1506497 (Migration)

[2016] AATA 4312

1506497 (Migration) [2016] AATA 4312 (26 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lai Chu

CASE NUMBER:  1506497

DIBP REFERENCE(S):  BCC2015/934367

MEMBER:Miriam Holmes

DATE:26 August 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 26 August 2016 at 8:22am

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 24 March 2015. The delegate decided to refuse to grant the visa on 30 April 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 the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily.  

4. The applicant appeared before the Tribunal by teleconference on 11 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal deferred making a decision for the applicant to provide additional information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 570.

7. The issue in the present case is whether the applicant meets the time of decision criterion in cl.570.223. Clause 570.223(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)     …

8. 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.

9. 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.

10. The Tribunal had regard to the Direction and the following matters in assessing whether the applicant intends genuinely to stay in Australia temporarily.

11. The applicant was born in 1964 in China, and is aged 51 years and is a citizen of Hong Kong.

12. The applicant is married and her husband resides in Hong Kong. The applicant’s husband works in his own accounting firm in Hong Kong. The applicant’s husband has not travelled to Australia since she arrived in Australia.  The applicant has not returned to Hong Kong to visit her husband since arriving in Australia in January 2015.

13. The applicant has one daughter born in 1993, and is aged 24 years. The applicant’s daughter has been living in Australia since 2014 on a student visa. The applicant’s daughter is studying a business course in Adelaide. The applicant told the Tribunal that she last saw her daughter at Christmas 2015 when her daughter travelled to Perth to visit the applicant.

14. The applicant grew up in China and attended school in China. The applicant graduated from high school in 1981. She subsequently went to college and studied, in her words, “how to do art products”. She undertook this course between 1981 and February 1985.

15. After completing College, the applicant worked in China in a business selling art products. The art products sold by the business, included porcelain statues and local cultural artefacts and was a local government company. The applicant worked at the company in the office from 1985 until 1992. Although, the applicant stated that she had a period of 2 years when she did not work as her father was unwell.

16. In 1992 the applicant met her boyfriend (now husband). Her daughter was born in 1993. Between 1993 and 2001 the applicant lived in China with her partner and child, and her partner worked. 

17. In 2001 the applicant, along with her husband and child, moved from China to Hong Kong. The applicant’s husband and his parents were Hong Kong residents. They all moved together to Hong Kong because the applicant’s husband’s parents needed to be looked after.

18. In the six years, prior to the applicant coming to Australia in 2015, the applicant had been working in her beauty salon firm, a business which included selling health products. The applicant was the manager of the business, and looked after the timesheets of the employees and the financial aspects of the business. Whilst the applicant is in Australia, a friend of the applicant is managing the beauty salon business.

19. On 9 January 2015 the applicant arrived in Australia from Hong Kong.  Initially in the hearing, the applicant stated that her purpose in travelling to Australia was to travel around and study English. She stated that after she arrived she planned to do more study.  When the Tribunal sought to confirm this evidence the applicant stated that she first applied in Hong Kong to travel to Australia and to travel as a tourist and look around Australia. After she arrived in Australia she thought it was a good environment and decided to learn English and to learn about the culture.

20. The Tribunal asked the applicant when she first visited her daughter after arriving in Australia. The applicant stated that her daughter returned to China on three occasions after the applicant arrived as her paternal grandmother was sick and so her daughter went back to Shanghai. The applicant stated that the terms of her visa were that she was not allowed to go back.  The applicant stated that she came to Australia on a visitor visa but could not specify the type of visa. She stated that she asked a travel agent to arrange the visa, so the agent did the visa so she did not have to travel with a group to Australia. The Tribunal again asked when the applicant first saw her daughter after arriving in Australia and the applicant replied that it was Christmas 2015. The applicant stated that she wanted to go and see her daughter but every time her daughter had holidays her daughter returned to China and due to her visa the applicant could not return to China.

21. Under the procedure in s359AA of the Act, the Tribunal invited the applicant to comment on information that the applicant was the holder of an Electronic Travel Authority (subclass 601) visa until 9 April 2015 which did allow the applicant to travel in and out of Australia in that period. The applicant explained that her friend translated for the applicant and her friend said that she cannot move around and could not leave Australia.  The Tribunal notes that this is consistent with the applicant’s migration status after 9 April 2015 when the applicant was on a bridging visa A, which has no right of re-entry to Australia if the holder leaves Australia.

22. The Tribunal asked the applicant why she applied for a student visa in March 2015. The applicant stated that she looked online and she discovered English courses and she thought if she studied English courses it would help her with more credentials to sell health products, and so she thought she would stay to study English. The applicant explained that some health products are in English and it would help the applicant if she could read the English health products.

