1511181 (Migration)

[2016] AATA 3166

1511181 (Migration) [2016] AATA 3166 (28 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jun Hu

CASE NUMBER:  1511181

DIBP REFERENCE(S):  BCC2015/718285

MEMBER:Lilly Mojsin

DATE:28 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 28 January 2016 at 4:33pm

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 5 March 2015 in order to study an Advanced Diploma of Management and a Bachelor of Business at the Australian Institute of Professional Education Pty Ltd.

3. The applicant was granted an initial Student (Class TU subclass 571) visa offshore on 22 October 2007 valid until 15 March 2010.

4. The applicant arrived in Australia on 18 November 2007. He has been previously enrolled in the following courses:

   ·     Preparation for High School Study (Beginner to Advanced)

   ·     Senior Secondary (Years 7 to 12)

   ·     UTS Foundation Studies

   ·     Diploma of Business

   ·     Bachelor of Business

   ·     Certificate III in Business

   ·     Diploma of Accounting

   ·     Certificate IV in Business

   ·     Diploma of Management – completed

5. The delegate decided to refuse to grant the visa on 30 July 2015.

6. 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).

7. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl. 573.223(1)(a) in Schedule 2 of the Regulations  because the delegate found it unlikely that the applicant will progress to study at the Higher Education level during his proposed stay onshore, the applicant's lack of academic progress, study history, potential circumstances in Australia, immigration history and lack of value of courses to the applicant's future indicating that the applicant is using the student visa application as a means to maintaining residence in Australia. The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

8. The applicant appealed that decision on 18 August 2015, attaching a copy of the Department decision to that application. The applicant appeared before the Tribunal on 2 December 2015 to give evidence and present arguments.

9. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

    CLAIMS AND EVIDENCE

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

13. The issue in the present application 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)    …

14. 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.

15. 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.

16. The applicant’s advisor provided a submission to the Tribunal. The advisor stated that the the applicant found it hard to catch up with other students when Studying for a Bachelor of Business at UTS. The applicant transferred to a Diploma of Accounting but discovered it required knowledge of maths which was too complicated for him. He changed to a Diploma course in Business Management at the Holmes Institute. He passed all units. His parents have a business in China and they desire their son to carry on their successful business. The applicant has decided to continue studies until he completes a Bachelors course. On completion of the course he intends to return to China to continue his parents business. In order to do so he needs to absorb more business management knowledge and practice. His parents provided him with 100% support and he only needs to focus on his studies.

17. The applicant provided copies of his CoE's indicating that the Advanced Diploma in which he is currently enrolled commenced in May 2015 and is due to end in May 2016. The applicant also provided a Confirmation of Enrolment for the Bachelor Degree, indicating that it is due to commence in July 2016 and will end in December 2018.

18. At the Tribunal hearing the applicant advised that he had been sent a copy of the relevant Ministerial Direction with the hearing invitation.

19. The Tribunal asked the applicant what aspects of the delegate’s decision he did not agree with. The applicant stated that he started to study Preparation for High School Study (Beginner to Advanced) at Frenchs Forest High School, Senior Secondary (Years 7 to 12). He obtained his HSC, he passed English, Chemistry but not Maths and Physics.  He applied to study at UTS Foundation Studies. He did not complete this course, he found it was too hard for him to catch up on and there is a lot of stress.

20. He went to Top Education to study for a Diploma of Accounting but it required maths, so he tried his best to catch up. He could not study. He then went to Holmes Institute and he completed Certificate IV and he has just completed a Diploma of Management.

21. He works in Australia, part-time only. He has not done much, he wants to learn a business model.  He presently works in a business where he sends emails out for rent and property management. Clients mostly speak English. He just started a few months ago, his family have a business in china, his father is a public servant, his mother has a business that transports good for other people internally and exporting overseas. The business in Guangzhou.

22. The applicant is single. He came to Australia when he was 18 years of age to study as Australia is good for students and higher education. The university gives a student the  opportunity to learn more things. When he goes back to China he might help his mother or run his own business, he is not sure of the type of business.   His family have supported him since he has been in Australia. The applicant owns his own home unit in Rhodes. He wants to finish his Bachelor degree and wants to complete a Masters. He wants to stay in Australia for some time as his family have a lot of expectations for him, he gets money from his parents to pay the loan.

