1508265 (Migration)

[2015] AATA 3936

1508265 (Migration) [2015] AATA 3936 (23 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhuoqing MI

CASE NUMBER:  1508265

DIBP REFERENCE(S):  CLF2015/22091

MEMBER:Gabrielle Cullen

DATE:23 December 2015

PLACE OF DECISION:  Sydney

DECISION: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.

Statement made on 23 December 2015 at 5:33pm

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 12 April 2015. The delegate decided to refuse to grant the visa on 3 June 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. In a decision dated 3 June 2015 the delegate from the Department[1] refused to grant the visas because he found that the applicant did not satisfy the requirements of cl.573.223 of Schedule 2 to the Regulations as the delegate was not satisfied he was a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily. 

   [1] The Department decision was attached to the Application for Review.

4. On 22 October 2015 the Tribunal wrote to the applicant and invited him to attend a hearing on 23 November 2015. The letter, among other matters, requested the applicant provide an explanation of any gaps in his enrolment and any documentary evidence relevant in his explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 573.223(1)(a) and asked him to provide a written statement addressing this issue by referring to Direction 53, which was attached.

5. The applicant appeared before the Tribunal on 23 November 2015 to give evidence and present arguments. The applicant’s representative also attended the hearing.

6. The evidence presented by the applicant at the hearing, in documentary evidence and in a submission provided by the applicant’s representative is as follows in summary form.

7. The applicant is currently enrolled in a Bachelor of Business which runs from 13 July 2015 to 31 July 2017. Evidence from Holmes Institute indicates he has been exempted from 8 subjects, passed three and failed one subject.

8. The applicant arrived in Australia on a student visa on 6 September 2002 and held student visas until he applied for a subclass 485 visa in May 2008. In the period 2002 to 2008 he completed Senior Secondary High School, obtained his Higher School certificate, a Diploma of Business, and Certificate III and IV in Hospitality and Cookery.

9. In May 2008 he applied for a subclass 485 visa which was granted and valid until January 2011. He was then a dependent on his wife’s student visa and her subclass 485 visa until 18 April 2015. The relationship with his wife has since ceased and she has returned to China.

10. He has no family in Australia and his parents and entire family are in Shanghai, China. He has not worked in China and only completed part of his secondary schooling in China. He has no military commitments in China or civil or political issues which would present as an incentive not to return.

11. As to his employment in Australia, he worked managing reservations at the Parkview Hotel and then opened a restaurant called the Golden Pan in September 2012 which ultimately failed. He is now working part-time at a restaurant in Haymarket.

12. As to why he wishes to now study a Bachelor of Business he claims that he tried to run a business which failed. He claims he is now 31 and unlikely to be able to gain a place at a University in Shanghai at his age having regard to the overwhelming competition for places in tertiary institutions in Shanghai. His parents expect him to return to China with at least a Bachelor level qualification. He claims his father runs an architect business in China and his father earlier in 2015 asked him to return to China with a better education to help him run the business. He described the business at hearing and advised that there are 30 people in the business and that his role would be to market and manage the business. He admitted at hearing he had a different plan but his restaurant did not work out. He said that since discussing the matter with his father he wants to return to his business but needs a Bachelor degree. He said he wants to finish the degree and return to China.

13. At the hearing the Tribunal raised a number of concerns as to whether he is a genuine temporary entrant. It raised with him his length of time in Australia which appears to show stronger ties to Australia than China, that he has been enrolled in a range of courses and the value of this course to his future.

14. The applicant’s’ representative submitted that the applicant was a genuine student between 2002 and 2008, he was unable to obtain the necessary work experience under the subclass 485 visa and realizes he needs a future. He submitted that the applicant realizes he can’t study in China and needs a degree, which he will only be able to obtain in Australia. He repeated that he formed a recent plan with his family and they are supporting him in his study.

15. After the hearing the applicant provided documentation to indicate that the Shanghai Yuehua Design and Architecture Company are looking to recruit the applicant as there Commercial Assistant Manager after a remote interview. The letter indicates the applicant will return in mid-2017 and they are willing to retain the position until them. The letter requests the applicant be given time to complete his degree as this is the minimum requirement for a Commercial Assistant Manager

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. Having regard to the applicant’s current proposed course of study, a Bachelor of Business, the relevant subclass in this case is Subclass 573.

17. 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)         …

18. 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.

19. 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.

20. For the reasons that follow the Tribunal has decided to remit the matter for reconsideration. While it raised with the applicant concerns as to whether he is a genuine applicant for entry and stay as a student, particularly as to his length of time in Australia, and why at 31 he has begun a Bachelor of Business, it found him to be a convincing and credible witness at the hearing and accepts his reasons for studying in Australia as genuine and accepts that after completion of the degree he will return to China. In particular it accepts he is committed to study a Bachelor of Business in Australia, due to his age he could not achieve tertiary qualifications in China, his previous business failed and he has formulated a new plan in conjunction with his father to obtain tertiary qualifications, return to China and enter his father’s business as Commercial Assistant Manager.

21. The Tribunal is satisfied that the applicant is currently studying towards the completion of a Bachelor of Business to finish in 2017. It accepts he has completed approximately 3 subjects of the Bachelor of Business and has been exempted from 8. It found his evidence as to the course and its contents to be detailed. It found his evidence as to the value of the course to his future to be detailed and genuine. It accepts his evidence he is genuine in his wish to achieve tertiary qualifications in Australia as he would be unable to achieve a similar level of qualifications in China, due to his age. It accepts he has changed his career path, following his failed business in Australia and discussions with his father and accepts he needs the Bachelor of Business to return to China to work in his father’s business. The Tribunal finds the reasons as to why he wishes to continue to study the course he is enrolled in Australia as true. The Tribunal finds the applicant’s current enrolment and future plans supportive of his claim that he sees Australia as a temporary location in which to study.

22. The Tribunal also notes he has closer family ties in China than Australia, there is no evidence of military service commitments, or political and civil unrest which would present as a significant incentive for the applicant not to return to his home country.

23. While the applicant has applied and been granted a subclass 485 previously, this is a temporary visa. The Tribunal has concerns as to his length of stay in Australia but notes this is just one of a range of factors to be considered. There is nothing else in the applicant’s immigration history which is indicative that the applicant does not intend genuinely to stay in Australia temporarily.

24. 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. While it has some concerns, as noted above, on the totality of the evidence provided accepts he intends genuinely to stay in Australia temporarily Accordingly, the applicant does meet cl.573.223(1)(a).

25. 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

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

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

    Gabrielle Cullen
    Member