Chen (Migration)

[2018] AATA 2474

Chen (Migration) [2018] AATA 2474 (4 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Miao Chen

CASE NUMBER:  1702207

DIBP REFERENCE(S):  BCC2016/3915783

MEMBER:Jennifer Cripps Watts

DATE:4 June 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 04 June 2018 at 10:26am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine student – Extended residence – Travel history – Infrequent and limited visits to home country – Lack of personal and economic ties in home country – Change of courses – Change of career direction – Financial support from family – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
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 on 31 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 21 November 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 the applicant is a genuine applicant for entry and stay as a student.

4. The visa that is the subject of this review was refused on 31 January 2017.  The applicant applied for review by this Tribunal on 8 February 2017, within time, and provided the Tribunal with a copy of the Department’s decision to refuse her student visa.  The applicant’s matter was constituted to this member and, on 16 February 2018, the Tribunal sent the applicant a written invitation to attend her hearing scheduled on 16 March 2018.    

5. The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before her hearing, specifically addressing the issue of whether she “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.”  The Tribunal attached a copy of an extract from the Migration Act 1958, Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications to the invitation, for her ease of reference.  The applicant was informed in the cover letter to the hearing invitation that she should refer to the delegate’s written decision and the reasons why she did not meet the criteria for the grant of the student visa.

6. The applicant was informed she should provide a copy of her current Confirmation of Enrolment (COE).   On 14 March 2018, the applicant provided the Tribunal with documentary information in support of her application prior to the hearing.  SMS hearing reminders were sent to the applicant on 9 and 15 March 2018.  No error or undelivered message was received back by the Tribunal.

7. The applicant appeared before the Tribunal on 16 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 is a genuine applicant for entry and stay as a student (cl.500.212) when regard is had to all relevant facts and matters and Ministerial Direction Number 69.

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

11. 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?

12. 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.

13. 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.

    Background

14. The applicant is a 27 year old citizen of China.  Up to the time of this decision, she has resided in Australia holding student or associated bridging visas since mid-2008.  Her stated career goal, at the time of application and which remains unchanged at the time of this decision, is that she wants to return to her home country to establish her own business in hospitality or seek a job in the accounting profession.  She is currently enrolled in a Bachelor of Business (Accounting) with a prospective end date of 6 May 2019.  The courses she completed prior to commencing the Bachelor degree in late 2016 were VET level courses in the hospitality and commercial cookery sector. The applicant has declared no accompanying or non-accompanying family members in her application.  She said she is not in a relationship with anyone in Australia or her home country.

15. Notwithstanding that the applicant has provided evidence of satisfactory course attendance and results, the Tribunal has formed the view that the applicant is using the student visa programme to maintain residence, which is not consistent with her claim to be a genuine temporary entrant.

16. The applicant has resided in Australia since 2008, since the age of 17.  She is now 27 years of age and has lived all her adult life in Australia where, it is reasonable to think, she has established some personal and economic ties. The applicant has spent little time in her home country over the last 10 or so years.  The applicant confirmed at the hearing that she has been back to her home country in 2008, 2012 and 2016.  She was offshore for about a month on each occasion.  On this travel history, she goes back to China once every four years, which the Tribunal considers to be a very limited and infrequent amount of time she spends outside Australia.  The applicant declares she is an only child, that her parents live in China and neither has visited her in Australia.  The Tribunal does not consider that these circumstances demonstrate she has strong or significant personal or economic ties to her home country.  It is a factual matter that the applicant has had very limited personal, face to face contact with her only immediate family members, her parents - a total of about three months on three occasions over the last 10 or so years.  

17. The applicant was asked how she finances her study and day-to-day expenses and said that her parents support her financially by sending money from China to Australia with friends, who then give the money to the applicant.  She was asked, “So every time you need to pay the fees, someone leaves Australia, goes to China, gets the money from your parents and brings it back?”, to which the applicant replied, “Yes.”  She was asked why should would not go to China and see her parents herself and get the money and said it was  because she has only limited breaks of two or three weeks at a time.  The Tribunal suggested to the applicant that two or three weeks seemed to be enough time to visit China – the applicant disagreed and said it was “too short”.  The further adds to the concern the Tribunal has about the applicant’s limited presence in her home country since 2008 and her apparent lack of incentive to return there, either for a visit or permanently. 

