1515328 (Migration)

[2017] AATA 2652

1515328 (Migration) [2017] AATA 2652 (30 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515328

MEMBER:Mark Bishop

DATE:30 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 30 November 2017 at 10:54am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Completed High School in Australia –Applied for a partner visa – Withdrawal of sponsorship – Current wife seeking permanent residence – Medical condition – Not a genuine temporary entrant – Intention to remain permanently

LEGISLATION
Migration Act 1958 ss 66(1), 65, 359AA, 494B, 499
Migration Regulations 1994 r 2.16(3), Schedule 1 Item 1222 Schedule 2 cls 572.223, 572.223(1)(a)

CASES

Collector of Customs v Brian Lawlor Automotive Pty Limited (1979) 24 ALR 307
Singh v MIAC [2010] FMCA 1000

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 6 August 2015. The delegate decided to refuse to grant the visa on 26 October 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.572.223 (1) (a) of Schedule 2 to the Regulations because the delegate was not satisfied the applicant intended genuinely to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 25 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [wife]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented by a Migration Agent (MA). The MA made submissions at the conclusion of the hearing.

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 572.

8. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(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 applicant had been resident in Australia since August 2006 a period of more than 11 years. He completed his secondary schooling in December 2008. Thereafter until the present time the applicant was enrolled in both VET sector and the HE sector.

12. The applicant provided a copy of the decision record to the Tribunal. The applicant also submitted a copy of his PRISMS record to the Tribunal.

13. The hearing was originally set down for hearing on 4 October 2017. The MA was not available on this day and requested an adjournment. The Tribunal granted the adjournment and the matter proceeded the following day.

14. Two working days prior to the hearing the MA requested a copy of the departmental file of the applicant as it had been a long time since the lodgement of the application. The Tribunal complied with this request.

15. The Tribunal wrote to the applicant on 27 September 2017 requesting he provide four sets of document prior to the hearing. Those document were (1) a copy  of his current Certificate of Enrolment (COE) (2) documents showing current enrolment in a course (3) documents showing attendance certificates, academic transcripts and certificates of completion of courses and (4) an explanation of any gaps in enrolments and documentary evidence relating thereto.

16. The applicant provided a COE for enrolment in a Bachelor of Business at [an institution] for the period 20 November 2017 until 30 June 2020. The applicant had previously provided a COE in the same degree at the same institution for the period 31 July 2017 until 30 June 2019. The applicant had withdrawn from this latter course in mid-August 2017, shortly after enrolment. The Tribunal inquired as to the reasons for this withdrawal.

17. The applicant advised in a written statement in the period late July 2017 until mid-August 2017 he had been unwell, was exhausted, had considerable build-up of stress and anxiety, poor sleep, acute dermatitis missed the commencement of the course and did not attend class.

18. The applicant did not provide any medical certificates or other relevant evidence to support this statement. The applicant did not provide any evidence he had sought a deferment from his enrolment or sought counselling or professional assistance.

19. The Tribunal conducted the hearing on 25 October 2017. On 1 November 2017 the applicant provided to the Tribunal a Statutory Declaration (SD). This SD outlined repeated instances of domestic violence suffered by the applicant as victim, with supporting documentation and photographs.

20. This SD also contained a medical report from [a]Central Clinic which outlined the diagnosis (multiple skin abrasions and bite wound), prognosis (all injuries very likely healed) treatment (oral antibiotics for bite wound), likely cause (applicant reported assault by girlfriend) and other matters (applicant reported assault to police and obtained intervention order against his girlfriend).

21. This medical report did not draw any linkage, make any connection or draw any conclusion from the domestic violence attack and any period of study during 2016 or 2017.

22. Critically in describing the impact of the violence on himself the applicant failed to note any connection or linkage between the domestic violence incidents/s and his study outcomes in this period. In fact it is difficult to see a causal relationship as in this period 2015-June 2017, his study progress was generally successful.