23. The Tribunal notes, after undertaking an internet search, there are numerous English language courses in Hong Kong. The Tribunal asked the applicant why she could not return to Hong Kong and undertake an English language course in Hong Kong.  The applicant replied that in Hong Kong at her advanced age it would be difficult her to be accepted into an English language course. The Tribunal observed that it found it difficult to accept that the applicant would not be accepted into an English-language course because of her age. The applicant stated that what happened was that her intention changed, that she was in the middle of her trip to Australia and decided that she wished to study English in Australia. The Tribunal queried why the applicant did not return to Hong Kong and study English in Hong Kong and the applicant replied that after arriving in Australia she discovered that the environment was good, that she liked Australia, so she decided to study in Australia. She said that when she first arrived in Australia she really liked it in Australia.

24. The applicant told the Tribunal that she enrolled in an English language course in Perth at AILFE (Australian Institute of Language and Further Education) and began a course on 11 January 2016 for a period of three months. The Tribunal queried why the applicant applied in March 2015 for a student visa but did not start her English language course until January 2016, the applicant replied that in that time she was studying the English language at home online. The Tribunal queried whether she had any records to prove that she had been undertaking any study in Australia and the applicant replied yes. The Tribunal noted that it had not received any documentary evidence from her of undertaking any English-language studies in Australia. The applicant replied that she was not familiar with email. She then went on to say that she that she had been studying an English-language course called “speaking office language”. The applicant stated that she stopped the course because she wanted to digest the information that she had learnt and was waiting for her pending Tribunal appeal. The applicant gave evidence that on 26 March 2016 the school commenced holidays and the applicant travelled around Australia and when she returned to school they had already resumed the course and she could not catch up and so do so decided that she would start in a later term.

25. Under the procedure in section 359AA of the Act,  Tribunal invited the applicant to comment on PRISMs records which indicated that she was enrolled in English language courses however that enrolment had ceased on 1 July 2015 and she had not been enrolled in any language course since that date and was not currently enrolled in a course. The applicant replied stating that she does not agree with that because she did study and she should get a visa. The Tribunal noted that it had no documentary evidence that she has studied. The applicant replied stating that her thinking was simple that she did not need to show proof and that her statements would be sufficient. The Tribunal agreed to defer making a decision for a period of 2 days for the applicant to provide documentary evidence of the studies that she has undertaken in Australia in an English-language course. After the hearing, the Tribunal received from the applicant documentary material, including a letter of offer for an English language course commencing on 11 January 2016, being a Certificate II on Spoken and Written English at AILFE. The course was in two parts and due to finish on 29 July 2016. Further, the Tribunal received a letter dated 12 July 2016 from AILFE stating that the applicant was enrolled as a student in the Certificate II in Spoken and Written English between 11 January 2016 and 25 March 2016 and her attendance was 80.76% in that period.

26. The Tribunal observed during the hearing that the applicant had now been in Australia for approximately 18 months and had ample time to study an English-language course and queried why the Tribunal should consider her to have a genuine intention to only stay temporarily in Australia.  The applicant stated that she did not start formal study at school but she has been studying on the Internet. The Tribunal queried why she should be given a visa to study in Australia online when she could travel to Hong Kong and study online. The applicant replied that Australia is very lovely and she wished to travel around Australia and it would be good at her age to study in Australia.

27. The applicant stated in oral evidence that she has been living in Australia with a couple and a baby. She stated that the couple come from the same place as her father’s home town in China. The applicant states in her written statement to the Tribunal that she is living with a friend in a rental apartment and the rental is totally affordable.

28. In relation to the financial resources of the applicant to study in Australia, the applicant stated that she brought savings of approximately $9000 to Australia and in addition she is sent money from Hong Kong to meet her financial expense in Australia. The applicant also stated that she has four properties in China. The applicant provided to the department various financial documents, including bank statements of funds held in the applicant’s name. In the written statement to the Tribunal the applicant notes that she has adequate savings and is financially secure.

29. The Tribunal also had regard to the statement provided to the Tribunal setting out the applicant’s reasons for undertaking the proposed courses, the reasons for choosing to study in Australia and the education providers and the relevance of the course to future career or education plans. The applicant states that since she is in an English speaking country she would like to use this advantage to better herself through formal study. She chose Australia rather than her home country because living in an English speaking country grants her the practice whenever she likes and would improve in a short period of time and it would take more time in Hong Kong. In addition, the applicant states that she used to do an import and export health food business for a period of time and insufficient English was the major barrier which held the business back from expanding and she was quite disappointed at herself and therefore would like to take the opportunity to study.  The applicant also refers to returning to Hong Kong as she misses the lifestyle – including the culture, food, shopping centres and family and friends.

