Wong (Migration) [2019] AATA 3564 (27 June 2019)

Last Updated: 17 September 2019

Wong (Migration) [2019] AATA 3564 (27 June 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Yik Hua Wong

CASE NUMBER: 1731952

HOME AFFAIRS REFERENCE(S): BCC2017/1757221

MEMBER: Tim Connellan

DATE: 27 June 2019

PLACE OF DECISION: Melbourne

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


Statement made on 27 June 2019 at 4:29pm


CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – business studies – not genuine student intending to stay in Australia temporarily – inconsistent claims – false or misleading evidence – did not provide evidence of ties to Malaysia and Australia – incentives to remain in Australia – seeking to use student visa programme to maintain ongoing residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 499
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.217, Condition 8202, Public Interest Criteria 4020

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 30 November 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied for the visa on 17 May 2017. 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 (the Regulations) because the delegate was not satisfied the applicant was a genuine temporary entrant who intended to stay in Australia temporarily.
4. For the following reasons, the Tribunal has concluded that the under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 a genuine applicant for entry and stay as a student who intends to stay in Australia temporarily(cl.500.212)
6. 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.

Is the applicant a genuine student who intends to stay in Australia temporarily?

7. On 5 April 2019 the applicant was invited to provide information pursuant to s.359(2) by completing an Online Student Visa Information Form.
8. The applicant completed the form which was returned to the Tribunal on 6 April 2019.
9. In that form the applicant consented to the Tribunal deciding the review without hearing
10. 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.
11. 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.
12. Reading from the primary decision, a copy of which the applicant provided with his review application, he arrived in Australia on 11 March 2017 as the holder of a 601 visitor visa.
13. On his incoming passenger card he declared he intended staying in Australia for a seven day holiday and that he was a ‘Salesman’ by occupation.
14. Shortly after his arrival he lodged this student visa application to remain in Australia for two years. In that application he declared that he was a sole proprietor of a business and provided an employment letter indicating he had been helping his mother run a Hairdressing Salon.
15. The delegate found the inconsistent claims regarding past employment led her to be not satisfied that the decision to apply for a student visa on shore was not pre-empted and raised questions about the veracity of the applicant’s intention to remain in Australia for only seven days as stated on the arrival card.
16. The delegate expressed concern that the applicant’s intended courses of study had been chosen for the purposes of enabling him to reside in Australia with work rights.
17. In Mr Wong’s student visa application he stated that he intended studying English followed by business courses and on his return to Malaysia he would manage his mother’s hairdressing business.
18. Reading from the primary decision, a copy of which the applicant providd with his reiew application, the Department conducted checks to verify the information regarding Mr Wong’s future employment and conducted a phone interview with his mother (Ms Lau).
19. When it was put to Ms Lau that Mr Wong had stated he would be returning to take over the business on completion of his studies, she said she had never discussed or given thought to him taking over the hair salon business.
20. Further Mr Wong provided an employment letter that stated Ms Lau would be opening another outlet in Kuching. Ms Lau verified she has no plans in the future to open another outlet in Kuching.
21. Finally Ms Lau confirmed that she does not recall issuing the letter of employment which was attached to Mr Wong’s application.
22. This information gained by the Department indicates that in support of his student visa application, Mr Wong provided evidence that was false or misleading in a material particular and is likely to have created a breach of public interest criteria 4020 and therefore would mean he is unlikely to satisfy clause 500.217.
23. In the student visa information form he provided answers to a range of questions.
24. When asked why he had chosen his proposed courses, he stated that it was his mother’s suggestion. In light of the matters discussed in the preceding paragraphs, the Tribunal gives little weight to this answer and finds that he is seeking to use the student visa programme to maintain ongoing residence in Australia.
25. Despite specific requests to provide evidence of ties to his community in Malaysia and ties in Australia, he failed to provide any answers to those questions. While the Tribunal is satisfied his wife and parents live in Malaysia, the fact that he has now been in Australia for well over two years and seeks to remain longer indicates he perceives incentive to remain in Australia that outweighs the benefit of returning home.
26. While he provided a letter referred to previously, stating he would go back and manage a hairdressing salon, in the recently provided information form when asked about future employment plans, he stated on completion of his studies he wished to go back to Malaysia to look for a job with his better English. The Tribunal finds his studies are not guided by any legitimate business plan, career goals or academic pathway but rather a desire to remain in Australia.
27. When asked about past/current and future enrolments, Mr Wong only listed enrolment in a Certificate IV in EAL at Australian Study Link Institute which ran between June 2019 and December 2017. He noted he did not complete this course. The Tribunal finds this is not the progress of a genuine student.
28. In response to a question as to why he did not do his proposed studies at home, he simply responded that it suits him better in Australia with an English environment. The Tribunal does not believe this is a satisfactory explanation for incurring the very substantial expenses of studying in Australia and being away from his wife and family compared to being able to do the same course at home. The Tribunal finds this is further evidence that Mr Wong is seeking to use the student visa programme to maintain residence in Australia.
29. On the basis of the above, 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 and further the Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet.500.212(a).
30. 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

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

Tim Connellan
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.