23. Instead the applicant in a written statement on 1 November 2017 sought to draw a conclusion as to his character. The applicant stated while defending police charges ‘he had the character and presence of mind to persevere with and to complete his then studies… and this personal response may be considered as (nonconventional evidence) of him having the qualities and attributes of a genuine student’ (Tf: 102).

24. The applicant went onto say the success in recent 2 years of studies ‘shows him in a new and positive light and as someone who can deal with life’s unwelcome challenges and also get on with his studies’.

25. The Tribunal has considered this submission. The Tribunal is satisfied that the applicant was affected and distressed by the circumstances of the breakdown of his de facto relationship and subsequent court proceedings. The Tribunal notes the charges were withdrawn by Victorian Police on [date] November 2016 at [a]Magistrates Court and the applicant was awarded costs. The Tribunal notes the applicant was able to lodge maintain and argue a review application for a Partner visa in this period.

26. The Tribunal is not aware of what is meant by ‘unconventional evidence’. The Tribunal acknowledges the applicant did study whilst defencing police charges. The Tribunal notes that after July 2017 the applicant’s prior dominant attitude of inattention to study reasserted itself. The Tribunal considers that whilst this change of approach to study in this period was for the first time that of a genuine student in the end it was only temporary.  The applicant did not provide any evidence he had sought a deferment from his enrolment or sought counselling or professional assistance in the period after mid- August 2017 until the present time.

27. The applicant advised he went overseas briefly around this period. The Tribunal notes the alleged illness referred to in paragraph 17 did not prevent this travel. The Tribunal notes the applicant was well enough to get married in October 2017.

28. The applicant did not have a valid COE from completion of his Advanced Diploma until the issue of a new COE on 10 October 2017.

29. The applicant provided a certificate of graduation and relevant course transcript for an Advanced Diploma of Leadership and Management. This course concluded on 11 July 2017.

30. The applicant said in his written statement he has not engaged in any study from 11 July 2017 until the date of hearing.  

31. Cl.(9) (a) of Ministerial Direction Number 53 (MD Number 53) requires the Tribunal to have regard to whether the applicant has sound reasons for not undertaking the study in the home country. The Tribunal asked the applicant if he had considered returning to China to pursue post-secondary education.

32. The applicant advised emphatically no and when pressed for a reason said the start time for study in China is different to Australia and he would need to complete secondary school studies in China. The Tribunal accepts this latter point. The Tribunal notes there may well be different start times for study in different hemispheres. Different study periods in different countries are a normal occurrence. This minor inconvenience can clearly be overcome with a degree of planning and foresight. It is not an impediment to study in your home country.

33. The Tribunal notes differing course commencement dates in China and Australia hasn’t impacted the applicant’s continuing ability to enrol in many courses in Australia at many different times.

34. For the foregoing reasons the Tribunal does not regard either of these reasons as sound and accordingly gives them little weight.  

35. Cl.9 (b) of MD Number 53 requires the Tribunal to have regard to the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether they would serve as significant incentive to return to their home country.

36. A copy of a statement of 11 November 2015 was provided to the Tribunal (Tf: 12). In the statement the applicant advised he had “many close friends some of whom are citizens and permanent residents of Australia” and “… after 8+ years truly considered Melbourne to be his home town”. The applicant further advised his father had purchased a house for re-development with a view to live in it… with FIRB approval obtained on 1 May 2015”.

37. The Tribunal has considered this voluntary statement and regards each of the three comments as indictors of having a permanent lifestyle and attachment to Melbourne possibly made formal by seeking FIRB approval to buy property in Australia.

38. The Tribunal asked the applicant why his father had bought the property in Melbourne. The applicant explained his parents originally intended to relocate permanently to Australia and bought the specific property for use as a residence. The relevant application was rejected by the Department and the applicant now viewed the relevant property as a redevelopment opportunity it being held in the name of a family company jointly owned by the applicant and his father.

