1506802 (Migration)

[2016] AATA 4429

1506802 (Migration) [2016] AATA 4429 (16 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bowen Jing

CASE NUMBER:  1506802

DIBP REFERENCE(S):  BCC2015/511826

MEMBER:Miriam Holmes

DATE:16 September 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 16 September 2016 at 4:19pm

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 13 February 2015. The delegate decided to refuse to grant the visa on 8 May 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.573.223(1) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had an intention genuinely to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 8 August 2016 to give evidence and present arguments. The hearing was conducted with the assistance of a Mandarin and English interpreter. 

5. The applicant was represented in relation to the review by his registered migration agent.

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

   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.

8. The issue in the present case 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. The Tribunal had regard to Direction 53 and the following matters in assessing whether the applicant intends genuinely to stay in Australia temporarily.

12. The applicant was born in 1992 in China, and is aged 24 years and is a citizen of China.

13. The applicant undertook his primary school and middle school education in China. The applicant undertook no work whilst living in China.

14. The applicant’s parents reside in Henan province near Beijing. The applicant has no siblings. The applicant’s father operates a drugstore selling Chinese and Western medicines. He has two employees working at the drugstore. The applicant’s mother works in the human resources section of a leather manufacturing company.

15. The applicant has an aunt and a cousin who both live in Australia. Those family members came to Australia approximately 16 years ago and the applicant’s cousin is aged approximately 24 years.

16. The applicant currently lives in an apartment owned by his cousin and does not pay any rental. The applicant has lived in this apartment for approximately 3 years. Prior to that the applicant lived in Melbourne city in a rented apartment.

17. On 28 August 2008 the applicant was granted a student subclass 571 visa until 15 March 2012. The applicant arrived in Australia on 6 September 2008 on the student visa. The purpose of this visa was to undertake secondary schooling in Australia. After arriving in Australia the applicant undertook a three-month English language preparation for secondary school course. Between 2009 and 2011 the applicant attended the Kilmore International School and undertook studies in years 10,11 and 12 and successfully completed the International Baccalaureate. The International Baccalaureate was awarded in February 2012.

18. After the applicant completed his secondary studies he enrolled in tertiary studies at RMIT. On 13 March 2012 the applicant was granted a student subclass 573 visa valid until 15 March 2015.

19. In 2012 the applicant enrolled in and commenced a Bachelor of Computer Science (security) at RMIT. In 2012 the applicant attempted to undertake eight subjects. However he only successfully completed one subject for the entire year, being mathematics for computing. The applicant was awarded low marks for subjects, including a mark of six in programming one, a mark of 32 in computer organisation, a mark of 16 in web programming and a mark of 11 in software engineering fundamentals and was not awarded any marks for the subject of database concepts. The applicant made very poor progress in 2012 in his Bachelor course, successfully completing only one subject out of eight subjects. The applicant confirmed that he only passed one subject and that each of the eight subjects were six months subjects.

20. The applicant told the Tribunal that he pursued the Bachelor of Computer Science course as he considered that it would help his family’s business because it needed people who had technology and software knowledge. He stated that he had no pre-knowledge or understanding of computer science and it was hard for him at the start. He said he studied and tried to catch up but he did not obtain a good result. The applicant stated that he tried to talk to the school about the difficulties in the course and that it was not the right course and RMIT advised him that he could not change College, although he could change courses and they suggested that he undertake a Bachelor of Technology in computing studies where he could undertake other subjects such as marketing and macroeconomics.

21. In 2013 the applicant transferred courses and he enrolled in and commenced a Bachelor of Technology (computing studies) at RMIT. The applicant stated that he wanted to see if he could do better in the subject areas of the course and these would also be relevant to his family’s business.  The applicant studied the Bachelor of Technology for 18 months, 12 months in 2013 and the first six months of 2014. In 2013 the applicant successfully completed two subjects out of the seven subjects that he undertook. The applicant passed marketing principles and he obtained a credit in introduction to information technology. The applicant did not successfully complete the subjects of introduction to programming, database concepts, Japanese 1 and Japanese 2.

22. In 2014 the applicant attempted four subjects in the first six months in semester one of the Bachelor of Technology course and he successfully completed one subject, namely macroeconomics 1.

23. On 29 August 2014 RMIT excluded the applicant from pursuing any further studies in the Bachelor of Technology (computing studies) course. The applicant confirmed that he was excluded due to his previous academic results. On 19 January 2015 RMIT reported the applicant for unsatisfactory course progress.

