Chiang (Migration)

[2019] AATA 3551

Chiang (Migration) [2019] AATA 3551 (23 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ting-Yu Chiang

CASE NUMBER:  1720973

HOME AFFAIRS REFERENCE(S):           BCC2017/2541818

MEMBER:Mark Bishop

DATE:23 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 23 April 2019 at 12:16pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – limited course progress – lengthy residence in Australia – limited knowledge of proposed education provider – no information on current studies – unclear value of courses to the applicant’s future – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cl 500.212

CASES

Hasran v MIAC [2010] FCAFC 40

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 28 August 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 17 July 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 the applicant appeared to be using the student visa program as a means of extending his stay in Australia and did not genuinely intend to stay in Australia temporarily as a full time student.

4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a copy of the applicant’s immigration, enrolment and education history. The decision record contained the detail of the applicant’s PRISMS record.

5. On 7 February 2109 the Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal, including information in relation to enrolment. The Tribunal did not receive any response to that written invitation. That is, the review applicant has not provided the Tribunal with any further information other than that which was provided to the Department.

6. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act.  That invitation stated that it is a requirement of the student visa that the applicant is enrolled in a course of study and that the applicant is a genuine applicant for entry and stay as a student and requested information which goes towards both criteria. The invitation was sent to the review applicant’s nominated address, being the address provided by the review applicant in connection with this application for review. 

7. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).

8. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

9. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

10. In these circumstances, the Tribunal has proceeded to make a decision having regard to the information before it, including the information previously provided by the applicant to the Department.

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

12. 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.

    Enrolment (cl.500.211) and GTE criteria (cl.500.212)

13. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

14. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

15. On 7 February 2019 the Tribunal wrote to the applicant and advised it is a requirement of the visa for you to be “enrolled in a course of study and a genuine applicant for entry and stay as a student”. The Tribunal asked the applicant to provide “…information, in writing about the course(s) of study you are undertaking…” The applicant did not respond to this request for information.

16. The applicant responded to a request for information from the Department with a five (5) sentence advising he wished to enjoy the beautiful country and also learn English. The Tribunal has considered this statement.

17. In his application for a student visa dated 17 July 2017 the applicant advised he (then) held two Confirmation of Enrolments (COE’s) (COE numbers 8F2A1A43 and 8F2A6C24) (DF: 15) for enrolment in two short term  five months Certificate courses in Spoken and Written English. These two COE’s have expired and are no longer valid.

18. The applicant did not respond to multiple requests for information as to enrolment in a course of study from the Tribunal.

19. The applicant did not provide a copy of a current COE to the Department for enrolment in a course of study.

20. The applicant did not provide a copy of a current COE to the Tribunal. There is no evidence before the Tribunal the applicant is currently enrolled in a course of study.

21. The applicant provided a statement dated 13 September 2017 to the Tribunal. The applicant did not provide a statement to the Tribunal that he was enrolled in a course of study. The applicant attached copies of two COE’s (as outlined in paragraph 17 above). Both COE’s had expired. The applicant did not provide a current COE to the Tribunal. The applicant did not provide any evidence of current enrolment in a course of study to the Tribunal.

22. There is only limited information available to the Tribunal.  There is no additional information before the Tribunal that postdates the brief written submission of 13 September 2017.

23. The applicant has not provided evidence to the Tribunal that shows current enrolment in a course of study.

24. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study. The Tribunal does not make a finding concerning cl.500.211 of Schedule 2 to the Migration Regulations.

25. The Tribunal now turns to consider GTE criteria as outlined in cl.500.212 below.

26. 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.

27. The Tribunal has considered the applicant’s circumstances in his home country.

28. The applicant claims in his application he has completed his most recent education, a Bachelor of Information Management at Hsing Wu University, Taiwan. The Tribunal acknowledges the applicant has been employed previously between the periods of February 2013 to December 2014 in the capacity of builder with Rong Kao Construction.

29. The Tribunal has considered that the applicant has not attempted to continue any kind of studies in his home country since completion of his Bachelor degree. The Tribunal places weight on the fact that the applicant has not utilised the Bachelor of Information Management qualification in any form of employment since completing the degree.