39. The Tribunal has considered whether there might be a change of intention on the part of the applicant. In this context the Tribunal notes the applicant gave evidence on 28 November 2016 in an application for a Partner (Temporary) (Class UK) visa and the Tribunal found at paragraph 22 of that decision in Matter Number [deleted] that the ‘investments established for the applicant by his parents were intended to be managed by the applicant in Melbourne’. The applicant in his later written statement of 1 November 2017 and evidence of 23 November did not attempt to persuade the Tribunal of any change of intention.

40. The applicant’s father retained title to the property (and others) notwithstanding rejection of permanent residence as outlined above.

41. This property purchase and proposed redevelopment and explanation is a matter of some matter as it shows an intention on the part of the entire applicant’s  family to pursue permanent residence in Australia at that time. The applicant did not lead any evidence that the intention of the family had changed. The Tribunal gives it weight.

42. In response to questions from the Tribunal the applicant advised at the completion of secondary school he did not want to return to China, that he did not explore the possibility of studying in China, that he had been in Australia for 11 years and had friends and a life in Australia, if he returned to China he did not know how he would survive, that in the last 10 years he had matured and wanted to remain permanently in Australia.

43. The applicant further developed this point by saying he would like to complete his current Bachelor’s degree and then find another way to stay in Australia.

44. The Tribunal notes the applicant’s statements and evidence are consistent over time. They show a continuing desire to permanently remain in Australia as a resident. They are inconsistent with the desire of a genuine student to temporarily reside in Australia for the purpose of study. The Tribunal gives weight to this evidence.

45. The Tribunal noted the applicant regularly returns to China. On average one or two times per year for 11 years. The applicant explained he was an only child and his parents had financially supported him in the past and would continue to do so. The applicant explained his father had invested some $A3-4 million in a property development company (jointly owned by the applicant and his father) which already had some land holdings in Australia.

46. The applicant explained it was a family wish for him to take over the running of this family company in Australia and develop its potential. The Tribunal notes there is nothing untoward about lawful investment by the applicant and his father via a family company structure in Australia.

47. Again the Tribunal notes it is evidence that both the [applicant’s]family and the applicant have established business structures which are evidence of a desire to reside permanently, not temporarily in Australia. The Tribunal gives this evidence weight.

48. The Tribunal asked the applicant about his incentives to remain either in Australia or return to China. The applicant simply advised he wanted to remain in Australia. After some prompting from the MA the applicant said he did not understand the concept of incentives or encouragement. The applicant was reasonably fluent in English, had graduated with  4 certificates to Advanced Diploma level in courses conducted in the English language, had lived in Australia for 11 years and had assistance from a skilled interpreter.

49. The Tribunal gives little weight to this comment of non-understanding of the meaning of incentive or encouragement. The Tribunal gives weight to repeated statements on the part of the applicant to continue to seek residence permanently in Australia.

50. The applicant acknowledged his academic progress to Diploma level in Australia was slow. He explained his decision to personally immerse himself in various courses was not right for him and not his path. He further stated that various lifestyle choices, study choices and parental expectations were not for his own interest or motivation and consequently he was more focused on pleasing his parents.

51. In direct evidence at the hearing, the applicant agreed his study record from 2009-2017 was marred by repeated failure, repeated withdrawals from courses due to unsatisfactory course progress, student notifying cessation of studies, non-commencement of studies and the like. The decision record as to course enrolments was before the Tribunal and was discussed at length with the applicant.

52. It disclosed that postsecondary school the applicant had enrolled in 19 courses and graduated from only 4.

53. The Tribunal sought an explanation from the applicant.

54. The applicant did not answer the question. Instead the applicant explained his course enrolment, course attendance and course graduation had improved dramatically in the last 3 years. The applicant pointed out he had graduated in Certificate level, Diploma level and Advanced Diploma level courses in the period July 2014-July2017.

55. The applicant also submitted he had passed a range of other subjects in this period some of which he could name and others which he could not recall. The Tribunal requested copies of relevant transcripts so that an accurate history of academic progress would be on the record. The applicant advised they were elsewhere or at home. After some discussion the Tribunal agreed to give the applicant 7 days to provide the relevant transcripts.