30. During the hearing the Tribunal expressed its reservations about whether it could be satisfied the applicant genuinely intends to stay in Australia temporarily. The Tribunal noted that the applicant had travelled to Australia on a three month visa and at the end of that visa had applied to study in Australia, that she had been in Australia for 18 months and not undertaken and successfully completed an English-language course in that period, further she has a daughter in Australia and the applicant has made it clear that she likes Australia. In these circumstances the Tribunal queried why the Tribunal should be satisfied that the applicant would leave Australia. The applicant replied that it was not true, and that her parents reside in China and she likes Australia so much that she wants to study in Australia for the purposes of future work. The Tribunal queried how her English studies would assist her in her future work and she replied that study makes her happy, it’s not a matter of what she studies, it’s the fact that study can elevate people and study makes her happy. The Tribunal noted it had some difficulty in seeing how the English-language study would help her in her employment or enhance her career or future employment plans. The applicant stated that it does not matter what is studied or what marks you obtain from studying. She then went on and stated that she has a business in China and the business will expand and requires her to study English. After further questioning the applicant explained that her brother and sister-in-law have a large family firm in China. She stated that her brother has been in Australia for approximately 10 days with a view to setting up a franchise of his business in Shanghai. She stated that she will return to manage the franchise in Shanghai for her brother. The Tribunal asked the applicant why she would return to China and the applicant replied that her parents need her to look after them and her brother needs her for his business and to return to look after the new branch.

31. The Tribunal asked the applicant how long she would seek to remain in Australia for the purposes of study. The applicant stated that she originally applied to study in Australia for a period of one year and six months and then to go back and then she would open the branch in China, but she has yet to receive a student visa. The Tribunal noted that there was no current enrolment so queried how long she was seeking a student visa for and she replied she would seek a visa for a period of eight months because she cannot stay long in Australia and was seeking another eight months of study in Australia.

32. After considering the matters above and Direction No.53, on balance, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.

33. The applicant arrived in Australia in January 2015 as a visitor on an electronic travel authority visa granted for a period of three months until 9 April 2015. On 24 March 2015 the applicant lodged a student visa application seeking to remain in Australia for the purposes of studying two English-language courses. As at the date of hearing in July 2016 the applicant indicated that she is now seeking to remain in Australia for a further 8 months, taking her stay in Australia to more than two years, since arriving on a three month temporary visa. Since arriving in Australia in January 2015 the applicant has not left Australia. The Tribunal considers that her conduct in arriving on a short term three month visitor visa, and then seeking a student visa to study two English language courses for 18 months and her subsequent request for another further 8 months from July 2016 to study indicates that the applicant does not intend to stay in Australia temporarily.

34. The applicant has family ties to Hong Kong, as this is where her husband lives. The applicant and her husband have not been together in the same country since the applicant arrived in Australia in January 2015. The applicant also has family ties to China as her parents and brother live in China. When the Tribunal discussed with the applicant about leaving Australia and how the studies would be of benefit to her career, she referred to working in Shanghai in her brother’s business. When the Tribunal asked the applicant why she would return to China the applicant replied that her parents need her to look after them and her brother needs her for his business and to return to look after the new branch. After speaking with the applicant, the Tribunal was not persuaded that she had a strong incentive to return to Hong Kong to be with her husband, given her evidence about seeking to remain in Australia for another eight months (taking her stay in Australia to two years) and noting her evidence late in the hearing that she planned to travel to Shanghai to work for her brother and that her parents needed her in China.

1. The applicant also has family ties to Australia as her daughter is currently in Australia on a student visa. The applicant states that her daughter has returned to China and then back to Australia on three occasions since January 2015, and she saw her daughter in December 2015.

2. On the evidence available, the Tribunal did not consider that the applicant’s family ties to Hong Kong were an incentive to leave Australia and to return to Hong Kong. The Tribunal accepts that the applicant’s family ties in China were an incentive to leave Australia, however the applicant’s daughter has been living in Australia since 2014, and the applicant arrived in 2015 and has not departed Australia since. The applicant’s continuing presence in Australia and request to remain in Australia indicates that the applicant has strong incentive to remain in Australia with her daughter. 

