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Kashima (Migration) [2021] AATA  2676  (9 June 2021)

Last Updated: 4 August 2021

Kashima (Migration) [2021] AATA  2676  (9 June 2021)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mrs Maki Kashima
Mr Satoshi Kashima
Mr Yuto Kashima
Mr Haruki Kashima

CASE NUMBER: 1724462

HOME AFFAIRS REFERENCE(S): BCC2017/2822576

MEMBER: Jens Streit

DATE: 09 June 2021

PLACE OF DECISION: Brisbane

DECISION: The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 09 June 2021 at 09:35am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – not a genuine temporary entrant – study is available in home country – proposed courses have minimal relevance to future work – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
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 Immigration and Border Protection on 22 September 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
2. The applicants applied for the visas on 8 August 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intended a temporary stay in Australia as a student.
4. The applicant appeared by telephone before the Tribunal on 4 December 2019 to give evidence and present arguments.
5. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages.
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.
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. At the time of lodging the application for review, the applicants provided the Tribunal with a copy of the delegate’s decision and record of reasons refusing to grant the visas.
12. In terms of the evidence, the Tribunal has had regard to the applicant’s oral testimony, the Departmental file, the Tribunal file and the documentation provided by the applicants to the Tribunal.
13. The applicant is a 44-year-old Japanese national, who arrived in Australia on 17 June 2017 on a Tourist visa (UD601) for a stay of two months, the purpose of which was to visit friends and relatives.
14. On 08 August 2017, the applicant applied for a Student (Temporary) (Class TU) Student (Subclass 500) visa to study a Diploma of Hospitality. Whilst the student visa application was pending, the applicant successfully completed the International English Language Testing System (IELTS) on 15 September 2017.
15. At the time of the hearing, the applicant had completed or was otherwise enrolled in the following courses:
    • IELTS (completed);
    • Diploma of Hospitality (completed);
    • Diploma of Leadership and Management (studying).
16. In terms of the applicant’s circumstances in her home country, in her response to the Tribunal’s ‘Request for Student Visa Information’ form, the applicant records that since arriving in Australia on 17 June 2017 and to June 2019, the applicant travelled back to Japan on three occasions to visit family. The total number of days visiting family in Japan was 64.
17. During the hearing the applicant told the Tribunal that save for some money, she does not own any property in Japan.
18. In her response to the Tribunal’s ‘Request for Student Visa Information’ form, the applicant recorded that she does not have any community ties in Japan.
19. The applicant recorded that she does not have any concerns about military service commitments or political or civil unrest in Japan.
20. In terms of the applicant’s potential circumstances in Australia, in her response to the Tribunal’s ‘Request for Student Visa Information’ form, the applicant records that she lives in Australia with her husband and two children.
21. In her response to the Tribunal’s ‘Request for Student Visa Information’ form, the applicant records working in the period August 2017 to September 2019 doing housework.
22. The applicant does not own any property in Australia and is not presently employed.
23. As set out in the applicant’s written statement of 15 November 2019, the applicant and her husband accumulated savings to pay for their living expenses in Australia.
24. Having regard to the evidence and in particular the applicant’s family circumstances, the Tribunal considers the applicant’s circumstances in Japan do not provide an incentive for the applicant to return to work and live in Japan, as to outweigh the incentive for the applicant to remain living in Australia.
25. In terms of the value of the courses to the applicant’s future, the Tribunal notes the applicant’s response to the Tribunal’s ‘Request for Student Visa Information’ form, and her written submission to the Tribunal. In these documents the applicant records her reasons as to why she chose to study a Diploma of Hospitality and then a Diploma of Leadership and Management in Australia.
26. The Tribunal notes the applicant records obtaining a Bachelor of Chemistry in March 1999 and an employment history of working as a pharmacist during the period April 1999 to July 2017.
27. In her written statement dated 4 August 2017, the applicant explains her reasons for applying to study a Diploma of Hospitality. Those reasons are centred around seeking to understand hospitality management in English to obtain an opportunity to work for a company in the hospitality industry where English is needed to communicate with international travellers in Japan. The applicant considered studying in Australia would quickly improve her understanding of English.
28. At the time of the hearing the applicant had successfully completed study for a Diploma of Hospitality and was studying a Diploma of Leadership and Management.
29. In terms of the Diploma of Leadership and Management, in her written statement dated 15 November 2019, the applicant asserts in part that:

My proposed course may not be directly relevant to my education and employment background but definitely relevant to my future plan.

My future employment plan is to seek a job in management position at pharmacy. As I have more than 15 years work experience as a pharmacist additional to my previous (Japan/current (Australia) qualifications, I am very confidence (sic) that I will be able o find a management job in that sector.

30. Further, in her written statement, the Tribunal notes the applicant’s assertion that her study in Australia can be fully applied to her aim of finding employment in pharmacy management in Japan.

My main reason for choosing to undertake a Diploma of Leadership and Management is o increase my chance of success of being employed as a manager at pharmacies (where English is a common language in Japan).