56. On 1 November 2017 the MA for the applicant provided a lengthy email to the Tribunal with 2 large files attached.

57. Those files contained the following material divided into 5 categories – Documents and Materials, Business Studies, TAFE Vocational Courses, Secondary School and a Statutory Declaration and supporting material outlined below:

    1)Certificate of Graduation and course transcript for an Advanced Diploma of Leadership and Management for the period 11 January 2016 until 10 July 2017. Previously advised/supplied (Tf: 79)

    2)Certificate of Graduation and course transcript for a Diploma of Finance and Mortgage Broking Management (DFMBM) for the period 9 March 2015 and 7 December 2015. Previously advised/supplied (Tf: 81)

    3)COE for DFMBM above. Previously advised/supplied (Tf: 7)

    4)COE for Bachelor of Business 20 November 2017 until 30 June 2020.

    5)PRISMS record for the applicant. Previously advised/supplied (Tf: 23/28)

    6)Letter from [his]School dated 9 December 2008 advising the applicant was completing his year 12 studies and not sitting for the VCE examination. Previously advised/supplied (Df: 11)

    7)Transcript from enrolment in a Certificate 111 in Hospitality for the period February 2009 until December 2009. The transcript outlined the applicant had enrolled in 29 units, was competent in 1 and not competent in 28 units. Previously advised/supplied (Df: 9) 

    8)Certificate of Graduation and course transcript for a Diploma of Business dated 15 December 2011. Previously advised/supplied (Df: 9)

    9)Letter of confirmation of enrolment dated 31 October 2017 from [an institution]for a Bachelor of Business commencing 17 November 2017.

    10)Copy of a Statutory Declaration dated 18 June 2016 of a family violence claim (Form 1410) which detailed recurring acts of violence against the applicant by his former wife [Ms B]in April 2014, May 2014, August 2014, April or May 2015 and August 2015 which culminated in a complaint to police following a further incident on 30 April 2016. Supporting photographs with commentary and a medical report were attached

    11)Material related to secondary school education.

1. The applicant submitted in his email as follows:

   1)The materials and evidence of his [wife] present a changed and more balanced picture from that which was available to the Minister’s delegate on 24 September 2015

   2)The Tribunal ought take into account facts, circumstances and matters which have occurred since the refusal date and which overall are favourable to [Mr A]

   3)The Tribunal ought to consider evidence of a difficult and testing prior domestic relationship, evidence the review applicant was the victim of domestic violence and evidence the review applicant was wrongly accused of assault (charges later withdrawn by Vic Police and costs awarded to applicant).

2. The Tribunal notes the only new material is supporting documentation relating to a further enrolment in a Bachelor of Business commencing in November 2017 and a Statutory Declaration relating to domestic violence.

3. In light of the above material the applicant submitted he was a different type of student now from the person he was in 2015 because since then he has completed two Business Diplomas, one recently at Advanced level, indicating improving academic progress and dedication to his studies … with improved maturity which sees him keen to study and obtain a relevant tertiary qualification - a Bachelor of Business.

4. The Tribunal has examined this material. In evidence the applicant had explained he was a new man, had matured, had recently married, had new family responsibilities and was responding to pressure from his wife, his family, his wife’s family and his wife’s friends to achieve a Bachelor’s degree and be successful.

5. The Tribunal has considered this explanation. The Tribunal has regard to the direct evidence at the hearing, the late submission and attachments, the two separate statements provided by the applicant over time and relevant evidence of his wife on this point.

6. It can be difficult to culturally adapt to living in a new country. However over time that adaption normally becomes a less significant issue. Ongoing enrolment and study would expose a student to a new culture and cultural practices. The applicant rarely chose that option. Until 2014 the applicant chose options which resulted in minimal progress and minimal achievement. A period of 11 years is sufficient for an applicant to demonstrate progress and achievement. The applicant is nearly [age] years of age. He is no longer a child.

