CHEN (Migration)

[2018] AATA 5142

CHEN (Migration) [2018] AATA 5142 (15 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhu CHEN

CASE NUMBER:  1707739

HOME AFFAIRS REFERENCE(S):           BCC2017/790198

MEMBER:David Barker

DATE:15 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 15 November 2018 at 4:07pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – completion of higher education courses – completion of masters course subjects after visa refusal – employment prospects in Chinese job market – family ties in China – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 65, 499
Migration Regulations 1994, 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 28 February 2017. 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 there was insufficient evidence to demonstrate that the applicant is a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 29 August 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. The applicant was assisted in relation to the review by their registered migration agent.

   For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   BACKGROUND

6. The applicant is a national of China and is 32 years old.

7. The Department delegate’s decision record, a copy of which was provided with the review application states the applicant first arrived in Australia in September 2005, as the holder of a TU-573 Higher Education Sector student visa. The delegate noted that an examination of the applicant’s study history in the Provider Registration and International Student Management System (PRISMS) indicate that he has been enrolled to study English, Bachelor of Science, Certificate  IV in Information Technology, Diploma of IT, Bachelor of Information Technology followed by Interpreting and Translating studies.  At the time of application for the sc500 Student visa in February 2017, the applicant had enrolled undertake Master of Information Technology course.

8. In response to an invitation to the applicant from the Tribunal to provide documents or arguments he wished to rely on in his review, the applicant provided documentary evidence including, but not limited to, evidence of his current and past academic studies, evidence of financial support from his parents in China and  written submission from his representative, which stated in part:

   Zhu Chen lodged the student visa application on 28/02/2017 to study Master of IT at
   Charles Sturt University (Sydney Campus). The proposed Master degree course duration is
   from 20/02/2017 to 22/02/2019. Zhu Chen confirms that the e-CoE issued by Charles Sturt University (00005F) is still valid. Since February 2017 to current, Zhu Chen has completed 3 trimesters of fulltime study. He also provides a current online transcript, which shows that he successfully completed 6 subjects out of total 12 subjects for the Master degree during the past 3 trimesters. He is currently studying in the 4th trimester, which ends in July 2018. If he passes all 3 subjects enrolled in this trimester, there will be only 3 subjects left. Zhu Chen is confident that he will be able complete the Master degree before February 2019 and acquire the Master degree. We would like Tribunal member to consider favourably the following facts that:

   ·even though Zhu Chen's student visa application was refused, he continue to maintain fulltime enrolments in his proposed course and has completed half of the degree; and

   ·Zhu Chen only requires 6 months' student visa to allow him to complete the remaining 6 subjects for the award of Master degree.

   There are several reasons for Zhu Chen to take the Master of IT at Charles Start University in Sydney Australia:

   ·Zhu Chen completed the Bachelor of IT from Charles Start University in October 2015. He would like to take Network Security as his future IT career in China. Zhu Chen believes Network Security will be in trend and demand in the current and future Chinese job market. He feels that his Bachelor degree only provides a foundation in IT and focuses on training CISCO engineer, which provides no specialization in network security. Therefor; he feels it necessary for him to acquire the specialized and advanced knowledge in Network Security through further studying the Master degree.

   ·Zhu Chen also think that Chinese job market is very competitive because there are huge pool of talents. In order to compete, Master degree seems become the norm and entry requirement for most popular positions. By completing a Master degree specializing in Network Security, Zhu Chen believes it will enhance his competitiveness in the Chinese job market and assist him to seize the job of his interest.

   ·Zhu Chen's parents are both willing to support his study plan financially to cover all the tuition fee, traveling and living expenses. His mother provides a signed declaration and bank deposit of equivalent $160,000 to show the financial capacity to sponsor Zhu Chen's study in Australia. Therefore, even though Zhu Chen does not work and has no income, there is no financial issue for him to take the Master degree.

   ·Comparing with different options to take the Master degree in different universities or countries, Zhu Chen still prefers to take the Master degree of IT at Charles Stint University in Sydney campus. Zhu Chen successfully completed his Bachelor degree of IT at Charles Start University Sydney campus. He is more comfortable and confident to study and complete the Master degree in the same university. Zhu Chen did make attempts in two occasions to study in University of Wollongong and University of Technology Sydney for higher ranking university qualifications, but neither was successful experience. Furthermore, the Master degree of IT at Charles Sturt University does provide speciali7ati0n in Network Security major, which suits Zhu Chen's plan to pursue Network Security as his future career. It is also not an option for him to take Master degree in China as all Master degrees in China are research based and require national entrance exams. Therefore, it is also natural for Zhu Chen to make the decision to continue his study in Australia to acquire the Master degree.