24. The Tribunal asked the applicant about his performance in 2013 and 2014. He stated that after the first year’s performance his parents argued with him and he was very stressed. He stated that he tried to study and have a normal life but it was stressful and he studied late and could not sleep. He felt sorry for his parents as they spent a lot of money for him to study overseas.  He said it was two years ago and he is not sure exactly why he failed so many subjects. He said he did attend the courses and it was his logic that he would try and catch up with the course and read the books. But he could not catch up in the course and he had no assistance from his classmates who are not of the same background and did not want to help him. He stated that some of the difficulty was that he needed to pass exams and assignments, in some instances he failed the final exam and therefore failed the subject. The applicant observed that the course was related to information technology and he tried it out, but it was not the right course for him. The Tribunal asked the applicant why he did not consider changing to a different university and he responded that he did not know that he could. He said that his parents were still encouraging him and believed in him and that he could do it.

25. The applicant stated that he was issued with a show cause notice from RMIT and he responded. The applicant stated that he appealed the RMIT decision to exclude him from the course to the ombudsman. A person from the student union assisted him to write his appeal letter to the ombudsman. The ombudsman responded stating that he could not help the applicant and in January 2015 he was excluded and RMIT subsequently refunded the course fees.

26. The applicant states that whilst he was awaiting the outcome of the show cause notice and the appeal to the ombudsman he continued to undertake studies at RMIT in three subjects - building IT systems, introduction to programming and introduction to public relations. The applicant confirmed that he was not formally enrolled in the Bachelor’s course at this time, although he did pursue his studies. The applicant stated that RMIT gave him study rights and he paid fees. The applicant provided the Tribunal with a copy of a letter sent by email in December 2012 addressed to “Dear Building IT Systems student, Please find below a breakdown of your marks in this course.” The letter notes the student is Bowen Jing and that he achieved a distinction in the building IT systems course. The applicant stated that it was not included on his academic transcript as he was not enrolled in the course at that time and therefore did not receive any result for the subjects. He also stated that his education agent, Mr Pan Xu, contacted the lecturer in order to obtain the result of the subjects that he undertook in second semester 2014. The education consultant sent the result to the applicant’s agent.  

27. After the hearing, the applicant provided a series of emails to RMIT in December 2014 and January 2015 regarding his results for Semester 2, 2014. These emails note that due to an active case with either the University Appeals Committee or Victorian Ombudsman, RMIT are unable to release the results for semester 2, 2014. Further, the emails note that following final confirmation of exclusion for Semester 2, 2014 the semester results have been removed from the RMIT records.

28. On 13 February 2015 the applicant lodged the student visa application under consideration by the Tribunal. On 18 February 2015 the applicant enrolled in a Bachelor of Professional Accounting at the Holmes Institute and the course was to commence on 16 March 2015 and finish on 31 July 2017. The Tribunal queried why the confirmation of enrolment was not obtained until after the student visa application was lodged and the applicant replied that his agent was responsible for handling the confirmation of enrolment for the purposes of the student visa application.

29. The Tribunal observed during the hearing the delegate’s concern that the current student visa application was lodged with the purpose of the applicant seeking to remain in Australia. In response, the applicant stated that in his last year at RMIT he started to choose other courses in the economics area, and he realised that information technology and computing were not the right courses for him. So he decided to study professional accounting. He stated that it was important for the family to take charge of the accounting department of the business. He said the purpose of applying for the course was to study this course and he hopes once it is finished, to go back to the family business and to be helpful. He wants to obtain knowledge to help his family business. The Tribunal noted that the family business (the drug store) was a small business with only two employees and that normally small businesses would contract out to a bookkeeper or an accountant to undertake the accounting services relevant to the small business. At that point the applicant stated that he “might” work in the company that his mother works at as that is a family owned company and his education background would help understand money in that company. He said that the company would consider a family member more reliable to assist in relation to the accounting services. The Tribunal notes this was the first indication from the applicant that the applicant was not planning to work in his father’s business, but rather another family member’s business.

