CHONG (Migration)

[2019] AATA 2873

CHONG (Migration) [2019] AATA 2873 (13 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss HIU TUNG CHONG

CASE NUMBER:  1719891

HOME AFFAIRS REFERENCE(S):           BCC2017/2145169

MEMBER:Meredith Jackson

DATE:13 June 2019

PLACE OF DECISION:  Brisbane

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 13 June 2019 at 11:12am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – factors that impaired academic progress – changed area of study – cancelled courses – incentive to return to home country – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 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 16 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 18 June 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 delegate was not satisfied the applicant intends genuinely to stay in Australia temporarily.

4.The applicant appeared before the Tribunal on 5 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages but opted to answer most questions directly, with some reliance on the interpreter.

5.The applicant was assisted in relation to the review by their registered migration agent. The agent did not attend the hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7.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.

8.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?

9.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, which is attached to this decision, 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.

1. 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.

Case summary

1. The applicant is a 23 year old citizen of Hong Kong Special Administrative Region of the People’s Republic of China. She came to Australia to study English in July 2013. She was granted a visa for the higher education sector in September 2014 but failed to study above a low, vocational level. She claims her age and poor grasp of English were the reasons she did not progress. After the visa was refused, and while awaiting review, she completed a Diploma of Information Technology and commenced a Bachelor of Information Technology at Griffith University. She claims that on the completion of the degree in October 2020, she will return to her home country to rejoin her parents and seek work in an IT field.

Oral and written evidence submitted

1. The applicant submitted academic transcripts of her studies at Griffith University and its associated colleges and institutes, including letters of support from her academic lecturer and academic advisor at one of them, Griffith College. The letter from her lecturer dated 9 May 2018, states, in part: Heidi (Ms Chong) is a stand-out student due to her commitment, determination and quality of work. I believe that she has the intent, determination and capability to do very well at university.”  A letter from her academic adviser dated 8 May 2018 states: “Heidi has maintained excellent rates of attendance during her study at Griffith College in the range of 88-97%. Heidi was under 18 years of age when she started studying in Australia, and did not know what area of study was most interesting to her. She has now found both success and interest in studying IT and I believe can complete this program in good time, should she be given the opportunity continue her study in Australia.”.

2. The applicant made personal written submissions to the review in which she claimed she was “only an 18 year old girl” at the time she came to Australia in 2013, and that she struggled with study in part because of her English difficulties. She also claimed that she was confused when she came to Australia and started business courses “like a lot of overseas students”, but found she was not interested in business. In that time she learned to use information technology and became interested in programing. She stated that she had now found the right course and was confident of completing her information technology degree.

The hearing

1. At the hearing, the Tribunal, under section 359AA of the Act, referred the applicant to information about her held in the Provider Registration and International Student Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision. The Tribunal outlined the information in the database, which captures a chronological record of the applicant’s academic history in Australia: her enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and the applicant was invited to comment on it. The Tribunal asked the applicant if she wished to seek further time to consider it. The applicant said she was prepared to comment on the information immediately after it was read to her and said she understood it and why it was relevant to her case. She stated that the record was substantially correct.

2. The applicant claimed that the main reason she had taken six years of study to reach a point where she could be confident of completing degree-level study is that she had overcome her difficulties in English and this had allowed her to progress. In response to the Tribunal’s concerns that she had been in Australia for six years, had invested heavily in education, switched courses often, and had many courses cancelled, and therefore it might be drawn that she was seeking to extend her stay in Australia through the student visa program; the applicant said this was not the case, she was only 18 when she came to Australia and became very confused about what to do. The applicant claimed that she had now settled on a study course that interested her, and, at the completion of her information technology (IT) degree in October 2020, she would return to her parents in Hong Kong and seek work either in Hong Kong or China, in what she regarded as the burgeoning field of software development. She felt the opportunities in Hong Kong or China outweighed those in Australia for someone in her position and with her prospective qualifications.

3. The applicant claimed she could not have studied as successfully in Hong Kong as in Australia. While some teaching in Hong Kong was in English, she argued it was not taught in an English language context, so studying in Australia was of direct benefit to her future, particularly in the IT industry where English and its context was important.

4. There were no issues preventing her from returning to Hong Kong; the opposite was the case, in that her parents were there and she needed to return to them where they would no longer be “disappointed in me, because I will have a degree”. The applicant said in Australia, she lived with her maternal uncle and her brother, also a student, but this was not the equal of living near her parents. Her father had a good job there and they were an important reason for her to return.

5. The applicant claimed the reason she had not visited Hong Kong often since she arrived in Australia, but instead, her mother came to Australia to see her, was so that she and her brother would not interrupt their concentration on their studies by travelling.

6. In relation to her projected return on six years of investment in Australian education, the applicant claimed that investment in education could not be readily quantified but was justified; that her prospects in Hong Kong or China would be enhanced by her qualifications and would outweigh her prospects in Australia.