3. The Tribunal had regard to the applicant’s enrolment in courses and actual formal study since March 2015 and her academic progress in that time. The applicant was enrolled in two English language courses at the time of her student visa application, as noted by the COE course codes in her visa application. The applicant’s enrolment in the two English language courses mentioned in the visa application were cancelled on 1 July 2015. The PRISMS records indicate the applicant has not been enrolled in any courses since that date. There is no evidence the applicant attended any courses between March 2015 and January 2016. The applicant states that she studied English online until January 2016. The applicant has provided evidence that she received a letter of offer of an English language course commencing on 11 January 2016, being a Certificate II on Spoken and Written English at AILFE. The course was in two parts and due to finish on 29 July 2016. Further, the Tribunal received a letter dated 12 July 2016 from AILFE stating that the applicant was enrolled as a student in the Certificate II in Spoken and Written English between 11 January 2016 and 25 March 2016 and her attendance was 80.76% in that period. The applicant states that she did not undertake any further formal studies in 2016 as she travelled around Australia and did not return to school in time for the resumption of the course studies and so she decided that she would start in a later term.  The documents state that Part 2 of the course commenced on 11 April 2016 until 29 July 2016 – however the applicant states that she did not commence this part of the course. There is no evidence before the Tribunal that the applicant has enrolled in another course.

4. On the evidence available, the Tribunal finds that since March 2015 the applicant has attended English language studies in Australia between January 2016 and March 2016. The documentary material from AILFE indicates that the applicant did attend and was enrolled for the first part of the Certificate II course between 11 January 2016 and 25 March 2016. The Tribunal considers that the applicant has had ample opportunity since March 2015 to undertake and complete English language studies in Australia. She was enrolled in a course in 2015, but her enrolment was cancelled. She was also enrolled in a course for a period in 2016, but only attended part of the course and did not complete the course in the specified period, rather she travelled around Australia and did not return in time to continue her studies. The applicant has had ample time in Australia to undertaken and successfully complete English language studies. However the applicant has only dedicated a relatively short period to pursuing her studies whilst she has been in Australia. The Tribunal considers the applicant’s conduct in not undertaking the courses that she has enrolled in during 2015 and only spending a relatively short period studying in 2016 before ceasing study again, and her lack of successfully completing any studies since March 2015, and lack of any current enrolment indicates that the applicant is not a genuine student and does not intend genuinely to stay in Australia temporarily. In light of the applicant’s conduct to date, the Tribunal has little confidence that the applicant will pursue studies in the English language if she were granted a student visa and then depart Australia.

5. The Tribunal also notes that there are numerous English language courses available in Hong Kong. The Tribunal did not accept the applicant could not study in Hong Kong based on the reasons provided by the applicant. When the Tribunal asked the applicant why she was pursuing studies in Australia she referred to her like of Australia. The Tribunal noted the applicant’s explanation that she would learn more quickly in Australia due to being in an English speaking country, may well be true, however the applicant has not dedicated her time in Australia to study to take advantage of being in an English speaking country.  

6. The Tribunal also took into consideration whether the English language study would enhance the applicant’s employment opportunities. The applicant is 51 years of age. Over time the applicant has given different information regarding her employment ambitions and plans. In the written statement to the Tribunal she states that she used to operate an import and export health food business and the English language barrier held her business back. The applicant made no specific reference in the written statement to her future employment opportunities.  At the hearing, the applicant stated that she has been operating a beauty salon, including selling health products in Hong Kong for six years. The applicant’s friend is managing the business in the applicant’s absence in Australia. Initially, the applicant told the Tribunal that the studies would assist in selling the health products in her business. However, later in the hearing, the applicant stated that she planned to return to Shanghai and assist her brother in operating his business in Shanghai and her language skills would assist in expanding and managing a franchise her brother is developing for that business.  The Tribunal considered that the applicant has given different accounts for her reasons for studying English and there is no consistency of purpose. The Tribunal also notes the applicant’s evidence that she is financially secure. The Tribunal was not persuaded that the applicant was seeking a student visa for the purposes of enhancing her career prospects and employment opportunities.

7. Throughout the course of the hearing, the applicant repeatedly referred to how much she liked Australia and wanted to stay in Australia.  For example, she stated Australia is very lovely and she wished to travel around Australia and it would be good at her age to study in Australia. After assessing the evidence, the Tribunal is satisfied that the applicant is seeking to remain in Australia as she liked the environment, lifestyle and other aspects of Australia and this was the reason, in conjunction with the presence of her daughter in Australia, to seek to remain in Australia.

8. The Tribunal also had regard to whether the applicant has any financial incentive to return to Hong Kong. She said in her written statement that she has adequate savings to support herself for the duration of her stay in Australia and that she is financially secure. At the hearing she also referred to receiving money from Hong Kong. The applicant’s evidence was that a friend is looking after her business in Hong Kong – and has now done so for an extended period. On the information available, the Tribunal is satisfied that the applicant is in a position to support an extended stay in Australia and has no strong economic ties as an incentive to return to Hong Kong or China.

9. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.570.223(1)(a).

10. The Tribunal has found the applicant does not meet an essential requirement of cl.570.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Miriam Holmes
    Senior Member