30. At the hearing the Tribunal noted that in the applicant’s statement dated 17 March 2015 he wrote to the Department and stated that he planned to work in the family business. In that statement of 17 March 2015 he made the following comments:

    “My family has a business in China and I will need to inherit our family business after graduation. Therefore, after discussing with my parents, I choose to study Bachelor of Accounting as accounting is the core of any organisations and I am very talented with numbers.  Bachelor of Accounting offers a range of business and accounting related courses that will help me to understand business structure, accounting systems and so forth. With those basic knowledge, I am confident that I will be able to manage my father’s business with a great start. For my study plan, I have enrolled in Bachelor of Professional Accounting from 16/3/2015 to 31/7/ 2015. I choose to change my previous Bachelor study and now study at Holmes Institute, is mainly because of my future career of family business in China and also Holmes’ offering great education services from highly experienced lecturers.… They (referring to his parents) would like to complete Bachelor of Professional Accounting and return to China to work in their company… Please kindly note that the applicant is from a wealthy family. Bowen Jing hopes to go back to live with her (sic) parents and inherit his parents’ business. His parents supported his study financially and emotionally. They hoped their son could complete Bachelor degree in Australia and inherit their business in China.”

31. At the hearing, when the Tribunal queried the applicant that he had previously indicated to the Department that he was planning to inherit and work in his family’s business, being his father’s business, which  was different to the evidence that he might work for the business owned by another family member, the applicant provided the following response. He stated that he thinks that he did not explain himself clearly in his email to Department on 17 March 2015. He stated that his father does run a pharmacy but he also has shares in the leather manufacturing business that his mother works in, as his father is a shareholder. He stated that his uncle is the director of the leather exporting company that is his main company in China and it has other offices overseas, including in Australia near Geelong. He said the office in Australia imports goods. The applicant stated that he had not worked for the company in Australia. He said that he is currently studying and when he finishes his studies he will return to China and work in this other company.

32. The Tribunal noted that in his statement of 17 March 2015 he notes that he will inherit his parents business not his uncle’s business. In relation to this particular aspect of the applicant’s statement he responded that he may not have been able to explain accurately what he was meaning because of his English language skills. He stated that when he wrote down his understanding he was talking about the family business. The Tribunal commented that perhaps the applicant had changed his account of which business he was going to work in because the Tribunal had highlighted that there were only two employees in his father’s business which indicated that there would not be the need for his accounting services. The applicant responded that his mother works in the leather manufacturing company and it is a family company and he will help the leather export business, and his father has shares in that company, and this will help his father. The applicant offered at this point to obtain a letter stating that his mother worked at this business and also to obtain a reference letter from the company stating that they would need someone from his background to work at the company. The Tribunal asked the applicant how long the leather company had been operating for and he responded that he was not quite sure how long it had been operating running for. He said it had not gone public and it was not registered in Australia. He said the business start off as just a group of people and then an office and then they obtained a factory and then it became bigger. He stated that the office in Geelong was established before his aunt came to Australia. He repeated that he has not started working in the company and that he would finish his study first and then participate in the business. The applicant stated that his mother had worked in the business for at least 10 years. The Tribunal noted that in the period of 10 years it was open to that leather business to obtain the services of an accountant rather than a family member and he responded that it’s not as simple as that when it comes to financial affairs and family members want an inside person, and a professional accountant might make one loophole and this would make a loss for the company and they would not know.

33. After the hearing, the Tribunal received a letter from Mr Hui, Chief Executive Officer of Henan Prosper Skins & Leather Enterprise Co. Ltd. The author states that he would like to write to support the applicant to complete his Bachelor of Professional Accounting at the Holmes Institute. He notes the company was established in 1994 and operates in the developed regions of the world and exports to Australia, Europe and America. The author notes that the applicant’s father and other family members are the main owner of the business. The author states that before the applicant commenced his Bachelor of Professional Accounting at Holmes Institute they had a detailed discussion with him and developed a detailed plan for his career. “We required him to choose accounting as his major in order for him to be familiar with western accounting principles, because being familiar with western accounting system will definitely add great value to our finance department of the company in China and will also enable us to better control our branches in Western countries. We plan that he work as the Assistant of General Manager in financial department of Henan Prosper Co Ltd in China after graduation.”

1. Similarly, after the hearing, the Tribunal received a written submission from the applicant. It stated in part that before he enrolled in the Bachelor of Professional Accounting he discussed with his family and he had a detailed discussion with his family and the owner of his father’s family business and developed a detailed plan for his career. He chose to study accounting and plan to work as the Assistant of General Manager in the financial department of Henan Prosper Co Ltd in China after graduation.

