa (student visa number two) between 16 January 2017 and 1 June 2018. He was granted a student visa as a dependent (student dependent visa number one) between 30 June 2018. This visa was cancelled on 29 May 2020 as a result of the breakdown of the relationship between the applicant and the primary student visa holder. He applied for a student visa (student visa number three) on 8 November 2019. This application was refused on 12 December 2019. He applied for another student visa (student visa number four) on 11 February 2020 which was refused on 27 September 2021. The refusal of this visa is the subject of this application for review. The applicant has had both student visa refusals and cancellations. He blames failures of a previous agent or agents for this. The Tribunal does not accept this for several reasons. First, other than a vague assertion by the applicant there is no objective evidence to support it or not sufficient evidence to support it. Secondly, it is the applicant’s responsibility to ensure that he abides by the processes of the grant and maintenance of visas including attending to the procedural requirements involved in applications for review of adverse decisions. Accordingly the assertion that unfavourable visa outcomes were the fault of others is given little weight.

57.   The applicant’s study history is also extensive as follows: the applicant completed a general English course (English course number one) between 13 June 2016 and 25 November 2016. He completed another general English course (English course number two) between 28 November 2016 and 20 August 2017. He enrolled in a Certificate IV in New Small Business due to commence on 4 September 2017 and be completed on 1 April 2018 but did not commence it. He completed a general English course (English course number three) between 16 October 2017 and 1 April 2018 and he completed another general English course (English course number four) between 4 November 2019 and 27 April 2020. He enrolled in a Certificate IV in International Trade due to commence on 18 May 2020 and be completed on 14 May 2021 but did not commence it. He enrolled in a Diploma of International Business on 17 May 2021 due to be completed on 13 May 2022 but did not commence it. He enrolled in a Certificate IV in Business due to commence on 18 May 2021 and be completed on 14 May 2021. It is unclear whether he commenced this course, the table provided by his representative after the hearing states that it was “deferred”. There is no evidence of a deferral. He enrolled in a Diploma of Business due to commence on 17 April 2021 and be completed on 13 May 2022. Again it is unclear whether he commenced this course, the table provided by the representative after the hearing states that it was also deferred. There is no evidence of deferral. Indeed the narrative in the table suggests that it was the applicant’s inability to sufficiently comprehend English that resulted in the college “suggested me to study more English course”. The applicant enrolled in an English course (English course number five) and completed it on 14 August 2020. He completed a Certificate IV in Business between 7 September 2020 and 3 September 2021. He is currently studying a Diploma of Business which commenced on 6 September 2021 and is expected to be completed on 2 September 2022. Accordingly, from 13 May 2016, the date of grant of the applicant’s first student visa, the applicant has resided in Australia as either the holder of a student visa or as a dependent on another person’s student visa. In that time the applicant has completed five general English courses of varying duration and one Certificate in Business. On any view this is a poor study history. The applicant has blamed several factors for his lack of achievement. First, that a course or courses were no longer offered by the course provider. Among the many documents provided by the representative after the hearing is an email dated 4 February 2020 in respect of a Certificate for International Trade and a Diploma of International Business. The course provider does indeed state due to low numbers those courses will not proceed. The applicant was invited to enrol in a Certificate IV and Diploma of Business or Leadership and Management. It appears that he did so, however, these are the courses that are described as being “deferred”. The second reason advanced by the applicant for his poor academic performance is to rely on an inability to comprehend the language in which the courses are taught. As described above it is reasonable to expect a student studying a course to be proficient in that language. It is the responsibility of the student to be competent in the language prior to enrolling in the course. It is not an excuse by the student for poor academic performance to rely on a low level of English competency. The Tribunal does not accept that this is a valid reason for poor academic performance.

58.   One of his parents and a sister reside in Taiwan. He owns no assets in Taiwan.

59.   He intends to be employed as the manager of a soymilk retail outlet. He has an offer of employment from that business. It is discussed above. For the reasons described above it is given little weight.

60.   He has provided a business plan in respect of the future retail business. As discussed above it is aspirational in nature and does not disclose any underlying research or factual basis for the assertions contained in it. It is given little weight.

61.   The applicant has stable employment in Australia.

1. The applicant has not explained to the Tribunal’s satisfaction why he did not return to Taiwan when any of the student visas in his name either expired or were refused, why he did not return to Taiwan when his dependent student visa was cancelled, why he chose to return to study after his dependent student visa was cancelled, why he did not ensure that his competency in the English language was sufficient to embark on his intended field of study, why he has required such extensive study in English over a period of several years to reach a satisfactory level of English language comprehension, why his existing business qualification is insufficient to enable him to follow his career path and why another business course is required in order to embark on his career path.

2. The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from Taiwan. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to Taiwan, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Taiwan.

3. The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia in 2013 as a holder of a tourist visa. Between January 2014 and April 2016 the applicant resided in Australia as the holder of consecutive working holiday visas. His first student visa was granted in May 2016. He held a dependent student visa between 30 June 2018 and 27 May 2020. The proposed study would extend the applicant’s stay until at least September 2022. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.

4. The Tribunal does not place substantial weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. The applicant has expressed a singular view of his career path, namely to be the manager of a future retail soymilk business in Taiwan. The business plan and the job offers are relied upon to support this contention. As discussed above these documents are given little weight.

5. On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has qualifications in business. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.

6. The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.

7. The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between Taiwan and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to Taiwan. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to Taiwan.

8. The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.

9. The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia in 2013 the applicant has spent approximately nine years in Australia and returned to Taiwan on five occasions, has no assets in Taiwan, and has stable employment in Australia, all of which indicates that he does not appear to have strong personal ties to Taiwan. On balance, the Tribunal assesses the applicant’s incentive to return to Taiwan to be minimal.

1. The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted several visas specifically to enable him to achieve that goal. On balance it appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.

2. The Tribunal has considered all the information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

3. On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.

4. There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in Taiwan; political or civil unrest circumstances in Taiwan; remuneration the applicant could expect to receive in Taiwan or a third country compared with Australia; circumstances in Taiwan relative to Australia or any other country; and the applicant’s circumstances in Taiwan relative to others in that country.

5. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).

6. 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.

7. 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

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

   Peter Booth
   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.