Cheng (Migration)

[2018] AATA 3180

Cheng (Migration) [2018] AATA 3180 (3 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sai Ho Cheng

CASE NUMBER:  1703791

HOME AFFAIRS REFERENCE(S):           BCC2016/3679376

MEMBER:Mark Bishop

DATE:3 August 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 03 August 2018 at 9:50am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant criteria – Holder of multiple student, bridging or work visas – No offer of employment in home country – Limited ties to home country – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 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 and Border Protection on 14 February 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 4 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 that the applicant intended genuinely to stay temporarily in Australia.

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

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 meets the genuine temporary entrant criterion.

   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. The applicant provided a signed written statement dated 18 April 2018 to the Tribunal consenting to the Tribunal deciding the review without a hearing.

11. The applicant provided a statement to the Department dated 17 February 2017 that outlined the following:

    ·He graduated from RMIT in 2012 with a Bachelor of Multimedia in 2012. He now wished to consolidate his foundation in professional programming;

    ·He worked construction, found it challenging. His current interests were in ICT;

    ·He developed an interest in programming whilst studying at RMIT. He believed a Diploma level course could offer practical skills;

    ·The applicant advised he had over stayed a previous visa in January 2014;

    ·The applicant applied for a working holiday via in 201 because he wanted to travel around Australia;

    ·The applicant enjoyed living in Melbourne, profited from his education experience  and believed his Bachelor degree from RMIT made him suitably qualified to obtain work in Hong Kong;

    ·He has lived in the same premises in Windsor since 2012;

    ·The applicant wished to study at Diploma level so he might find a job in programming;

    ·He applied for VC 485 visa in 2013 to remain in Australia. Upon application he discovered his Bachelor degree in Multimedia was a combination of design and programming and this could not be approved by the relevant skills assessment authority in Australia. Accordingly he withdrew his application and returned to Hong Kong;

    ·The applicant did not return to Hong King principally because of cost reasons. He instead communicated with his family using social media tools. He advised this assisted with family bonding;

    ·His four sisters have their own family obligations so eventually he will have to look after his now ageing parents;

12. The Tribunal wrote to the applicant on 12 April 2018 requesting information under s.359(2) of the Act in the following terms:

    ·As you applied for this visa on the basis of undertaking a course of study in Australia, it is a requirement for the visa that you are enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.

    ·Accordingly, you are now invited to give, in writing, information about your proposed course(s) of study and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information questionnaire attached with this letter. The information requested should be given by completing the attached questionnaire and returning it to us.

13. On 24 April 2018 the Migration Agent for the applicant requested an extension of time to provide the requested information. The Tribunal granted the request until 10 May 2018. On 8 May 2018 the applicant provided the following information to the Tribunal:

    ·Statement by the applicant that outlined the following matters:

    oBackground and summary of reasons for the refusal by the Department of the application for a student visa;

    oThe applicant is a single man, without dependent children and his family lives in Hong Kong. His mother suffers with a liver tumour;

    oThe applicant is an only son. As such he has responsibilities of looking after his parents;

    oThe applicant got engaged to his girlfriend in April 2018. Their long distance relationship is sweet and stable. He will marry in Hong Kong in December 2018;

    oThe applicant has enrolled in a  VET level course after prior completion of a Bachelor of Design to enhance his skills for future career opportunity;

    oHe had worked in construction for a 12 month period. Construction is not a steady job with a stable income in his home country. . His real interests are now ICT;

    oHe has completed all requirements for a Certificate IV in IT and is currently studying a Diploma in Software Development.

    ·The applicant provided a Statement of Results for his enrolment in a Certificate IV in IT. The Statement of Results showed that the applicant was competent in 8 subjects and not yet competent in 3 subjects. The Statement of Results is not a Graduation Certificate in this course;

    ·The applicant provided a Confirmation of Enrolment (COE) in the Certificate IV in IT. It showed only part payment of tuition fees;

    ·The applicant provided a COE in a Diploma of Software Development from January 2018 until 21 December 2018. The COE showed that no tuition fees had been paid;

    ·The applicant provided a patient copy of a discharge slip for a Ms Ng Sok Ching from St. Teresa’s Hospital. The discharge slip provided some technical detail as to the principle procedure and investigation and follow up drug treatment. The discharge slip did not offer any prognosis as to the patient’s condition;

    ·The applicant provided a copy of a reference from the Keung Kee Construction Ltd Company in Hong Kong. It provided the following detail:

    oThe applicant worked full time as a foreman in the construction company from February 2014 until December 2014;

    oHe has multi tasked in terms of administration, document preparation, communication, on-site ordering and processing;

    oHe has developed practical knowledge and skill

14. The applicant provided a further statement to the Tribunal dated 18 April 2018.

15. The statement advised the applicant graduated high school in 2003, had worked construction in 2014 and earned a salary of approximately A$17,000 in that period. The applicant advised he had a working holiday visa from April 2014 until November 2016. The applicant advised he had completed an English language course at AMES in 2004 and his VCE at Maribyrnong College in 2005. In the period March 2006 until December 2012 the applicant advised he had enrolled in two Bachelor level courses at RMIT and completed a Bachelor of Multimedia System (Design). The applicant advised he had not completed a Bachelor of Interior Design at RMIT.

