Chan (Migration)

[2018] AATA 2468

Chan (Migration) [2018] AATA 2468 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yee Ching Chan

CASE NUMBER:  1701994

Home Affairs REFERENCE(S):                BCC2016/3471300

MEMBER:Stephen Witts

DATE:31 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 31 May 2018 at 10:43am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is a genuine applicant for entry and stay as a student – Significant incentives to remain in Australia – Weak incentives to return to home country – Limited academic progression – Limited value of studies to future plans – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

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 and Border Protection on 27 January 2017 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 for the visa on 19 October 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 24 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends to stay in Australia temporarily.

   Genuine applicant for entry and stay as a student (cl.500.212)

7. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

8. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian 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.

9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. At the hearing the Tribunal had a discussion with the applicant regarding issues for consideration outlined in Ministerial Direction 69.

    Background

11. According to the Delegate’s Decision Record the applicant first arrived from Hong Kong on 11 March 2013 on a Working Holiday 417 visa which was a valid until 20 February 2014. The applicant was granted her initial student 572 visa on 20 February 2014 which was valid until 26 October 2016. The applicant applied for a Student 500 visa on 19 October 2016. This application was rejected by the Delegate on 27 January 2017.

12. The applicant is currently enrolled in a Certificate IV in Business which began on 19 June 2017 and is due for completion on 15 June 2018. The applicant has also enrolled in a Diploma of Business due to commence on 9 July 2018 and which is due for completion on 5 July 2019.

13. According to the PRISMS record, and the applicant’s evidence, the applicant has been enrolled in the following courses: a Certificate IV in Business cancelled in 2015, a Diploma of Management cancelled in 2015, an Advanced Diploma of Management cancelled in 2016, an Advanced Diploma of Leadership and Management cancelled in 2016 and a Certificate III in Business finished in 2017. Since arriving in Australia her Certificate III in Business has been her only completed course.

    Circumstances in home country

14. The applicant stated that she finished high school education in Hong Kong and came to Australia, originally on a working holiday visa, and decided to study here. She testified that in Hong Kong the education is superficial and here in Australia it’s more systematic and organised, and the outcomes are better. The Tribunal makes no findings on this matter.

15. The applicant stated that she has a mother and older sister at home and that she remains in regular contact with via messenger and calls. She stated that she did not have a problem maintaining her personal relationships from here in Australia. For this reason, the Tribunal does not consider the applicant’s personal connections overseas to be a distinct incentive for the applicant to cease residence in Australia.

16. The applicant stated that she did not own any property back in her home country but that her mother owns a hair and beauty shop.

17. There is no significant relevant evidence regarding the following factors indicated by Ministerial Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, economic circumstances in the home country, civil unrest in the home country, circumstances in the home country relative to Australia or any other country, and the applicant circumstances in the home country relative to others in that country.

    Circumstances and study in Australia, and the value of the course to the applicant’s future

18. The applicant stated that she rents by herself in Box Hill and works in restaurants for 20 hours per week and earns approximately $800 AUD. The Tribunal notes that the applicant’s evidence suggests that she was earning a reasonably significant amount of money, especially for the stated hours worked, and that this is a reason for the applicant to maintain residence in Australia.

19. The applicant testified that she has been home to Hong Kong on four occasions since her arrival here in 2013 and generally goes back for about two weeks. The Tribunal makes no findings on this matter.

20. The applicant stated that she owns no property back at home and her sister helps her to pay for her studies.

21. Adopting the procedure of the Act 359AA, the Tribunal read out the following statement to the applicant:

22. I’d like to talk to you about your study history and to do that I’m going to put to you formally under the law, a piece of information that I have. The information that I will put to you is something I consider would be the reason, or part of the reason, for affirming the decision under review.

23. I have before me, Provider Registration and International Student Management System records, otherwise referred to as PRISMS. This PRISMS record from a database that is kept by the education providers and details all of your certificates of enrolments, the dates that you remained enrolled and the outcome of the courses.

24. This information is relevant to the review because it may lead me to form the view that it documents a history of unrelated courses. It lists many courses that weren’t started, or that were started and shortly thereafter cancelled.

25. The consequence of this information being relied on by me may be that I form the view that you do not meet the requisite criteria, more specifically that you are not a genuine student. This may mean that you are refused to visa which you have applied for.

26. You may comment on or otherwise respond to this information. You may wish to ask for additional time to comment on or respond to the information.

27. The applicant chose to spend a few minutes going over her PRISMS record and indicated that she was happy to then discuss this with the Tribunal.

28. The Tribunal asked the applicant to confirm that since her arrival here all her courses have been cancelled or not completed up until her Certificate III in Business in 2016. The applicant confirmed that that was the case and that her previous study in her Certificate IV in Business was cancelled as well as her Diploma of Management, her Advanced Diploma of Management, and her Advanced Diploma of Leadership and Management. When asked by the Tribunal as to why all her studies up until this point had been cancelled or not finished, the applicant stated that her trainers were not good and that generally she could only get half way through the course and on one occasion had to change schools. The applicant testified that she was doing better in her current enrolment. When asked by the Tribunal why she had not finished her original Certificate IV in Business and why she was studying this again she responded that she was unable to finish it at that time as the school was closing. The Tribunal is concerned by this evidence that the applicant has been unable to successfully complete most of her courses and finds that this indicates that the applicant is seeking to maintain residence in Australia via the student visa system.

29. The applicant gave evidence that her study plan was to successfully study business here and go home at the end of her Diploma of Business in July 2019 and help her mother in her hair and beauty shop and consider opening up her own hair and beauty shop and that this study would assist her in this endeavour. The Tribunal is concerned by this evidence as the applicant has had trouble bringing any of her study to completion in any case and that no clear link was demonstrated in her evidence regarding the value of her current studies in business to working back at home in her mother’s hair and beauty shop and opening up her own hair and beauty business at some point in the future.

30. The applicant, in her GTE statement to the Delegate (Delegates file folio 37) stated that after she finished her diploma she wanted to develop her own business in Hong Kong. The applicant provided no details at this time in regard to the nature of the business that she was interested in developing or in which direction she could see herself going in this regard. The applicant did not link her studies to any particular study plan for her future. In her further GTE statement to the delegate (delegates file folio 20) she testified that she wanted to work in a job related with business. Again the applicant did not demonstrate that she was making any link between whatever studies she was doing at the time to a future plan. For this reason, the Tribunal finds that the applicant is using the student visa system to remain in residence in Australia.

31. Overall, the Tribunal finds that the proposal to study a further VET sector course is of very limited value to the applicant’s future, and is not, as the applicant claims, to acquire additional skills to assist her in a future business career. The Tribunal finds that the applicant wishes to prolong her stay because the applicant has no intention of returning to reside in Hong Kong, or anywhere else outside Australia, to embark upon her claimed future plans, or to execute other plans. The Tribunal finds, for the reasons above, that the applicant intends to maintain ongoing residence in Australia and has no intention of leaving Australia.

32. 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.500.212(a).

    Conclusion on cl.500.212

33. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

34. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Stephen Witts
    Member