31. During the hearing the applicant gave evidence to the effect that while studying pharmacy in Japan, she worked in a restaurant and enjoyed the contact that position provided her with customers. The applicant went on to assert that if she had another life she would choose to work in the hospitality industry. The applicant stated to the effect that the pharmacy and hospitality industries were similar in engaging with customers.
32. In responding to a question from the Tribunal as to why the applicant did not return to work and live in Japan after completing the Diploma of Hospitality, the applicant stated that part of the Diploma of Hospitality required study in management. The applicant stated that her interest in management grew. The applicant stated that when working as a pharmacist in Japan, pharmacy management was the next career step. The applicant is studying a Diploma of Leadership and Management because she wants to pursue her goal of working in pharmacy management in Japan.
33. The applicant gave evidence that she thought about returning to Japan to continue her study after completing her Diploma of Hospitality but decided to stay in Australia and study as her original purpose for coming to Australia was to improve her English. While the applicant was studying in Australia, she also wanted her son to study English and meet other people in Australia.
34. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant the contents of the applicant’s written statement of 4 August 2017. The Tribunal explained that the written statement reflected that the applicant studied a Diploma of Hospitality to have an opportunity to work in the hospitality industry in Japan, but after completing the Diploma of Hospitality, the applicant stayed in Australia and enrolled in another course, which was not consistent with a genuine intention of remaining in Australia for the purpose of study. The Tribunal explained the consequences of relying upon the information. The Tribunal invited the applicant to comment on or respond to the information and advised the applicant they may seek additional time to comment on or respond to the information. The applicant elected to respond at the hearing.
35. In response, the applicant stated to the effect that the reason she first came to Australia was to improve her English. Since first coming to Australia on a work visa and then coming back to Australia, the applicant asserted she always had a desire to improve her English because that would help her career as a pharmacist. The applicant stated that she liked the hospitality industry and those feelings were manifested in her written statement.
36. When studying hospitality, the applicant found she enjoyed the course very much and learned a lot of new things. While working as a pharmacist in Japan, becoming a manager was the next career step but the applicant was not confident enough. While studying in Australia, the applicant stated that she gained confidence and became more interested in becoming a manager.
37. The applicant stated that her future goals shifted once she came to Australia. The applicant initially wanted to work in hospitality and improve her English. While studying in Australia, the applicant wanted to then work in a managerial position as a pharmacist. This is the reason why the applicant decided to study a Diploma of Leadership and Management.
38. During the hearing the applicant gave evidence that at the completion of her study in a Diploma of Leadership and Management, she would return to Japan to seek employment immediately. The applicant stated she has already started to look into employment as a senior pharmacist in Japan.
39. When asked why she could not study a Diploma of Leadership and Management or equivalent course in Japan, the applicated stated to the effect that she thought it was possible to study the equivalent course in Japan but that it would be longer, cost more money and would not be taught in English.
40. Save for the applicant’s assertions, there is no evidence before the Tribunal as to how studying a Diploma of Leadership and Management in Australia would assist the applicant in seeking employment in a management position in a pharmacy in Japan. There is no evidence as to what qualifications are needed for a management position in a pharmacy in Japan.
41. The Tribunal recognises the importance of allowing for reasonable changes to career and study pathways, however, the Tribunal is not persuaded by the applicant’s reasons for remaining in Australia and enrolling in a Diploma of Leadership and Management after completion of a Diploma of Hospitality. The Tribunal considers the applicant could have studied the Diploma of Leadership and Management or equivalent course in Japan.
42. The Tribunal considers the applicant’s plans for the future to obtain employment in a management position in a pharmacy in Japan lack detail and are conceptual.
43. In all the circumstances the Tribunal is not satisfied as to the value of the applicant studying a Diploma of Leadership and Management in relation to the applicant’s plans for the future, namely to seek employment in a management position in a pharmacy in Japan.
44. In terms of the applicant’s immigration history, the Tribunal notes the applicant has travelled to various countries and that she has complied with her visa conditions whilst studying in Australia.

Conclusion

45. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Weighing up the above matters, the Tribunal considers that the applicant is using the student visa programme primarily to maintain ongoing residence Australia.
46. Having had regard to all matters, including as canvassed 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).
47. Given the above findings, the Tribunal finds that the primary 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 to refuse to grant the visa to the applicant must be affirmed.

Secondary applicants

48. The Tribunal must also affirm the decision not to grant the secondary applicants Subclass 500 visas as they do not each meet the secondary visa criterion requiring them each to be a member of the family unit of a person who holds a Subclass 500 visa, and there is no evidence that they meet the primary visa criteria for this subclass in their own right.

DECISION

49. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Jens Streit
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:

1. the applicant’s circumstances; and
2. the applicant’s immigration history; and

100. if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

4. 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:
   1. considering the applicant against all factors specified in this Direction; and
   2. 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:
   1. information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
   2. the applicant or a relative of the applicant has an immigration history of reasonable concern;
   100. the applicant intends to study in a field unrelated to their previous studies or employment; and
   4. 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:
   1. 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;
   2. 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;
   100. 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;
   4. military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
   5. 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:
    1. The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
    2. evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
    100. whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
    4. 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
    5. 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:
    1. 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
    2. relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
    100. 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:
    1. Previous visa applications for Australia or other countries, including:
       1. 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
       2. 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.
    2. Previous travels to Australia or other countries, including:
       1. 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;
       2. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
       3. 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
       4. 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.