7. The Tribunal considers the single period of achievement from July 2014-July 2017 to be of some matter. The Tribunal gives it some weight. Similarly the Tribunal has given consideration to the period of time post-secondary school until July 2014. The Tribunal is not persuaded that periods of time can or should be examined in isolation. A Student visa is granted for the purpose of study for the entire period the applicant is a temporary resident in Australia.

8. It does not say the applicant must be a genuine student for only 3 years out of 11. It does not say the applicant must be a genuine student at the convenience of the applicant. It does not say the applicant must be a genuine student when a person considers he is mature. It does not say the applicant must be a genuine student when he feels under pressure from family and friends.

9. The preamble to MD Number 53 makes it clear the Tribunal must take a balanced approach between the need to make a timely decision on a student visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily.

10. In this context the Tribunal has also considered the period July 2017 until the present time.

11. This is a continuing period of enrolment, non-attendance and withdrawal from a course of study. The applicant simply explained this period of July 2017-October 2017 by saying he feels overwhelmed and did not attend Stotts study for 4 months. The Tribunal has regard to this evidence. The Tribunal sees this behaviour as similar, if not identical to the period prior to July 2014. The Tribunal gives it weight.

12. Cl.9 (c) of Part 2 of MD Number 53 requires the Tribunal to have regard to the economic circumstances of the applicant that would present a significant incentive for the applicant to return to their home country.

13. The applicant has lived continuously in Australia since 2006. Since secondary school he has been enrolled in institutions in the VET sector or the HE sector. His parents have attempted to relocate to Australia. The applicant and his father jointly own a family company which already has significant property investments in Australia. The applicant and his family are positioning the applicant to take over the running of the company in Australia.

14. The applicant did not give evidence he had any direct financial interests in China. His family clearly has significant business or commercial interests in China. There is clearly the opportunity for the applicant at some future time to return to China and look after family business interest. The applicant gave evidence and made statements that was not his intent. Apart from his parents the applicant did not disclose any family or other community interests in China. Indeed all of the applicant’s adult life has been spent as a resident in Australia. On 23 November the applicant advised the Tribunal on his latest visit to China he had sought for the first time to resume contact with school-friends. Occasional visits to China do not substitute for the total immersion the applicant has experienced in Australian culture and lifestyle.

15. The applicant is newly married and his wife gave direct evidence of her strong desire to remain in Australia and outlined the steps she had lawfully taken or was taking to achieve that goal. The applicant’s wife was reasonably confident of achieving permanent residence in Australia post June 2018.

16. The Tribunal notes in passing that if the applicant’s wife is successful in gaining permanent residence in Australia the applicant will be most likely eligible to apply for a spouse visa or depending on the type of visa she applies for she may also be able to include him as a secondary applicant.

17. The applicant gave evidence in a forthright manner of his desire to remain permanently in Australia and not return to China

18. The Tribunal has regard for all of this evidence. The economic circumstances of the applicant do not present as a significant incentive to return to China. Indeed the economic circumstances of the applicant present as a significant incentive to remain in Australia. The Tribunal gives weight to these economic circumstances.

19. The Tribunal has also had regard to the entirety of cl.11 of Part 2 of MD Number 53.

20. The applicant has given detailed evidence of his financial interests in Australia, his family’s desire and attempt to relocate to Australia and his strong desire to remain in Australia on a permanent basis. The applicant wishes to pursue opportunities in property development and is the joint owner of a family company which is already the repository of significant holdings.

21. The applicant’s wife has graduated with a Master’s degree from [University] and is already taking steps to gain permanent residence in Australia.

22. The evidence whether considered in aggregate or as separate items points to a goal of permanent residence in Australia. These circumstances, planning, investment, business opportunities and business structures are not consistent with the behaviour of an applicant seeking to genuinely study in Australia on a temporary basis. They appear to be at variance with the genuine temporary entrant criterion.

