CHAU (Migration)

[2018] AATA 4131

CHAU (Migration) [2018] AATA 4131 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms MAN YI CHAU

CASE NUMBER:  1708057

HOME AFFAIRS REFERENCE(S):           BCC2016/4393391

MEMBER:Penelope Hunter

DATE:12 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 September 2018 at 4:30pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – enrolled in similar English courses numerous times – no evidence of successful completion of courses – decided to undertake additional studies as a means to maintain ongoing residency – evasive answers to Tribunal questions – unable to answer about course – breach of working rights on previous student visa – vague answers about employment in Australia – decision under review affirmed

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

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 March 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 29 December 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 visas 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 by the applicant with a genuine applicant for entry and stay Australia temporarily as a student.

   BACKGROUND

   Application to the Department

4. The applicant is a citizen of the People’s Republic of China, Hong Kong Special Administrative Region, and arrived in Australia on 6 September 2010, on a Working Holiday Class TZ visa.

5. She applied for the visa in order to undertake study in a Certificate IV in English, and a Certificate IV and Diploma of Marketing and Communication.

6. In her application the applicant set out that she had previously undertaken study in English language courses at the Southern Cross Education Institute North Melbourne.

7. In support of her application, the applicant provided a statement which set out the following information, in summary;

   i.She completed secondary education in Hong Kong and after graduation worked part-time as a waitress and doing entry-level jobs. She knew she could not continue to work these jobs for long because she could not see a future. She quit her job and decided to come to Australia to experience another style of living.

   ii.In Australia she met many people from different countries and made a lot of friends and realised the importance of obtaining professional skills to help to change her career. Most people can speak fluent English in Hong Kong and many foreigners are settled there. She wished to study English so in the future she could build her own small restaurant business.

   iii.In 2014 a friend introduced her to an education agent. She applied for a student visa and this was successfully granted. She felt her English improved a lot, the teachers at her Institute and classmates helped her to the study and contributed to her confidence.

   iv.As she wished to open a small business with her friend when she finished studying the applicant decided to study marketing and communication. She believed that the course would allow her to possess sound knowledge and practical experience in running a business, and progress her career prospects in business and marketing. It was proposed that she would have the role of manager and supervisor, in charge of marketing and customer services. Her friend would take care of kitchen duty.

   v.Her parents were getting old and she wanted to make everything better. She hoped that she could give them a happy family and take care of them.

8. The delegate in their decision, copy of which the applicant has submitted to the Tribunal, set out the following reasons for refusal of the visa;

   i.The applicant had claimed not to have been employed since 1 April 2014. No evidence of past employment had been provided to the Department. The applicant was requested by the Delegate to provide to the Department a copy of her current Curriculum Vitae as well as her Australian Tax Assessment Notice for the past two years. The applicant had not responded to this request.

   ii.The applicant’s academic history was of concern because according to the Provider Registration and International Student Management System (PRISMS) records, she had completed the following courses of study since her initial student visa which was granted on 10 September 2012;

   ·English for General purposes (4 to 48 weeks) October 2012 to December 2012

   ·Certificate III in Tourism (Retail Travel Sales) January 2013 to April 2014.

   ·Certificate I in EAL (Access) May 2014 to November 2014

   ·Certificate  II in EAL (Access) December 2014 to July 2015

   ·Certificate II in EAL (Access) July 2015 to January 2016

   Additionally, the applicant had enrolled in further four courses of English however each of them was cancelled and she did not commence the course of study.

   iii.The delegate found that the applicant had not complied with condition 8202 of her previous visa, to continue to study; because the applicant had not enrolled in the course from 30 January 2016 to 15 January 2017.

   iv.The delegate had concerns of the applicant would not undertake the proposed courses.

   v.The delegate considered the applicant’s claim that she would return to start a restaurant, however the applicant had not provided information detailing her expected business operations or remuneration for doing so. It is considered that the applicant had not demonstrated the course would significantly improve upon her future employment and remuneration. The delegate was not satisfied that the applicant had demonstrated the value of the proposed course to her future.

   vi.It was considered that the applicant had demonstrated limited incentive to return to her home country. The applicant applied for current visa, being two days prior to her previous visa ceasing. It was considered that the applicant’s decision in applying for this visa two days prior to her previous visa ceasing demonstrated that she’d only decided to undertake additional studies as a means to maintain ongoing residency.

   vii.The delegate considered the applicant’s immigration history, particularly her arrival in Australia on 6 December 2010 on the working holiday visa, that she had not met condition 8202 while on her previous substantive student visa and that she had a remained in Australia for 2239 days with a total of 67 days outside Australia since her initial arrival. These factors were considered to raise concern that the applicant was using the student visa program to maintain ongoing residency in Australia.

