1503301 (Migration)

[2016] AATA 3709

1503301 (Migration) [2016] AATA 3709 (7 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xingyu Pan

CASE NUMBER:  1503301

DIBP REFERENCE(S):  BCC2014/3578877

MEMBER:Mary-Ann Cooper

DATE:7 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

·cl.573.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 07 April 2016 at 2:50pm

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 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 to the Department of Immigration for the visa on 23 December 2014. The delegate decided to refuse to grant the visa on 20 February 2015. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.570.223(1)(a) of Schedule 2 to the Regulations because s/he was not satisfied that the applicant was a genuine applicant for entry and stay as a student because s/he was not satisfied that he intended to genuinely stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 24 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from his education consultant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573. Documents before the Tribunal demonstrate that he completed the English language course he intended to study when he filed the visa application and has since completed an Advanced Diploma of Management and is currently enrolled in a Bachelor of Business (Accounting) at Cambridge International College.

8. The issue in the present case therefore is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)      the Minister is satisfied that 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)     …

9. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction 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 to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

11. As recorded in the delegate’s decision, a copy of which was provided with the review application, the applicant arrived in Australia on a subclass 570 visa on 20 July 2009 and no evidence had been provided that he had completed any courses other than an English language course in August to October 2009. In addition the delegate observed that he had not undertaken any study for 15 months, from October 2013 and had been absent from Australia for the period 14 January 2014 to 11 March 2014. The delegate acknowledged the applicant’s claim that his father’s illness had caused him to be depressed however noted that he had not sought any deferral from his studies. It was noted that he had been granted a subclass 573 visa in April 2013 but had not enrolled in any courses in breach of condition 8516 of that visa. The delegate noted the applicant’s then current enrolment for an Advanced Diploma of Management but had not informed the Department of this nor provided any reasons for pursuing this course. The delegate considered the applicant was remaining in Australia for reasons other than academic progress and consequently refused the application.

12. Prior to the hearing the applicant provided the following documents:

    ·     Documents indicating that he had successfully completed an Advanced Diploma of Management at Zarah Institute of Education in September 2015

    ·     Academic transcript from CQ University (CQU) indicating that the applicant had been awarded a Diploma of Business Administration on 12 November 2012 and had commenced but failed to complete a Bachelor of Business at the university.

    ·     A statement from the applicant explaining the gap in his studies

    ·     Translated medical documents confirming that the applicant’s father had suffered an eye injury and was admitted to hospital on 21 April 2013 and discharged on 8 May 2013

    ·     Confirmation of Enrolment (CoE) from Cambridge International College indicating that he is enrolled in a Bachelor of Business (Accounting) from 19 October 2015 to 14 October 2018.

13. At the hearing the applicant told the Tribunal that he came to Australia to study because he thought it would get him a better job in China. He confirmed that he has not applied for any other visas in Australia, that his only purpose was to get a degree in business and return to China to assist his father in his plastics business. He said he had tried to study business in China but the course was not useful or practical.

14. The Tribunal asked him to outline the courses in which he had enrolled and completed in Australia. He demonstrated little recall of the courses in which he had been enrolled but claimed that he had gained a Diploma in Business Administration from CQ University in 2012 and Advanced Diploma in Management from Zarah Institute in 2015, as well as completing two English language courses. The Tribunal noted the delegate’s comment that there is no record of his completion of the Diploma and that the records available to it also did not demonstrate this qualification. It asked why evidence of this qualification had not been provided to the Department, he responded that he had not paid all his fees and the university would not release his results until his fees were paid. He said he had only recently been able to pay those fees. The Tribunal queried the authenticity of the document and applicant undertook to provide an original copy of his transcript in this regard. This was later received and confirms his receipt of the Diploma and ongoing study in the bachelor course in 2013.

15. In relation to his current course, he provided a student ID and claimed he had yet to re-enrol for his 2016 courses. He told the tribunal he had not passed his first two subjects but it had been the providers’ fault because it had not enrolled him in the correct subjects and he had only two weeks to study before exams were held. He said he needed to talk to his teacher about his subjects for 2016.

16. The Tribunal noted the record of the courses in which he had enrolled and failed to complete, and the gap in his studies, and asked him to explain. He said he completed his Diploma in 2012 and had enrolled in the accompanying Bachelor of Business degree at CQ University but had found it very difficult. He said he waited too long before realising he could not do it and had failed too many subjects. He said he planned to continue in 2014 but discovered just before he went home in 2014 that his father had a bad accident which resulted in a severe eye injury. He said after this he felt he should take over responsibility for the family but his family told him he should come back to Australia to complete his studies. He said it was a very confusing time for him and he was depressed and unmotivated. He said he had not seen a doctor but his friends had told him to get out of the house and get back to school because otherwise he would be sent home. He said he found a new agent who had helped him make up for the lost time and put him on a path to completing his degree as soon as possible. He had since completed the Advanced Diploma in Management in 6 months and was now on the way to completing his degree.

17. The Tribunal observed that on the Department’s records and those records before it, he had been in Australia for five years without completing any qualification. The applicant reiterated that he had completed a Diploma in Business Administration in 2012. He said when he arrived in Australia in 2009 he did not know anyone and after he completed the English language course his friends had either returned to China or went to different schools. He said his subsequent studies had been very daunting for him and he had not been able to cope. He said he spoke to a student counsellor who told him to attend more social events. The Tribunal infers that this advice was not particularly useful in respect of advancing his studies. As confirmed by the CQ University documents, the applicant undertook a Bachelor of Business in Terms 1 and 2 of 2013 but failed most of his subjects. It was soon after that, he claimed, that his family told him about his father’s accident and after his trip home, and their insistence that he returns to Australia to study, he was very depressed and lacking motivation.