2. The Tribunal had regard to the applicant’s progress in his current Bachelor of Professional Accounting course which he commenced in March 2015. At the hearing, the Tribunal had the Statement of Results issued on 1 August 2016 by Holmes Institute. In semester one the applicant undertook four subjects and successfully completed all four subjects. In semester two of 2015 the applicant studied four subjects and passed only one subject. In semester three between November 2015 and February 2016 the applicant studied three subjects and only passed one subject in that period. In semester one of 2016 between March 2016 and June 2016 the applicant had passed one subject and the examination was deferred in the other subjects two subjects, Management Accounting and Corporations Law, although he was awarded a mark of 11% and 23% respectively. The applicant explained that he is waiting for the subject mark outcome for the subjects in management accounting and corporations Law. The Tribunal noted at the hearing that two marks have been awarded however it deferred making a decision and gave the applicant until 18 August 2016 to provide the newest results.

3. On 18 August 2016 the Tribunal received an “interim transcript” for the Bachelor of Accounting dated 17 August 2016 and it noted that the applicant had failed the Management accounting course and passed the Corporations Law subject with a mark of 57%.

4. The Tribunal queried why the applicant did not pursue studying accounting in China given that he would be working in the Chinese market. The applicant stated that he came to Australia to undertake his high school education and he was to obtain a certificate from an Australian university. The Tribunal noted that if he studied accounting in China that he would understand the accounting systems in China which would be appropriate if he was working in China. The applicant replied saying he was not going to be an accountant in the company for sure, and all the study will be an experience for him. The Tribunal queried when he first discussed working in the company in China. He stated that after completing high school and before commencing university they discussed about him returning to the business in China and helping the family in the business. He said that firstly he pursued the IT studies as that would be good for him and the company but it was not the right course, so then he chose the professional accounting course.

5. The Tribunal also had regard to the applicant’s work history. Whilst in Australia the applicant states that he has worked in two part-time jobs for short periods. In January 2012 he worked for one month as a waiter at a Noodle Kingdom part-time. In March 2015 he worked for one month as a kitchen hand in an establishment in Lygon St. He states that he stopped that employment so he could focus on his studies. The applicant states that he has been reliant on his parents to provide him with money to meet his expenses in Australia.

6. The Tribunal notes that the applicant declared he had a de facto partner in China in his student visa application. At the hearing, the applicant advised that he broke up with his de facto partner in November 2015.

7. The applicant has returned to China on multiple occasions and he confirmed the dates in the movement records were accurate. He last returned to China in November 2013 for a period of three months and returned to Australia in February 2014.

8. The Tribunal asked the applicant about why it would be satisfied that he is only in Australia for a temporary stay given that he has been living in Australia for the last eight years. The applicant stated that he came to Australia for study only and was a full-time student.

9. The Tribunal expressed its concern that it may not be satisfied the applicant intends genuinely to stay in Australia temporarily, given that he has been living in Australia for eight years, and that he has not made academic progress in his tertiary studies, and he had a period when he was excluded and not enrolled in a course at RMIT, and that he may be seeking to use the student visa program to maintain residence in Australia.  In response the applicant stated that he had stayed in Australia for a long time and wanted to finish his studies and to obtain a certificate from Australia. He did not want to be sent home with nothing from Australia, he did not want to waste time. He proposes to continue his studies and complete his course in July 2017. He stated that he has 10 subjects left and three more semesters and he is confident that he will finish his course by July 2017.

10. The Tribunal expressed its concern that he would successfully complete his course given that he only completed one subject in semester two and one subject in semester three (as at 1 August 2016) and his history demonstrated that he was only capable of successfully completing one subject per semester. The applicant responded stating that when he has been studying these courses he has had to go up a level, and they are more complicated and he had not found the right study method. He stated that in the last semester (semester one of 2016) he was very prepared and he considers that he has done very well in applied business statistics. He only undertook three subjects in the first semester of 2016 because he had only passed two subjects of the course in the previous two semesters to that point and so they reduced his study load. The applicant responded that he is currently enrolled in four subjects for the current semester. He said that there are three semesters left and he will his able to do four subjects per semester so he will complete the 10 subjects by July 2017. He went on to note that he has found the right study method.

11. After the hearing, the applicant submitted in a written statement that he is enrolled in 4 subjects for semester 2 of 2016 and that he will complete those four subjects in 2016. He will then have 7 subjects to complete and he plans to complete these subjects and the course by July 2017.