23. The Tribunal has also regard to the entirety of cl.12 of Part 2 MD Number 53.

24. The applicant had previously stated that he was unsuited to study in the HE sector and used this explanation as justification for enrolment in the VET sector. Repeatedly the applicant said the transition to study at University level was challenging and stressful, that he struggled to find the right course at his academic level, that he found degree level courses a stretch academically and the insight gained from studying in the period 2012-2015 was that he was much happier studying at Diploma level.

25. This insight is arguably correct as the applicant successfully concluded a small number of Diploma and Advanced level course in the VET sector in the period July 2014-July 2017.

26. The applicant did not explain how his proposed enrolment in a Bachelor level course was consistent with this insight and his success in the VET sector

27. The applicant gave evidence he had recently enrolled again in a Bachelor of Business and said graduation from this course was relevant to his career ambitions in Australia and the building of his property development company in Melbourne. The Tribunal understands this linkage.

28. The Tribunal explored with the applicant what subjects he would study as part of his Bachelor’s degree. The applicant was unable to explain any of the detail of the course subjects. The applicant was unable to identify the subjects he would study commencing in November. The Tribunal reminded the applicant he had previously been enrolled in the same degree. Still the applicant had no knowledge of the relevant course subject options in his proposed degree.

29. The applicant explained this lack of knowledge by saying he might get course credit for subjects previously studied at Diploma level. Whilst this might explain his lack of knowledge concerning his proposed enrolment it does not explain his lack of knowledge as to the course subjects on offer in his first enrolment attempt in the Bachelor of Business in July 2017. The degrees were the same and the only relevant difference was the semester start date. The Tribunal gives weight to this evidence.

30. The Tribunal understands enrolment and completion of a Bachelors level course in Business can have direct relevance to future work in Australia or in China. The Tribunal is able to see a direct linkage between this degree and possible future employment in either country.

31. As discussed in paragraph 57 above the applicant wrote to the Tribunal on 1 November 2017. Arising from that submission the Tribunal reviewed an earlier written submission of the applicant which referred to a previous application by the applicant  for a SC-820 Partner Visa rejected by the Department on 7 July 2016 and affirmed by the Tribunal (differently constituted) at review on 1 December 2016.

32. The Tribunal determined to sit for a further hearing to give the applicant the opportunity to be heard on this issue and to comment on some adverse information. The Tribunal put information under s.359AA to the applicant. This information was contained in an application for review of a Subclass 820 Partner Visa refusal decision on 22 July 2016 in Matter Number [deleted].

33. In that review application the applicant made written submissions wherein the applicant stated at paragraphs 17 and 18 that ‘I first arrived as an international student in Australia on 15 August 2006, aged [age]. I am now [age] years of age. I have no contact with my school friends in China’ and ‘All my friends and my life experience as a young person and an adult is here, in Australia. I think like an Australian person and I identify with Australian culture and Australian values and I consider that after having lived away from China for so long that Australia is my home now and I really have nothing to go back to’.

34. The Tribunal explained to the applicant the above information was relevant because the time of decision criteria in cl.527.223(1)(a) requires the Tribunal to satisfy itself that the applicant is a genuine applicant for entry and stay as a student because the  applicant intends genuinely to stay in Australia temporarily.

35. The Tribunal explained to the applicant the information was relevant to its consideration of whether the applicant intended genuinely to stay in Australia temporarily, because it showed the applicant had previously applied for a temporary visa that, if granted would likely have led to the grant of a permanent visa. It also showed that in late 2016 it was the applicant’s intention to achieve permanent residence in Australia, and a previous Tribunal had been satisfied that the applicant had close social ties in the Australian community.