7. The applicant stated she had not applied for visas other than her student visas and claimed she did not intend to apply for a graduate or work visa. She said she had not travelled to other countries or applied for visas elsewhere.

Consideration and conclusions

1. The Tribunal has considered the applicant’s claims against the specified factors in Direction 69, including the circumstances in her home country, potential circumstances in Australia, and the value of the course to the applicant’s future. The Tribunal has considered the applicant’s immigration history and all relevant information provided by the applicant, and information otherwise available to the Tribunal.

2. The Tribunal has considered the applicant’s claim that she was 18 years of age when she arrived, newly out of high school, without academic English and with little guidance as to what to study, and these factors had impaired her academic capacity. The Tribunal concludes there is some merit to the applicant’s claim. While there is no doubting that she started poorly as a tertiary student, by the age of 23 she is in a degree program that she has a good prospect of completing next year, according to her academic supporters and her own statements, and has her eyes on an information technology career in her own country.

3. The applicant’s claim that now she has settled on a course of study that interests her, at the completion of the IT degree in October 2020, she will return to her parents in Hong Kong and seek work either there or in China, in what she regards as the burgeoning field of software development. The Tribunal concludes there is some validity in the claim, in that Australian qualified students are competitive in China, provided they have studied successfully at a high level in a good quality institution. Despite the applicant’s shaky start, she has achieved clear progress towards this end by age 23 and is moving towards a degree qualification from a reputable university.

4. In relation to the Tribunal’s concern, expressed at the hearing, that while the applicant and her parents would have invested heavily in her education over six years if the visa were granted, the applicant stated than investment in education cannot be quantified or dismissed lightly if it is productive. The Tribunal sees some merit in this argument and while it considers the extent of the investment, in the applicant’s case, is large but, current academic indications for this student, is not likely to be unrewarded. The applicant has accrued, however haphazardly, qualifications in English language, which will stand her in good stead, in business administration, however modestly, and in IT, where she is on track to conclude her studies with a degree of direct relevance to her proposed future in software development.

5. In relation to the factors encouraging the applicant to remain in Australia, compared with those encouraging her return to Hong Kong, the applicant claims she will go home as required because she wants to be near her parents and where there is work in her field. In relation to the Tribunal’s expressed concern that she might find having a maternal uncle in Australia, along with a brother, to be factors encouraging her to remain here beyond her studies, the applicant expressed with some emotion that she needed to go home to repay her parents.

6. Taking all the applicant’s claims into account, and weighing them against the Tribunal’s concerns that she might be using the student visa program to extend her stay in Australia, therefore might not be a genuine temporary entrant, the Tribunal concludes that the weight is with the applicant’s claims to a temporary stay. She is embarked, somewhat belatedly, on a relevant degree course, has a plan to apply her qualifications in her home country, where her parents live, and genuinely considers that there are greater opportunities to work in her field there than there are in Australia.

7. Taking all of the above into consideration, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

8. 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.

9. 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

1. 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.

Meredith Jackson
Member

Attachment – Direction No.69

DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

(Section 499)

I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

Dated: 18 April 2016

Peter Dutton

Minister for Immigration and Border Protection

Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

Part 1 of Direction No. 69 - Preliminary

Name of Direction

This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

It may be cited as Direction No. 69.

Commencement

This Direction commences on 1 July 2016.

Interpretation

Act means the Migration Act 1958.

Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Regulations mean the Migration Regulations 1994.

Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Spouse has the same meaning as the definition of the term in section 5F of the Act.

Student visa means a Subclass 500 (Student) visa

Student Guardian visa means a Subclass 590 (Student Guardian) visa.

Application

This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

Preamble

The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

a.the applicant’s circumstances; and

b.the applicant’s immigration history; and

c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

d.any other relevant matter.

This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

Part 2 of Direction No. 69 - Directions

Assessing the genuine temporary entrant criterion

1. Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.

2. Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

   a.considering the applicant against all factors specified in this Direction; and

   b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

3. Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

4. Circumstances where further scrutiny may be appropriate include but are not limited to:

   a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

   b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

   c.the applicant intends to study in a field unrelated to their previous studies or employment; and

   d.apparent inconsistencies in information provided by the applicant in their Student visa application.

5. An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

The applicant’s circumstances

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

The applicant’s circumstances in their home country

1. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

   a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

   b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

   c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

   d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

   e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

2. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

The applicant’s potential circumstances in Australia

1. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

   a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

   b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

   c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

   dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

   e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

Value of the course to the applicant’s future

1. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

   a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

   b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

   c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

The applicant's immigration history

1. An applicant’s immigration history refers both to their visa and travel history.

2. When considering the applicant’s immigration history, decision makers should have regard to the following factors:

   a.Previous visa applications for Australia or other countries, including:

   i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

   ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

   b.Previous travels to Australia or other countries, including:

   i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

   ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

   iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

   iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

1. If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

Any other relevant matters

1. Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.