16. The applicant advised he had visited family on three occasions from 2004 until 2014 and stayed with family in Hong Kong during 2014 when he worked in construction. He had applied for and been granted a visa to visit Taiwan in September 2014. The applicant advised he had family including siblings resident in Hong Kong. He last saw his parents and two of his sisters in 2014 and saw his other two sisters in 2018.  His close friends lived in Australia and he saw them during the month of this statement.

17. The delegate recorded that the applicant had been resident in Australia since 2003 on various student, bridging or work and holiday visas. This is the 6^th application for a student visa since 2003. Excluding most of 2014 the applicant has been continuously resident in Australia. In addition the applicant advised his girl-friend (soon to be wife) has been significant periods of time in Australia and they have continuously occupied the same premises since 2012. In that period of time the applicant has completed one Bachelor level degree.

18. The Tribunal has considered all the above information. The Tribunal has regard to Ministerial Direction Number 69.

19. The Tribunal has regard to clause 9 of Direction 69 the applicant’s circumstances in his home country.

20. The applicant is a 33 year old man. He has no dependants. His immediate family live in Hong Kong. The applicant advises his parents are ageing and his mother suffers from a liver tumour. He has not provided any advice as to her current condition. Excluding most of 2014 the applicant has been a resident of Australia. Despite a lengthy absence during 2014 the applicant managed arrangements to maintain a lease on an apartment he has lived in Windsor since 2012.  He has rarely returned home to Hong Kong and few of his family members visit him in Australia.

21. The applicant did not outline any business interest in Hong Kong, property holdings or other assets that might provide him an income or be a reason to return to Hong Kong. The applicant did not advise of any family companies that might offer employment or opportunity in his home country. The applicant advised he did not wish to pursue construction work in his home country. The applicant did not advise of any community links to his home country. The applicant advised his living expense in Australia were approximately $23,000 per annum. The applicant holds a Bridging visa A with condition 8547 attached. This condition states “the holder must not be employed by any 1 employer for more than 6 months…”. The applicant did not advise of any remittances from his home country. The applicant did not offer any advice that his family were wealthy.

22. The Tribunal is of the view the applicant’s personal ties to his home country are limited and do not act as a significant incentive to return to Hong Kong. The Tribunal is of the view the applicant’s economic circumstances in Australia present as a significant incentive not to return to his home country.

23. The Tribunal has regard to clause 11 of Direction 69 the applicant’s potential circumstances in Australia.

24. The applicant has been a resident of Australia for almost the entire period of his adult life. He has studied, worked, travelled and maintained a residence in Australia. In his written statement he advised he sees his close friends in Australia. He advised the advice of his friends to return to Australia after 2014 was critical in his decision making.

25. The Tribunal is of the view the applicant’s ties to Australia have built over time and are now almost permanent. Those ties present as a strong incentive to remain in Australia. The Tribunal is of the view the applicant is using the student via program to circumvent the intentions of the migration program and maintain ongoing residence.

26. The Tribunal has regard to clause 12 of Direction 69 the value of the course to the applicant’s future.

27. The primary objective of a Student visa holder in Australia must be to study a registered course and progress academically. According to Departmental records this is the applicant’s sixth application for a student visa and as he has previously completed a Bachelor of Design, and is now enrolled in a packaged course in Certificate IV in Information Technology and Diploma of Software Development. The Tribunal finds it unlikely that his current enrolment in low level, inexpensive Diploma courses in the Vocational Education and Training Sector will provide him with more relevant career skills than those that he have previously completed.

28. The Tribunal has regard to clause 13 and 14 of Direction 69 the applicant’s immigration history.

29. The applicant’s immigration record shows that he first arrived in Australia in November 2003 on a Student (Class TU subclass 545) visa. The applicant advised the Tribunal he rarely visits home and provided information he has returned home on very few occasions since 2003. In this application he has included enrolments to undertake courses which are due to conclude in December 2018. This will bring his total time in Australia on student visas or associated bridging visas to 9 years. The Tribunal finds the significant period of time the applicant has spent in Australia since his initial arrival suggest his potential circumstance in Australia outweigh any incentive to return to Hong Kong.

30. The applicant provided evidence of enrolment in a Certificate IV in IT with passes in 8 subjects, failed in 3 subjects and enrolled in 3 subjects. The applicant did not provide any proof of graduation in this course. The applicant provided evidence of enrolment in a Diploma of Software Development. The applicant did not provide any evidence of passing any subjects in this course although the first semester concluded on 29 June 2018.

31. The Tribunal is of the view the applicant is using the student visa program primarily for maintaining residence in Australia and that the applicant has undertaken a series of short, inexpensive courses and has been onshore for some time without successfully completing a qualification.

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.

    Mark Bishop
    Member