CHENG (Migration)

[2018] AATA 623

CHENG (Migration) [2018] AATA 623 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ling Hua CHENG

CASE NUMBER:  1620481

DIBP REFERENCE(S):  BCC2016/3546446

MEMBER:Geraldine Hoeben

DATE:01/03/18

PLACE OF DECISION:  Sydney

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

Statement made on 01 March 2018 at 5:19pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether applicant is a genuine temporary entrant – Applicant did not attend hearing – Lack of evidence of Applicant’s intentions

LEGISLATION
Migration Act 1958, ss 65. 426A, 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 on 22 November 2016 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, who is a 29 year old woman from Taiwan who arrived on a working holiday visa on 6/09/13 applied for the visa on 25 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 she was not a genuine temporary student applicant.

4. On 05/02/18 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 1/03/18. The applicant was advised that she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received by the Tribunal. The preferred means of communication is by e-mail. The usual pro-forma checks were made and notice proved to be good. The applicant did not make any contact with the Tribunal to explain her absence.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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 is a genuine temporary student entrant

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 Tribunal only has to the information currently available to it on both the departmental and Tribunal files. The files raise more questions than are answered

11. The Applicant arrived on a working holiday 417 visa on 06/09/13. The Tribunal does not have access to the applicant’s tax returns and so cannot assess the balance between holiday and working activities at any time over her 5 years residence in Australia nor her reasons for later applying for a temporary student visa.

12. There are no details as to what the applicant has been doing in the past 2 years since completion of her one and only course which she completed on 09/09/16.

13. Early in her time within Australia she enrolled in business-type courses at the higher educational level. These were all cancelled.

14. She has provided no details as to what her career or study plans are. The Tribunal has not had the opportunity of raising its concerns with the applicant. As a result, there are glaring omissions in the review application which must lead the Tribunal to infer from these omissions that that she is genuine temporary student entrant.

15. In the absence of the above questions being answered and a detailed statement applicant’s intentions as to her stay, when she intends to return to Taiwan, her career plans as to how her intended study is to applied back in her country of Taiwan, the Tribunal finds that the applicant is not a genuine temporary student entrant.

16. As to the factors raised in Direction 69 the applicant has failed to make any statement at all. Indeed, the applicant has failed to make a statement on any other relevant matter.

17. 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

18. 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.

19. 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

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

    Geraldine Hoeben
    Member