1509178 (Migration)

[2016] AATA 4528

1509178 (Migration) [2016] AATA 4528 (13 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lian Ivy Zhou

CASE NUMBER:  1509178

DIBP REFERENCE(S):  BCC2015/1128027

MEMBER:Adrian Ho

DATE:13 October 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 13 October 2016 at 2:44pm

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 15 April 2015. The delegate decided to refuse to grant the visa on 23 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. 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.

4. The applicant appeared before the Tribunal on 12 October 2016 to give evidence and present arguments.

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.

7. Where used in this decision:

   a.The applicant refers to the first-named applicant;

   b.COE refers to Certificate of Enrolment;

   c.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   d.VET refers to Vocational Education and Training;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   g.IELTS refers to the International English Language Testing System.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Genuine Temporary Entrant

9. A major 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)     …

10. 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.

11. 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.

12. At hearing, the applicant was:

    a.Given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;

    b.Informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;

    c.Informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.Given an overview of the considerations laid out in Direction No.53 as summarised above;

    e.Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the tribunal hearing;

    f.Informed that all subclasses of the Class TU visa have equivalent ‘genuineness’ criteria, and that if the criterion was not met, it would likely not be met for each of those subclasses.

    The Tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Findings

13. On the applicant’s evidence, and by reference to relevant considerations laid out in Direction 53, the applicant’s oral evidence, and written material provided by the applicant to the Department and tribunal, the applicant has had, and continues to have, incentive to cease residence in Australia:

    a.The applicant had reasonable explanations for why the applicant chose Australia as a study destination, for valuing Australian education and the experiences that brings, and for having made a selection of education providers;

    b.The applicant has close family members and friends outside Australia, in particular in Hong Kong;

    c.The applicant owns property in Hong Kong and Shenzhen, China

    d.The applicant does not have close family members in Australia;

    e.The applicant has articulated a plan to utilise the skills and knowledge gained in Australia in pursuits outside Australia (f.22);

    f.That plan is to improve on the pay she gets as a hair and beauty worker in Hong Kong, and as a clerk at Kaisar Industrial Company, accompany associated with her aunt (DIBP file f.8).

14. The applicant gave evidence at hearing that she was now 41 years old, having completed high school in 1992 after which she worked in part time retail jobs and in a supermarket, before taking hair and beauty training in 2002-2003 and then working part time again. 

15. Her proposition at hearing was that she wished to study English so that she might get better jobs back in Hong Kong.

16. Based on her oral evidence, she came to Australia on a visitor visa and applied for the student visa from February 2015, although she does not recall exactly when.  She describes in her written material attempts to study English at ‘AICT’ (f.22) but conceded at hearing that those studies in 2015 did not result in a completed course.  On her evidence, she stopped studying after her visa application was refused.

17. The applicant entreated the Tribunal to accept that she did not continue studying because the student visa application was refused and  she did not know if a student visa would ultimately be granted.  The proposition here is that if a choice is made to continue studying, the effort and fees that go into that might ultimately not yield a qualification.

18. As suggested, the Tribunal considers that even if only half of the studies were complete, the applicant would nonetheless gain skills and knowledge from having studied the course and participated in the learning exercises, which should, on the claims made, have value to the applicant’s future.  As suggested, a choice not to study, when there was no legal bar to studying, suggests that the applicant might be more interested in the substantive student visa, than in the study itself.

19. The applicant claimed that when the visa application was refused, the applicant did not know that study rights were retained on the Bridging Visa A granted for the purposes of the tribunal review.  As suggested, the Tribunal considers that it is a simple and uncomplicated step for a motivated student who intends to acquire skills and knowledge in a temporary stay in Australia to clarify whether study rights are held; for example, by making a simple call to the Department, or consulting the Department’s online visa entitlement service, VEVO.

20. As suggested, the Tribunal considers the applicant’s lack of interest in study entitlements suggests a lack of interest in the study itself which casts doubt on the value of the courses proposed to the applicant’s future. 

21. The result of the applicant’s conduct is that for a large portion of the latter half of 2015, she did not study.  She said she did nothing and lived with her Brazilian boyfriend, who was also a student.  She conceded that as her boyfriend was here, he was no particular incentive for her to leave Australia.

22. On the evidence, she did not recommence study until April 2016 when she started a 27-week general English course which ended in October 2016 where she attained the ‘beginner’ level of proficiency (f.33).

23. In her evidence she was quite vague as to whether she would propose the certificate IV in business she mentioned in her statement at folio 22.  She said she may or may not.  As suggested, the Tribunal did not foresee her tackling that course until she had studied substantially more English and had doubts she could complete the business course in the next year as she suggested.  She insisted that her parents already wished for her return to Hong Kong, and that she would leave after a year and return to her family in Hong Kong, and to property she owned there.

24. The applicant resisted the proposition that property was easily sold and served as no distinct incentive for her to cease residence in Australia.

25. She resisted the proposition that she was now 41 and had not achieved career progression in her part time work in hair and beauty, with supermarket employers, and in her clerical role in Hong Kong, which was, the tribunal noted, well-known for being an expensive place to live and a competitive work environment.

26. She resisted the proposition that instead of proposing study in Australia which was of value to a return to Hong Kong, she might in fact intend to make a new start in Australia, and to wish for prolonged stay here.

27. As suggested, her lack of interest in her study rights after her visa was refused, resulting in her lack of study in an area she claims holds value to a future outside Australia, suggest that the applicant was content to remain in Australia.  Her attitude that she would not study when it was unclear if she would be granted a visa to be allowed to complete a course is inconsistent with her taking up study in April 2016, while awaiting the tribunal.

28. As suggested, the Tribunal considers that the applicant’s earning potential in Hong Kong had been poor, and would remain that way into the foreseeable future, nor is it likely to improve greatly were she to acquire a functional level of English, which on the evidence, she has not.

29. For the above reasons the applicant has not demonstrated, by her own conduct, that the value of study originally proposed with her visa application is of sufficient value to her future that she was sufficiently driven to study and to discover if she had study rights.  Those doubts are not displaced by her completion of her first basic English course in the last six months.

30. The tribunal considers that the reason the applicant was not more curious as to whether she could study on a bridging visa A was because it was not the study that held value to her, but rather her ability to await the tribunal lawfully on a bridging visa, which she already had done by virtue of the application for review.

31. As suggested, the Tribunal finds that the applicant applied for the visa to prolong her stay in Australia into the future, and not because the study proposed holds distinct value to a future intended to be outside Australia.

32. The Tribunal therefore rejects the central claim: that the applicant intends to stay temporarily to acquire skills and knowledge to be put to use outside Australia.

33. 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).

34. 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

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

    Adrian Ho
    Member