18. The applicant has studied in the following fields since her first student visa was granted in 2008:

    a.2008-2009      Year 12 and HSC

    b.2009-2011      Certificates III, IV Commercial Cookery, Diploma Hospitality

    c.2012-2014      Diploma and Advanced Diploma of Management

    d.2016               Hospitality Diploma

    e.2016               Commenced (current) Bachelor of Business (Accounting)

19. After finishing high school in Australia in 2009, the applicant then studied courses consistent with her career goal of wanting to start her own hospitality business in her home country.  She progressed well through the commercial cookery, hospitality and business management VET courses and gained relevant and valuable work experience, working in a café and at the Coffee Club.  She studied in this discipline until 2016 when, it is the Tribunal’s view, after spending eight years studying in Australia, she was qualified to return to her home country and meet her own stated career goal of opening her own hospitality business.

20. Instead, she chose to enrol in higher study at Bachelor level, and change career direction from hospitality to accounting.  At the time of application, and this decision, she says she may pursue a career in either when she returns to her home country.  It is not in dispute that her academic results are good in her Bachelor degree, which she commenced in 2016.  However, even allowing for students to change career direction, which is not of itself unreasonable, in this applicant’s circumstances – that is, extended residence in Australia, little time spent in her home country and very little or any reliable evidence that she has maintained strong or close personal and economic ties to her home country – the Tribunal is not satisfied the applicant considers her time onshore to be temporary or that she is a genuine temporary entrant within the meaning given in Direction Number 69 when all relevant facts are matters are considered.

21. Being a genuine temporary entrant is not just about getting good course results.  The applicant is commended for achieving good results.  However, an applicant must be a genuine applicant for entry and stay as a student, which includes the requirement that they must intend genuinely to stay in Australia temporarily.  The Tribunal must have regard to and be satisfied that the applicant’s circumstances, immigration history and any other relevant matter indicates a genuine intention to stay in Australia temporarily.   The Tribunal has considered all relevant facts and matters and is not satisfied that the applicant intends to stay in Australia temporarily, with regard having been had to her circumstances (including time already spent onshore, change in course and career direction after eight years, the limited time the applicant has spent in her home country since 2008 and the apparent lack of personal and economic ties to her home country).

22. In addition, although now having charged course direction – in 2016 - and moving from VET courses in hospitality to a higher level Bachelor degree in accounting, the applicant continues to work part time in hospitality.  The applicant gave evidence at the hearing that she is currently a manager at the Coffee Club in Hurstville - performing tasks such as making coffee, cooking, placing orders and doing the roster - and that she has worked there for about three or four years and had, before that, also worked in a café.  There is no evidence before the Tribunal that the applicant has sought or is intending to seek work experience in accounting, her new chosen field.  There is no evidence before the Tribunal that the applicant looked into whether she may study accounting in her home country, which it is reasonable to think she might have.  In addition, considering the applicant is asking the Tribunal to accept that her time in Australia is temporary, and said her course could end as soon as November 2018, she has provided no evidence of having made any plans for her future outside Australia.  The Tribunal considers her stated career goal to lack clear direction and detail.

23. The applicant was asked whether she intends to enrol in any other courses when she finishes the current Bachelor of Business (Accounting) and said she hasn’t made that decision yet.  This is of concern to the Tribunal as it is somewhat inconsistent with her claim that she intends to return to her home country when she finishes the course which has a prospective end date of May 2019, according to the COE provided.  It is noted that submissions were made at the hearing and the applicant confirmed that she may finish the accounting course as early as November 2018 because there are some subjects for which she will be granted recognised prior learning.  The Tribunal does not accept, on balance, that it can reliably find that the applicant genuinely intends to depart when she finishes the course, in either November 2018 or May 2019.

24. The applicant has provided no evidence and made no claim that there is any substantial disincentive to return to her home country such as military commitments, or political and civil unrest.  There is no reason that has been provided to the Tribunal that would suggest the applicant cannot return to her home country.

25. The Tribunal has considered all relevant facts and matters and, 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).

26. 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.

27. 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

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

    Jennifer Cripps Watts
    Member