36. The Tribunal gave the applicant a chance to seek an adjournment before responding. The applicant sought an adjournment and the Tribunal granted that adjournment. After the adjournment, the applicant advised as follows:

    ·his prior de facto relationship had ended in April 2016 in acrimonious circumstances;

    ·that notwithstanding his various statements and applications he really didn’t decide he wanted to be a permanent resident of Australia;

    ·he had applied for a Partner (Temporary) (Class UK) visa on 8 April 2016 on the basis of his relationship with his sponsor (his former de facto partner);

    ·he had applied for the visa because of pressure from his former de facto partner who wanted him to stop studying, open a business, make money and support her and bring stability to his then de facto relationship;

    ·his sponsor withdrew her sponsorship of his visa application in May 2016 because of matters associated with a domestic violence complaint to the police  He persisted with the application to the AAT because he wanted to explain his position to the Department and because he wanted to explain the domestic violence matters to the Tribunal;

    ·he had decided from at least mid-2015 that he wanted to be a permanent resident of Australia  and as late as December 2016 he was giving effect to that purpose;

    ·that notwithstanding his various statements in support of his Partner (Temporary) (Class UK) visa application his thoughts had now changed and he wanted to be a student;

    ·that his previous application and the current matter before the Tribunal were consistent because if  he had been granted  a Partner visa he could open a business in Australia and if granted a Student visa in Australia his eventual graduation would qualify him to run a business in either China or Australia;

    ·that at the time of the break-up of his de facto relationship in April 2016 he intended to go back to being a student, yet continued his application for a Partner (Temporary) (Class UK) visa for permanent residency status notwithstanding the withdrawal of sponsorship in May 2016.

    The Tribunal has considered this oral evidence. The Tribunal finds this later evidence contradicts previous statements, evidence and actions on the part of the applicant as discussed at paragraphs 36, 37, 42, 43, 44, 74 and 90. The Tribunal finds the applicant has been untruthful in his oral evidence as to the reasons behind his application for a review of the decision of the delegate to refuse his application for a Partner (Temporary) (Class UK). The Tribunal finds the applicant has been untruthful in stating the reasons for lodging the application for review related to a desire to explain his position to the Department and to the Tribunal concerning various alleged domestic violence matters. The Tribunal finds the applicant has been deliberately and with purpose given effect to a desire to seek to become a permanent residence of Australia since April 2016.

    Legal Arguments

37. At the conclusion of the first hearing the MA of the applicant asked the Tribunal to have regard to a written submission (TF: 16). The applicant submitted the decision of the delegate, its publication and distribution to the applicant raised legal issues and was said to be affected by jurisdictional error as follows:

    • The submissions by the applicant’s migration agent dated 13 November 2015 indicate that the date of the notification of the primary decision, 26 October 2015, post-dated the primary decision, 24 September 2015. The applicant contended that s.66(1) of the Migration Act 1958 (the Act) requires that the notification of the primary decision be ‘contemporaneous’ with the primary decision, and that as this did not occur the primary decision is itself ‘undermined’ and may be affected by jurisdictional error. The submission states that the claimed defect ‘operate in capricious, unintended unpredictable and an unjust way and create unjust and serious consequences for applicants, not least of all denying applicants of lawful status and as a result, their liberty’ (sic).
    • The Tribunal has considered this argument.
    • The Tribunal notes s.66(1) of the Act and r.2.16(3) of the Migration Regulations 1994 require the Minister to notify the applicant of a decision to refuse a visa by one of the methods specified in s.494B of the Act. While s.66(1) requires the Minister to notify the applicant ‘when’ the Minister refuses to grant a visa, it is not apparent that this requires that the finalisation of the primary decision and the notification of a primary decision be contemporaneous. Further, it is unclear how the delay between these events leads to any unfairness to the applicant or to the primary decision being affected by a jurisdictional error. For certain bridging visas granted on or after 19 November 2016, the visa ceases 35 days from when the primary decision is made. This could potentially result in an applicant inadvertently becoming unlawful as a result of a delay between the making of a decision and notification. However, this is not applicable in the applicant’s case, and an applicant’s visa status (i.e. lawful or unlawful) is not usually relevant to the Tribunal’s jurisdiction. Here the applicant appears to have applied for review within the prescribed period, the Tribunal has accepted jurisdiction and is undertaking a full merits review of the decision. In these circumstances it is not apparent what unfairness the applicant is claiming he would face.
    • In any event, even if the primary decision was affected by a jurisdictional error, there is clear judicial authority to the effect that the existence of a Part 5-reviewable decision (e.g. under s.338(2)) does not turn on the validity of the primary decision, and the Tribunal is obliged to review the ‘purported’ decision to refuse the visa if it exists as a matter of fact (see Singh v MIAC [2010] FMCA 1000; Collector of Customs v Brian Lawlor Automotive Pty Limited (1979) 24 ALR 307.