30. The Tribunal notes the applicant has not provided any evidence to suggest title to any assets or any business ties in his home country that would compel him to return on completion of the proposed course. The Tribunal has considered the extent of the applicant’s personal ties to his home country and whether these circumstances would serve as a significant incentive to return to the applicant’s home country. The Tribunal acknowledges the applicant has personal ties in his home country in the form of his parents and sibling. However, the Tribunal finds that these ties do not, of themselves, constitute a strong incentive to return home when considered against the fact the applicant has no dependent family and no evidence of significant economic circumstances. The Tribunal has concerns as to the applicant’s incentive to return to his home country upon completion of his proposed studies in Australia.

31. The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant is proposing to undertake Certificate I in Spoken and Written English, and a Certificate II in Spoken and Written English. According to the COE’s provided by the applicant to the Tribunal the time for completion of both courses has now finished. The Tribunal notes the applicant was granted a Working Holiday Visa TZ-417 on 26 June 2015. The applicant has not provided any evidence of personal ties to Australia that would serve as an incentive for them to remain at the completion of their proposed studies.

32. The Tribunal acknowledges the personal statement the applicant has provided in support of his application. The Tribunal finds the applicant has demonstrated no knowledge of the proposed education provider, course contents, educational objectives and visa conditions the applicant would be subject too. The applicant failed to make the Tribunal aware of any progress in the two courses. The applicant failed to provide any detail as to course completion. The applicant’s lack of familiarity and lack of provision of information to the Tribunal brings into question his understanding of what his circumstances will be in Australia, and how the applicant has assessed the course as being beneficial to their future without understanding its contents. This fact is concerning as given the significant financial outlay and international travel required it is reasonable to expect the applicant to have a more detailed insight into his intended courses in Australia and of course outcomes and future intent as to study and enrolment if any after December 2018.

33. The Tribunal does not consider the applicant has shown a realistic level of knowledge that an applicant would be expected to know regarding his potential circumstances in Australia. The Tribunal serious concerns regarding the applicant’s personal circumstances including his family ties and the comparatively greater economic opportunities in Austral

34. The Tribunal has considered value of this course to the applicant’s future. The Tribunal has considered the statement provided in support of the application. The applicant claims in his application after completion of the proposed study he will return to his home country to pursue building his own construction company.

35. The time for completion of the two courses in English has expired. The applicant has not provided to the Tribunal any evidence of current enrolment in a course of study. The applicant has not advised the Tribunal of the outcomes of his previous studies in English. There is no evidence before the Tribunal the applicant is currently enrolled in a course of study. Under these circumstances it is difficult for the Tribunal to reach a conclusion as to the value of any course when the detail of that course of enrolment is not provided.

36. Based on the limited available information the Tribunal does not find compelling cause for the applicant to travel to Australia at significant expense to pursue the proposed study when the applicant’s career goals could be adequately served in their home country. The Tribunal is not satisfied that the applicant has demonstrated the value of any proposed course to the applicant’s future.

37. The Tribunal has given regard to the applicant’s immigration history. The Tribunal notes applicant was granted an initial Working Holiday Visa TZ-417 on 26 June 2015 and an extension to the Working Holiday Visa TZ-417 on 31 August 2016. The extended Working Holiday Visa TZ-417 remained in effect until 28 July 2017. Thereafter the applicant has resided in Australia pursuant to a Bridging visa.

38. The Tribunal notes the delegate made a finding that the departmental system, Provider Registration and International Student Management System (PRISMS) indicated that the applicant was provided with a packaged course certificate of enrolments to study Certificate I in Spoken and Written English, and a Certificate II in Spoken and Written English on 6 June 2017.

39. When taking this into consideration in conjunction with other aspects set out in this decision record, it raises concerns that the applicant may be intending to use the student visa program to remain in Australia as a de facto resident. Therefore the Tribunal is not satisfied that the applicant will return to his home country at the end of his proposed stay in Australia. After reviewing the information submitted with this application and contained in the Departmental and Tribunal files the Tribunal finds that these matters are relevant to this decision as the Tribunal finds that serious concerns remain regarding the applicants intention to remain in Australia temporarily.

40. 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

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

    Mark Bishop
    Member