23. When put to him that owning his own property suggested that he has a strong intention to remain in Australia, he disagreed. He said that after he finishes his course he might leave his unit.  If he has a strong intention to migrate to Australia he would have bought a house. He bought the unit last year in 2014.

24. In regard to the value of the course to his future, he thinks he will do better if he does a course before a Bachelors course. Since being in Australia he has been back to China in September 2015 as his grandpa was very sick.

25. When asked to describe the subjects he has been studying for in his Advanced Diploma he said that he cannot remember the subjects he started in May 2015. It was about financials, he does not know the name. When put that he does not seem to know anything about the course, he responded that he focused on the assignments. He could not recall any details of the assignments. He has passed 2 subjects but does not know the name. He failed one subject because he had a tooth problem. He will do better in a Bachelor course if he completes this current course of study.

26. When asked what the value of his course was to his future, including remuneration and career prospects in his home country, the applicant said that he is not sure what to do, the first choice is to help his mother but he will create a small business. The management diploma will be helpful to manage the people and staff in her company. An Advanced Diploma will form the foundation of management for his mother.

27. The said that he will sell his property when he finishes studies as his parents want him to go back to China. He has a brother who is still at school and he is a model for him. They bought him a property rather than rent an apartment in Australia, it is very expensive.

28. The applicant also provided a submission from his advisor. That submission outlined the applicant’s reasons for not being able to pass prior courses he had been enrolled in being his lack of maths knowledge and his fear of study. Also provided were copies of his bank statements, a copy of his IELTS result and a certificate from the Holmes Institute confirming that he has passed a Diploma of Management and an Academic Transcript dated 1 April 2015 providing details of the subjects he had passed.

    REASONS AND FINDINGS

29. The relevant subclass, for which the applicant applied to obtain a visa is Subclass 573.

30. The issue in the present application is whether the applicant meets the time of decision criterion in cl.573.223.

31. The Tribunal took into consideration the following matters when making its decision.

32. The applicant is a single man, from China, who has been in Australia since November 2007.  In relation to the applicant’s circumstances in his home country, the Tribunal places weight on the applicant’s parents and brother residing in China. He has no family ties in Australia. The applicant has travelled to China to visit his family and he has returned to Australia.

33. The Tribunal accepts that the applicant has struggled with some of his studies since arrival in Australia, due to a lack of maths knowledge and at times a fear of study. He works part-time and also receives financial support from his family in China to assist him to repay a mortgage. The applicant has been supported in Australia by his family in China and his own employment in Australia. He has studied a number of courses since arrival in Australia in 2007 and he has completed a Certificate IV in Business and a Diploma of Management in 2015.

34. The Tribunal places weight on the applicant’s purchase of a home unit in Sydney in 2014. When put to the applicant that purchasing a property in Australia indicated that he had a strong intention to remain in Australia permanently, he responded that it is cheaper to purchase a unit than to rent and he would have purchased a house in Sydney rather than a unit if it was his intention to remain in Australia. Whilst the Tribunal accepts that purchasing a unit may be cheaper than paying rent in Australia and when the applicant goes home he will sell his unit, nevertheless purchasing a home unit is factor suggesting that the applicant has an intention to remain permanently in Australia.

35. The Tribunal places weight on the applicant being unable to describe the subjects he is studying at the moment in his current course of study or to even provide any meaningful information about assignments recently completed. He could only respond that the subject was about financials, he does not know the name, he focused on assignments but could not recall any details.

36. The applicant claims that his family have a business in China and when he returns to China he might help his mother or run his own business, he is not sure of the type of business. Further he states that the management diploma he is currently studying will be helpful to manage the people and staff in his mother’s company. As the applicant was unable to describe the subjects he is studying the Tribunal is unable to be satisfied that his current course of study has any value to his future career prospects. The Tribunal places weight on the applicant’s lack of information about his current course when assessing the value of his course to his future, including renumeration and career prospects.

37. On the basis of the above, and having considered the relevant Direction No: 53 factors, the  applicant’s circumstances, immigration history, and in particular his inability to name the subjects he was studying or to describe recent assignments completed in his course, on balance, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. The Tribunal is satisfied the applicant is using the student visa program as a means of maintaining ongoing residence in Australia.

38. Accordingly, the applicant does not meet cl.573.223(1)(a).

39. 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

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

    Lilly Mojsin
    Member