12. At the hearing, the Tribunal noted that he has now been studying for six years in the Bachelor courses and he has not successfully completed a course in that time. The applicant stated that he has wasted three years and he wants to make up time and complete this course and make up for the loss. He said that people make mistakes and in that past three year period he did make mistakes, that he has accumulated experience and he has found a course that he can complete and he is capable of completing. Consequently he wants to pursue studying the course to make up for the three years he lost undertaking the information technology course.

13. He also stated that he felt guilty to his family who want him to complete a course and then work for them. He said he did not complete high school in China and did not attend university in China so he needs a Bachelor degree from Australia, otherwise it will be impossible for him to get a job and he will face shame. The Tribunal queried why he could not go back to China and work in his father’s drug store and inherit his father’s business. In response the applicant stated that as he explained earlier, his father’s job is to manage the pharmacy but he is a shareholder in the leather company and his goal is not to run the pharmacy, he wants a better future than this. The applicant again repeated that he had not checked himself properly in the letter that had been provided to the Department. He stated that if he does not obtain a Bachelor’s degree he does not know what he would do with his future.

14. The Tribunal has had regard to the various matters above and on balance is not satisfied that the applicant intends genuinely to stay in Australia temporarily.

15. The applicant does have ties to China and an incentive to return to China. The applicant’s parents currently live in China and he has regularly returned to visit his parents in China since 2008. His father owns a drugstore business and is a shareholder in his uncle’s leather exporting business. The applicant successfully completed his secondary schooling in Australia and he demonstrated a capacity to study at secondary school level and showed a commitment to his studies at that time. 

16. The applicant has now been in Australia since 2008 and has established himself in Australia over the last eight years. Australia has been his primary residence. The applicant is seeking to remain in Australia for another year to July 2017 which would bring his total residence in Australia to approximately 9 years. The applicant’s history of residence in Australia over the last eight years indicates that the applicant does not intend genuinely to stay in Australia temporarily. 

17. The applicant has attempted tertiary studies in Australia since 2012. However he has been unable to progress satisfactorily in his tertiary studies. The applicant has a very poor academic record. Further he had a period in 2014 where he was excluded from study from RMIT due to his poor academic performance.

18. In 2012 the applicant undertook a Bachelor of Computer Science at RMIT and only successfully completed one subject in the entire year, out of seven subjects. He then changed course to another information technology related course and in 2013 only successfully completed two subjects out of seven subjects that he enrolled in. In 2014 between January and August 2014 the applicant only successfully completed one subject out of four subjects for the course which he was enrolled in. From 29 August 2014 the applicant was excluded from further studies at RMIT. The applicant states that he continued to study between August 2014 until the end of the academic year and provided results in one course that he obtained a distinction.  The Tribunal notes that this study was not recognised by RMIT in its transcript of results. In any event the applicant only successfully completed one subject in the semester which was consistent with his previous academic results in 2012 and 2013 and semester 1 of 2014.

19. In 2015 the applicant commenced a new course, a Bachelor of Professional Accounting, and whilst he performed well in semester one of 2015, thereafter he only successfully completed one subject in semester two of 2015 and one subject out of three subjects in semester three of 2015, and on the updated information available to the Tribunal he successfully completed two subjects out of three subjects in semester one in 2016. In semester three of 2015 and semester one of 2016 the applicant had a reduced study load. The Tribunal considers that the applicant’s academic record demonstrates that he has been unable to successfully pursue studies at a tertiary level in Australia and has some reservations that he has a genuine intention to stay temporarily in Australia to continue to pursue his studies. In light of the applicant’s academic history and the reduction in his course load in recent semesters, the Tribunal does not share the applicant’s confidence that he will successfully complete his Bachelor studies at Holmes Institute within the course time frame by July 2017.

20. The Tribunal considers that the applicant’s poor academic record since 2012 in two distinct tertiary courses and his exclusion from studies indicates that the applicant does not intend genuinely to stay in Australia temporarily for the purposes of study, but rather he is using the student visa program to maintain residence in Australia.