38. The Tribunal has considered this submission. The Tribunal finds there is jurisdiction notwithstanding any purported defect in notification.

39. The Tribunal has regard to the applicant’s immigration history.

40. Cl. 13 of MD Number 53 says an applicant’s immigration history refers both to their visa and travel history. Cl. (14)(a)(i) directs the Tribunal to consider whether an applicant previously applied for an Australian permanent visa and if refused the grounds on which the visa was refused.

41. In Matter Number [deleted] the applicant as discussed above (see paragraphs 88-93) applied for a Partner (Temporary) (Class UK) visa. The delegate refused the application on 7 July 2016 and the applicant sought review before the Tribunal. On 1 December 2016 the Tribunal affirmed the decision of the delegate to refuse the application.

42. The Tribunal notes that the applicant applied for the visa on 8 April 2016 on the basis of his relationship with his sponsor. The Tribunal notes this relationship ended towards the end of April 2016, the sponsor withdrew her support for the application in May 2016, the application for review was lodged on 7 July 2016, the applicant appeared before the Tribunal on 28 November 2016 to argue his case and the Tribunal affirmed the decision on 1 December.

100.    At nearly all material times the applicant was no longer in a de facto relationship with his sponsor yet he continued to seek a Partner (Temporary) (Class UK) visa.

101.   The Tribunal finds that at time of lodgement of the above application for a Partner visa and at the time of the Tribunal decision in December 2016 the applicant was seeking to become a permanent resident in Australia and not behaving as a genuine student seeking to enter and remain in Australia temporarily.

102.   The Tribunal has had regard to the following:

othe applicant’s long continuing residence in Australia since teenage years;

ohis constant enrolment and re-enrolment in Vet or HE level courses;

ohis generally poor academic record over time mostly caused by his own poor attitude and approach to study as he admits;

ohis successful period of study from July 2014-July 2017;

ohis lack of attention to student visa obligations;

ohis lack of a COE at critical times;

ohis reversion to poor study practices and habits in the period July 2017-November 2017;

o   his repeated statements that he wants to remain permanently in Australia;

o   his lack of familiarity with his home country;

o   his absolute reluctance to return to China;

o   his family’s attempts to permanently relocate to Australia;

o   his lack of employment or family connections (excluding parents) to China;

o   his wife’s intent and actions to remain permanently in Australia;

o    the significant investment and joint ownership of a family company with significant property interests in Australia;

o   his late submission of 1 November 2017 in essence arguing the applicant is a different student with maturity and purpose;

o    the applicant’s exposure to domestic violence (as victim);

o   his statements that his renewed enrolment in a Bachelor of Business is directed to acquiring skills or knowledge that would assist in the running of the family owned company in both China and Australia;

o his evidence in response to the s.359AA information;

o    his written statements to the Tribunal in matter Number [deleted];

o   the findings and decision of the Tribunal in Matter Number [deleted]. 

103.   The Tribunal has reviewed all the evidence, considered the various statements of the applicant, noted his course progress and explanations over time and paid particular attention to the oral evidence of the applicant on 2 occasions, the oral evidence of his wife and written supporting documentation (including a late submission) of the applicant.

104.   The Tribunal has considered the circumstances of the applicant as a whole including all of the issues outlined in Ministerial Direction Number 53. The Tribunal has had regard to the applicant’s circumstances in his home country, the applicant’s actual and potential circumstances in Australia, the value of various courses and in particular the repeat enrolment in  Bachelor of Business degree to commence in late November 2017 and has had regard to the personal circumstances of the applicant and his immigration history.

105.   On the basis of the above the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

106.   The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. 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

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

Mark Bishop
Member