   Tribunal file

9. At the time of her application, the applicant provided some submissions to the Tribunal which set out the following, in summary;

   i.When she came to Australia she had been working for 10 years as a waitress and she was limited by her weak education to find another job, and she decided to undertake further study. Her study career in Australia was not smooth due to her weak English. She spent several years studying English in order to progress to study in other courses. Her difficulties arose because she had no foundation in English and problems remembering vocabularies. She had to adapt to the learning atmosphere, this is why she undertook several English courses.

   ii.Regarding the one year gap in her studies, the applicant had paid the tuition fees and had classes on schedule. She did not know that the course was cancelled by the school until she saw the information sent to her by the Department and was very confused. She’s tried to follow this up and has no idea why it was cancelled by the school.

   iii.She had made progress in her English courses and thought it was time to study other courses which might be helpful for opening a restaurant. She took a long time to consider what courses were suitable for her future career, consulted several agents, undertook research, and considered the skill she needed. This was the reason why she submitted the application only two days prior to her previous student visa ceasing.

10. The applicant appeared before the Tribunal on 26 July 2018 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

11. Following the hearing the applicant submitted a letter dated 17August 2018, setting out the balance of her Commonwealth Bank Account, $30,694.45, and a letter from Barclay National College dated 17 August 2018, confirming that the applicant was enrolled in a Certificate of EAL with course dates from 15 January 2017 to 14 July 2017, Certificate IV in Marketing and Communication from 15 August 2017 to 1 April 2018 and a Diploma of Marketing and Communication from 15 May 2018 to 14 May 2019.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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 satisfies clause 500.212.

14. 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?

15. 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.

16. 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.

17. On balance, having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

18. The Tribunal has concerns regarding the applicant’s academic progress in her various courses to date. At the hearing the applicant claimed that she had successfully completed her English course and her Certificate IV in Marketing and Communication. The applicant was requested to provide evidence of courses she had completed prior to the Tribunal hearing, when asked why she had not submitted evidence, the applicant provided inconsistent and evasive responses. At first she did not acknowledge the request for information that accompanied her hearing invitation. Then she claimed that her college required her to fill out a form to get a certificate of completion and she did not bother to get it previously as she did not need to use the certificates. She also claimed that her instructor had told her that she did not pass a few subject so she may not be able to get the certificate. The applicant also gave evidence that she had completed English courses in the past. When asked for evidence of completion, the applicant said she had asked her agent to do this. The Tribunal discussed with the applicant that this had been part of the reasons set out in the delegate’s decision for the refusal of the visa, and it was considered that having been on notice of this issue already significant time had passed for her to obtain this evidence. The applicant then claimed that when she had followed it up her previous college had an Indian officer and he either could not understand her, or would not help her because she was not a current student. The inconsistencies in the applicant’s evidence indicated that the applicant was not being transparent about her past academic performance. It was also of concern for the Tribunal that between 2012 and 2017 the applicant claimed to have studied only English courses. Pursuant to the provisions of s. 359AA the Tribunal raised with the applicant information in her PRISMS records which documented that she had enrolled in similar English courses numerous times, particularly her Certificate II in English and Certificate III. The applicant chose to respond immediately and claimed to have problems with Certificate III English, and she did not pass she so was told that she had to do it again. She also suggested that her agent had previously enrolled her in courses but he did not make it clear what they were. Having raised these matters with her, the applicant was provided with leave to submit relevant documents following the hearing. It is acknowledged that the applicant subsequently submitted a letter from her education provider confirming her current enrolment. However, the applicant has not submitted any course transcripts or evidence of successful completion of any of her courses. The applicant claimed that she required qualifications to progress her career, yet she has not demonstrated that through her study in Australia she has obtained any qualifications. Furthermore she has maintained enrolment in a series of short inexpensive courses which, up until 2017 where at the same ELICOS level.