   ·In terms of Zhu Chen's visa plan, initially Zhu Chen planned to obtain Temporary Graduate Visa VC 485 — Graduate Work Stream after his graduation of Bachelor degree. The visa option is common and available to eligible graduates with 1.5 years visa duration. The visa allows holder to study or work in Australia with no restriction, which Zhu Chen think is a better visa option than student visa because it allows Zhu Chen to explore the opportunity to accumulate his IT work experience while managing flexible study load at University to suit his needs in case he find a full time job.

   ·Unfortunately, Zhu Chen's VC 485 visa application was refused as the delegate decided that he did not satisfy clause 485.222. (It is another decision under review by MIT, which is not relevant to this application.) Under that circumstance, Zhu Chen had to abandon his plan to explore job opportunity and was forced to bring forward his study plan for Master degree and apply for this student visa.

   We understand the delegate's concern that Zhu Chen has spent extensive time in Australia.
   However, if you could take a close look at Zhu Chen's study history in Australia, it is worth noting that:

   ·Zhu Chen admits that he is not academically strong and did encounter study difficulties and challenges during his study in Australia. That's why it took him almost 3.5 years to complete the Bachelor degree, which, based on exemptions, normally requires only 1.5 years. He also made two unsuccessful attempts to acquire Bachelor degree from universities with higher rankings, University of Wollongong and University of Technology Sydney. The unsuccessful attempts and efforts also cost him 4 years.

   ·However, overall, Zhu Chen did finally completed qualifications successfully with his

   effort and perseverance. The academic progress is upwards from English to Diploma to Bachelor and to Master degree;

   ·Zhu Chen's past enrolments in Australia mostly are consistently relevant to his original study plan of receiving higher education and acquiring higher degrees in Australia;

   Other circumstances
   Zhu Chen is single and does not have any relatives in Australia. He is the only child of his patents and all his family members are residing in China. Zhu Chen is not working and has no work experience. He is fully sponsored by his patents, who provide declaration and evidence of bank deposits to cover all his tuition fees, living and traveling expenses while Zhu Chen studies in Australia.

   Zhu Chen plans to pursuit his future career in Network Security in China after he completes the Master degree. He believes there will be more job opportunities in China and he will have the advantage with his Australian degrees, overseas study experience and bilingual skills. As the only child of the family, his parents both hope Zhu Chen to develop his career and also his own family in China so that he could meet with family members
   more conveniently.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 genuinely to stay in Australia temporarily.

10. 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?

11. 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.

12. 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.

13. I found the applicant to be a credible witness who gave his oral evidence in a calm, matter of fact manner without embellishment.  The applicant’s oral evidence is consistent with the written submissions and other documents provided with his review application and I am satisfied weight can be placed on the applicants’ evidence.

14. The applicant gave evidence he will in all likelihood complete the Master of Information technology program before the end of 2018, a few months prior to the formal course completion date in February 2019.  He gave evidence that eh then intends to return to China and seek employment in the information technology filed in his home country.  He said his study progression whilst he has been Australia, whilst taking a considerable length of time, has consistently been focussed upon his gaining qualifications and experience in the information technology filed.   He claimed he would have had difficulty gaining entry to a Master’s degree program in China, and that in any event that sort of degree is very research focussed in China, whereas he has sought the practical skills he can directly apply in the workforce.  The applicant gave evidence he has at times struggled with the academic study in Australia, but has persevered and successfully followed his preferred study pathway.

15. The applicant gave evidence he has had no paid employment whilst he has been in Australia and referred the Tribunal to evidence of financial support he has received from his parents to support his education and living expenses whilst he has been in Australia.  He said that both of his parents are medical specialists and that they have had no difficulty funding his studies whilst he has been in Australia.  The applicant gave evidence that he has a girlfriend in China and that they have been in a committed relationship for five years.  He said he is keen to return to China so that they can marry.  He said he has no relatives in Australia and that he lives in a shared household with friends.

16. Having considered the applicant’s evidence during the hearing and the applicant’s circumstances overall, I accept his explanation for both his study history and study goals.  I accept that the applicant does not have relatives in Australia and that he has significant family and interpersonal ties to his home country.  I accept the applicant has been financially supported by his parents in Australia and I am satisfied he does not have a clear incentive to seek to maintain his residency Australia for economic reasons.  I accept he is the sole child in his family and that his parents have an expectation eh will return to China on completion of his current post graduate degree.

17. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

18. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

    Does the applicant intend to comply with visa conditions?

19. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

20. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).  

21. While the applicant has gaps in his studies, he has provided a plausible explanation for these gaps and his current circumstances. The Tribunal takes into account the fact the applicant is currently studying and is making good progress towards completing the post graduate degree and that it is a relatively short period of study before he completes the Master of Information Technology he is currently undertaking.

22. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

23. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

24. The Tribunal has considered the applicant’s circumstances as a whole and has given weight to the applicant’s claims of wanting to improve his career prospects in China and that he is studying in a field related to his existing qualifications. The Tribunal has also placed weight on the fact the applicant has displayed consistency in his endeavours to complete his current study pathway.  

25. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

26. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

27. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    David Barker
    Member