18. The Tribunal asked him about his remunerations expectations in China and he was unaware of what he might be paid. He said he did not think he would get a job in Australia with just a business degree. He maintained that he did not plan to undertake any further study in Australia and wanted to graduate as quickly as possible and return home to care for his parents as soon as he could.

19. When asked about his family’s circumstances in China he said his parent’s had average income. He said they are divorced but they both cared about him a lot. He said he has friends in China and some community ties. He has no family in Australia but does have some friends here. It appears he has no community ties.

20. The Tribunal referred to Direction 53, as provided to him with the hearing invitation, and outlined the matters it was required to consider, in particular, whether the applicant was using the student visa program to maintain ongoing residence in Australia or circumvent the intensions of the migration programme. The applicant acknowledged his length of time in Australia but claimed if he had been intending to stay he would have made other arrangements. He said companies in Australia are relatively small when compared to China and he believed that he had much better job opportunities in China than Australia. He maintained that he just wants to go home as soon as he can and that his recent trip home had confirmed this for him.

21. The Tribunal observed that the applicant had enrolled in a number of courses, since 2009 and, except for the English language course, and subject to confirmation of the completion of the Diploma in 2012, he had not completed any courses and had not progressed academically. It also observed that the applicant had a long period without any study in breach of the conditions of his previous visa and that he had apparently not sought any help or a deferral from his education provider with his claimed depression and lack of motivation. In this context the Tribunal told the applicant this might mean it was not satisfied that he has a genuine intention to reside in Australia temporarily to undertake study, rather it indicated that he was using the student visa program to maintain or prolong his residency in Australia. It asked the applicant to respond.

22. He responded that when he first came to Australia he was not familiar with the environment. He said he gradually met and made friends however he had been required to work to pay for his tuition and it had become very stressful for him and resulted in his failure to do well academically. He said he spoke to his family who told him to focus on his study and he had done so, completing his Diploma of Business Administration at CQU in November 2012. After his father’s accident and hospitalisation however he said he was “in a bad place”. He claimed he was very close to his father and regretted that he was not with him and consequently had little motivation to study. He said he stayed in his room all day and did not want to go anywhere. He said the school sent him emails but by the time he read them it was too late. He said it was not until he found a new agent, who helped him re-organise his studies, that he has been able to progress. He now wishes to graduate as soon as possible so he can go back home to help his parents. He said he hoped to complete the course in 2 years.

23. The Tribunal asked why he did not return to China when he was feeling so depressed, and apply at a later time for a student visa, when he had recovered.  He said if he returned home now he may not come back and his parents want him to complete his degree. The Tribunal asked why he had not contacted the Department if he was in trouble or asked his education provider for a deferment. He said his friends suggested this but he just wanted to stay home all day. He claimed that now he is “OK”,

24. He asked the Tribunal to just give him a chance to finish his bachelor degree. He acknowledged that he had not had a good start but he was now anxious to complete his qualification and return to China as soon as possible.

25. The Tribunal then spoke to his witness, an educational consultant from Aust-Sky Group. She told the Tribunal that the applicant had come to their office in early 2015 seeking advice about his study options. She claimed that he told her he wanted to work as an accountant in China in a large organisation and needed to complete a bachelor degree in order to do so. She also said he told her wanted to help his parents in China. She said she advised him that it was best to complete an Advanced Diploma first and this would assist him in getting into a degree course. She said the company facilitated his enrolment in the Advanced Diploma of Management which he completed last year and he was now enrolled and had commenced studying a Bachelor of Business at Cambridge College. The Tribunal observed that he had been enrolled in many courses but not completed them and asked why this course should be considered to be any different. She acknowledged that in the past he had not done well but said that she had confirmed with CQU that he had completed the Diploma of Business Management in 2012. She said she understood he had family problems and it was her understanding that the applicant was a sensitive and emotional person and she thought he had been very lonely when he first came to Australia. She claimed he was enjoying his study now.   

26. The Tribunal allowed the applicant some further time to provide evidence of his study. It later received original copies of documents demonstrating his successful completion of a Diploma of Business Administration at CQU on 12 November 2012 and an Advanced Diploma in Management in September 2015. It also received his confirmation of enrolment for a Bachelor of Business (Accounting) at Cambridge College which commenced in 2015 and will be completed in December 2017.     

27. While it is apparent that the applicant made little academic progress over the period 2009 to the end of 2014, the Tribunal observes that his enrolments have followed a path consistent with his stated career plan, that is, to gain business qualifications so he can return to China to assist his father in his business. The Tribunal accepts that he appears to have had little support in Australia until recently and that he initially found it difficult to find an appropriate course and maintain the required level of study and commitment. It also accepts his evidence of his closeness to his parents, particularly his father, and that his father’s illness and his difficulties with his studies, contributed to his lack of motivation and failure to achieve any academic progress during the period 2013-14. While on the face of it his record is clearly unsatisfactory, the Tribunal accepts his frank and credible evidence, as supported by his witness, as to the reasons for his failures in this regard. It also notes his more recent successful completion of the Advanced Diploma in Management in 2015, his completion of an IELTS preparation course and commencement of a Bachelor of Business (Accounting)  and considers that this evidence supports his claim to now be motivated and better equipped to complete his study. The Tribunal accepts, having had the advantage of his oral evidence and that of his witness, that he is committed to completing his degree as soon as possible as he is anxious to return home to assist his parents.

28. For these reasons, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily, for the purpose of study, having regard to the factors specified in Direction 53.

29. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.573.223(1)(a).

    CONCLUSION

30. As the Tribunal has found the applicant meets the requirement of cl.573.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

31. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa

    ·cl.573.223(1)(a) of Schedule 2 to the Regulations.

    Mary-Ann Cooper
    Member