19. The Tribunal’s concerns with respect to the applicant’s commitment to her studies were further amplified when the Tribunal questioned her about her current course. The applicant was initially unable to identify any particular subjects that she was currently undertaking as part of her course. Her initial responses were evasive and did not demonstrate a reasonable level of knowledge of her course or that she was engaged in her course. At first she claimed that she was enrolled in all subjects, when the Tribunal explored further about the days she attended her course and what she had been taught and the relevant subjects in the days proximate to the Tribunal hearing she was unable to provide specific details. It is expected that the applicant would be aware of the subjects she is currently studying as part of her course in the days proximate to the hearing. When the Tribunal questioned her engagement with her course  the applicant claimed that the name of the subject was on the assignment, and it is only when she gets the assignment from her teacher that she is informed of the subject. Under further questioning, the applicant was also unable to identify with precision assignments that she had done in the past. She gave the vague response that she had would answer questions and do a case study. It was only when the Tribunal drew the applicant’s attention to information available on her education provider’s website, which the applicant also appeared to access during the hearing, that she was able to identify modules she was enrolled in and whether they were elective or core modules. Given the unsatisfactory evidence provided in response to Tribunal questions in relation to her current studies, and her previous courses, the Tribunal is not satisfied that the applicant is engaged in the course, its value for her future or that she is undertaking the course for the reasons that she has claimed.

20. Furthermore, when asked at the hearing to explain why she was studying her chosen courses, the applicant said that she had studied English in Australia as it was really hard to get a job in Hong Kong. The Tribunal then confirmed that the applicant had been employed in restaurants and other hospitality jobs since 2001 in Hong Kong, prior to arriving in Australia. Then she claimed that it was not possible for her to do these types of jobs for the rest of her life and that no one would employ her. The Tribunal is not satisfied that the applicant has any evidence to support this claim. The applicant was questioned regarding the work she was undertaking in Australia, and she claimed that she was working in a restaurant. The applicant gave evidence at the hearing that her courses were necessary for her future career as she planned to work for a Market Research Company. This claim was not consistent with her previous evidence and submissions that she proposed to manage a restaurant with her friend. When this inconsistency was put to the applicant for comment she said that at the time she did not know what to put down so she had talked to her friend and worked out a plan, but that was two years ago and the plan had now failed. This suggests to the Tribunal that there was little forethought in the applicant’s enrolment in her current courses. It is a reasonable expectation that prior to enrolling in a course of study, the applicant would have researched their value and employment opportunities and it would not have been something she had to work out in response to a request from the Department.  The inconsistency of the reasons provided by the applicant for studying her chosen courses, and the absence of any evidence to demonstrate that it will improve her remuneration or career prospects, leads the Tribunal not to be satisfied as to the value of the course to the applicant’s future.

21. The applicant claimed that she felt that the education was good in Australia, and that she did not want to study with young people in her home country. However she did not satisfactorily demonstrate to the Tribunal that she could not undertake relevant courses in Hong Kong, that quality course were not available or that she had reasonable reasons for not undertaking the study in her home country. Particularly, in circumstances where the Tribunal has concerns about her progress and level of engagement in her current courses.

1. It is acknowledged that the applicant has family in her home country in the form of her parents and younger sister and brother. The Tribunal must balance these family ties against the amount of time that the applicant has spent in Australia. The applicant said that she last returned to her home country in 2015, and not since the decision of the delegate. She did not claim to have spent more than 67 days outside the country since her initial arrival. While her family may provide an incentive for her to return, the Tribunal is not satisfied that this is a strong incentive when considered against the fact that she has been living independently in Australia since 2010. Additionally, when questioned whether she had any property in her home country, the applicant claimed that she did not. She said that she had a bank account in her home country. Yet, when the Tribunal asked for evidence of this asset, the applicant then claimed that it was probably frozen because of her long absence. The Tribunal is not satisfied on the evidence that the applicant has economic circumstances that would present as a significant incentive for the applicant to return to her home country.