21. The Tribunal also took into account that the applicant has changed courses and the reasons for the change in courses. In the applicant’s statement dated 17 March 2015 provided to the Department, the applicant specifically referred to pursuing his studies in accounting to assist in his father’s business. At the commencement of the hearing the applicant described his father owning a drugstore business with two employees. During the hearing the applicant described about wanting to help the family business and he referred to pursuing the computer studies to help the family business and when he was unsuccessful in those studies he then pursued accounting studies in order to assist the family in the accounting department of the family business. The Tribunal highlighted its concern about the relevance of his study and the necessity of his study to the family business in the drug store when his father only employed two persons and noted that usually small businesses would contract out business related accounting to a bookkeeper or an accountant. It was only at this point the applicant indicated that he “might” work in a leather manufacturing company that his mother works in and which he says is a family business because his father has shares in this business which is operated by his uncle.  Initially, the applicant stated that he “might” work in this other family business and that he had not worked for this business despite it having an office in Australia, and the applicant then went on to describe how he would assist the family business with his accounting knowledge. When the Tribunal highlighted that the business had been operating for at least 10 years (on his evidence) and the Tribunal had some reservations that the family leather business required his accounting knowledge he then referred to simply having relevant knowledge and experience and that he was not sure he would be the company accountant. Later in the hearing, when discussing why he did not study accounting in China as it would be more appropriate if he was working in China, the applicant replied saying he was not going to be an accountant in the company for sure, and all the study will be an experience for him . When the Tribunal asked the applicant when he first discussed working in the company he told the Tribunal that is was after he completed school and before he commenced university. After the hearing, the Tribunal received the letter from Mr Hui.

22. The Tribunal has significant reservations about the applicant’s evidence regarding the purposes for his study to assist the family business, namely the leather manufacturing business, in China. He was quite clear in the initial statements to the Department that he was referring to his father’s business and that he would “inherit his parents’ business”. However when the relevance of his studies in his father’s drug store business was questioned at the Tribunal he then referred to another business being his uncle’s business as the family business by virtue of his father’s shareholding interest. He initially said he “might” work in in his uncle’s business. Later, when questioned why he did not study accounting in him if he was going to work in China, he replied that he was not going to be an accountant in the company for sure. In contrast the letter from Mr Hui states that the applicant “will” work as the Assistant of General Manager in the financial department. In the applicant’s written submissions after the hearing he also referred to working in that position. There was no mention of this position during the hearing or in the materials lodged prior to the hearing. After reading the statement dated 17 March 2015 the Tribunal clearly understood the applicant would work with his father so he “can manage my father’s business with a great start.”  After the hearing, the Tribunal was left with the impression that the applicant mentioned his uncle’s business as a possibility because the Tribunal questioned the genuineness of the applicant’s evidence he would work in his father’s business. The Tribunal did not accept the explanation that the applicant was unable to express himself clearly in his statement dated 17 March 2015. The letter from Mr Hui did not alleviate the Tribunal’s concerns.

23. Further, the applicant gave evidence that they first discussed him working in the company after finishing school but before commencing university. In contrast the letter from Hui states that before the applicant commenced his Bachelor of Professional Accounting at Holmes Institute they had a detailed discussion with him and developed a detailed plan for his career.

24. In addition, the applicant could not provide a cogent explanation during the hearing as to why he could not study accounting in China, yet Mr Hui set out the need for the applicant to have an understanding of Western accounting systems. Whilst, knowledge of western accounting systems may be of value to the leather business, the applicant was not able to provide any such response to the Tribunal when asked and seemed to retreat from his evidence that he would work as a company accountant when the relevance and appropriateness of studying accounting in China was raised.  

25. Finally, the Tribunal has some reservations as to the genuineness of the employment offer given that it is from a family member, and it was not mentioned in any materials prior to the hearing.

26. The Tribunal has serious reservations that the applicant intends to pursue studies with a view to returning to China to work in his uncle’s business. In this regard Tribunal also took into consideration the applicant has not undertaken any work in this business whilst in Australia and this would appear to indicate that he does not have a long-term intention to return to China to work in his uncle’s business.

27. The Tribunal also took into consideration that the visa application was made approximately one month prior to the current student visa expiring, when the applicant had already been excluded formally from study for a period of seven months from the course with which he was enrolled for his previous student visa at RMIT, and that the confirmation of enrolment was only obtained five days after the visa application was made.

28. The applicant appears to have no particular financial ties to China or to Australia and therefore the applicant does not appear to have any financial factors as an incentive to return to China or to remain in Australia. The applicant’s parents have been prepared to financially support the applicant to remain in Australia for the last eight years and he has been able to remain in Australia for an extended period and it is proposed they continue to support him until July 2017, totalling a period of nine years of financial support to remain in Australia. In addition, the applicant has been living in his cousin’s apartment in Melbourne rent free for the last three years. 

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 not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.573.223(1)(a).

30. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. 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

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

    Miriam Holmes
    Senior Member