2. The Tribunal accepts the applicant has no military service commitments, there are no concerns regarding civil unrest in Hong Kong, or the political situation there, which would provide  an incentive for her to not return. 

3. As to the applicant’s circumstances in Australia, she claimed that she was supporting her studies from monies that she had earned from employment while on her working holiday visa. However, the applicant also confirmed that this visa ceased in 2012. The Tribunal then raised with the applicant the concerns of the delegate about the applicant’s employment in Australia, and that she had not supplied any of her Notices of Assessment or a Curriculum Vitae. The applicant told the Tribunal that she had asked her friend who was an accountant to provide this. The Tribunal put to the applicant that the delegate had made their decision in March 2017, and she had been on notice of this issue since then and in response applicant claimed that not all employers provide such information. The Tribunal questioned the applicant whether she was working lawfully in Australia and paying tax. She claimed that because she was on a low income that she did not have to pay tax. The Tribunal then questioned the applicant about her income and whether she could provide evidence of this. She said that restaurant owners do not necessarily provide payslips. When the Tribunal attempted to elicit further information from the applicant about her current employment she was considerably vague, for example she had difficulty recalling the name of the business, perhaps the Pony Café, and she was unsure of its address in Surry Hills. The Tribunal had considerable doubts that the applicant was being truthful with the Tribunal regarding her circumstances. Having raised these matters the applicant had the opportunity to provide further evidence following the hearing. The Tribunal has considered the letter that the applicant provided from the Commonwealth Bank, dated 17 August 2018, setting out her current bank balance. Yet, this does not answer any of the Tribunal’s concerns regarding the terms of her current employment, and whether she was working in accordance with the conditions of her current visa.

4. The applicant claimed that she did not have any family in Australia and she no longer had a partner. She claimed that she was living in a share house in Box Hill, Melbourne since the end of 2014 or 2015. This was inconsistent with her address in Griffith, NSW, at the time of her visa application, and Tribunal application. It also noted that the letter she submitted from the Commonwealth Bank provided a Griffith NSW address. When questioned about her address at the hearing the applicant claimed that she had moved a long time ago. For the Tribunal there were repeated inconsistencies in the applicant’s overall evidence raised considerable doubt for the Tribunal as to the reliability of her claims.

5. Further regarding the applicant’s ties in Australia, it was considered that given the length of time that the applicant has spent in Australia, it is also expected that during her period of residence she would have established some social and community ties.

6. The applicant’s immigration history is of concern. The Tribunal also discussed with the applicant the delegate’s concerns about compliance with the conditions of her previous visa, particularly her lack of evidence of enrolment between 30 January 2016 to 15 January 2017, and compliance with condition 8202. The applicant was not able to satisfactorily demonstrate to the Tribunal that she was enrolled in that period. The Tribunal gave her leave to submit relevant information to confirm any enrolment on or before 28 August 2018. The applicant has not provided any further evidence. Given this previous breach, and the lack of satisfactory explanation by the applicant, or evidence to support her written claims that she had in fact been studying, the Tribunal has genuine concerns that she will comply with the conditions of any future visa grant.  While not necessarily determinative, the length of time that the applicant has spent in Australia, initially arriving in 2010, and studying since 2012, without evidence of satisfactory course completion, indicates that she sees Australia as not just a temporary place to study, but a long term place to reside.

7. The Tribunal has assessed all of the evidence before it , including that she is currently enrolled, has said she will return home on completion of her studies, has family ties in Hong Kong and all the other matters she has raised; however for the reasons outlined above does not accept she is undertaking the current study or future study for the reasons she claims, but rather using it as a pathway to maintain residence in Australia.

8. Overall, the Tribunal has formed the view that the applicant has an economic motivation to maintain her residency in Australia and that progressing academically, so as to improve her employment and/or business opportunities in her home country is not her primary reason for seeking to remain in Australia until 2019.

9. 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 cl.500.212(a).

10. 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.

    DECISION

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

    Penelope Hunter
    Member