Deng (Migration)

[2018] AATA 5954

Deng (Migration) [2018] AATA 5954 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Shi Yun Deng
Mr Dongpei Du

CASE NUMBER:  1702549

DIBP REFERENCE(S):  BCC2016/2598468

MEMBER:David Barker

DATE:5 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 05 June 2018 at 10:35am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) –genuine temporary entrant – consent to decision without hearing – enrolment in multiple courses in unrelated subject areas – evidence of completion of courses – evidence of current enrolment – proposed enrolment at lower level – value of study to current and future employment – incentives to return or stay – use of student visas to maintain residency – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cls 500.211(a), 500.212(a), 500.311

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 25 January 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 5 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 they were not satisfied the applicant genuinely intends to stay in Australia temporarily.

4. The applicant was invited to appear before the Tribunal at 9:30 am on 22 March 2018 to give evidence and present arguments. The Tribunal received a hearing response on 2 March 2018 indicating the applicant intended to attend the hearing. However, at 8:36 am on 22 March 2018, the Tribunal received an email from the applicant’s representative stating the applicant had decided not to attend the hearing.  At 9:15 am on 22 March 2018 the Tribunal received a further email from the applicant’s representative confirming the applicant would prefer the Tribunal to consider her review on the paper documents available to it, without a hearing.

5. The Tribunal has accordingly proceeded to make a decision on the basis of the information available to it and for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

6. The applicant is a national of China and is 28 years old.

7. The Department delegate’s decision record, a copy of which was provided with the review application states that the applicant was granted her initial Student (Class TU subclass 571) visa offshore on 11 April 2006 and subsequently arrived In Australia on 19 May 2006.

8. The delegate had regard to the Provider Registration and International Student Management System (PRISMS) which documented the applicant’s study history in Australia.  This history indicated that at the time of applying for the visa in August 2016 the applicant had enrolled to undertake a Diploma and Advanced Diploma of Interpreting and an Advanced Diploma of Translating. 

9. The PRISMS record indicated the applicant has been enrolled in and completed the following courses since her arrival in Australia:

   ·Advanced Diploma of Translating

   ·Bachelor of Business (Accounting)

   ·Diploma of Business Administration

   ·General English (Beginner to Advanced) (5 to 72 weeks)

   ·Diploma of Information Technology (Multimedia)

   ·Certificate III in Printing and Graphic Arts (Graphic Pre-press)

   • Certificate II in Information Technology
   • Senior Secondary (Years 11 and 12)
   • Junior Secondary (Year 10)
   • English foo High School Years 7 to 12 (Beginner to Advanced) (10 to 40 weeks)

10. The delegate expressed concern that since arriving in Australia in 2006 the applicant has completed secondary school and courses in: Information Technology, Printing and Graphics Arts, Business Administration, Business (Accounting) and Translating and that her proposed further study for a Diploma and Advanced Diploma of Interpreting was at a lower academic level than what she had previously studied and in a field, unrelated to her previous study. The delegate noted the applicant had not provided any substantial reasons as to why she had chosen to study the interpreting courses.  Further to this the delegate noted that the applicant provided an employment letter which indicated she has been working as an Office Administrator since October 2015 and her duties include translating and interpreting processes. The delegate found that given the courses she had already completed, the work experience she had acquired and the fact that her Graduate Work (485 visa) assessed her as holding a General Accountants professional skill level, the interpreting course appears to be of little benefit to the applicant’s future in the professional accounting field.

11. The delegate noted the applicant had not undertaken any study during the period she was on the subclass 485 visa, despite having no conditions restricting her studies whilst on this visa.  The delegate also raised concern that since arriving In Australia in May 2006 the applicant has departed Australia only once, for a total of 64 days. The delegate noted the applicant provided the Department with a medical certificate stating she suffered from [Medical condition] and should avoid long distance travel. The delegate accepted this to be a reason for her lack of travel to her home country, but that the applicant had not provided any evidence of substantial ties to her home country which would indicate that she has stronger incentives to return to China in preference to remaining in Australia. The delegate found this was compounded by the fact that the applicant’s partner, (the second named visa applicant) who had been on his own student visas till August 2015 has since that time being a dependent on the applicant’s Student visas.

12. The hearing invitation sent to the applicant by the Tribunal, among other matters requested she provide an explanation of any gaps in her enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether she intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked her to provide a written statement addressing this issue by referring to Direction 69, which was attached.

13. On 22 March 2018, the Tribunal received documents from the applicant including:

    ·a written statement from the applicant, dated 21 March 2018;

    ·a letter from Western Sydney University, dated 16 March 2018, confirming receipt of an application for admission to a Bachelor of Languages and Linguistics;

    ·evidence of the applicant’s previous academic studies including:

    i.Higher School Certificate, dated 13 January 2009

    ii.Certificate III in Printing and Graphic Arts, completed October 2009

    iii.Certificate II in information technology, completed December 2009

    iv.Diploma of Information Technology (Multimedia), completed October 2010

    v.Diploma of Beauty Therapy, as at 6 July 2011 and 20 December 2011

    vi.Diploma of Business Administration, issued 12 November 2012

    vii.Bachelor of Business (Accounting), issued 28 August 2014

    viii.Advanced Diploma of Translating, issued for November 2016

14. The written statement from the applicant, dated 21 March 2018, stated:

    My hearing is scheduled at 9:30 am tomorrow. Now is 11:20pm at night, I am feeling [symptoms of Medical condition]. I have taken chilling pill and still cannot go to sleep. I am really scared to face you and worried about the outcome. I start to have [symptoms]. So I am so sorry to inform you that I cannot attend the hearing.

    I and my representative have prepared some documents as requested. I have asked my representative to forward to you. I am truly a genuine student in Australia. I have been an International student In Australia for 8 years. I have kept good study performance and maintained satisfactory attendance in class. Although I have adjusted my career goals several times (this Is quite common among Chinese students), I always put in a lot of efforts and take it serious on my studies no matter what I have chosen. In all my previous studies I have never failed even one subject.

    I am going to undertake a bachelor's degree course in translating and Interpreting In July this year after completing of an advance diploma of this course. I have applied enrolment with University of Western Sydney and now am waiting for university's offer letter. I have got used to and adopted to Australian study environment. I want to complete all my studies here before I take my career and step into Chinese society. Please allow me to fulfil the target.

    I thank you for your kind consideration. I sincerely apologize for any inconvenience caused to you because of my absence of the hearing under this condition. Should you have any query or require any further documents in relation of this, please do not hesitate to contact me.

    Particulars of information put to the applicant pursuant to s.359A of the Act

15. In the interest of procedural fairness, the Tribunal sent the applicant a letter pursuant to s.359 of the Act, which invited her to comment on particulars of information which would, subject to her comment or response, provide the reason, or part of the reason for affirming the decision under review. The particulars of the information put to the applicant in this letter was that the Provider Registration and International Student Management System (PRISMS) student record indicates:

    ·the Diploma of Interpreting, in which she was enrolled commenced in November 2016 and finished in April 2017;

    ·the Advanced Diploma of Interpreting, in which she was enrolled, commenced in June 2017 and finished in January 2018;

    ·she has not produced any certificates or other evidence to show she has successfully completed these courses;

    ·she provided evidence of an application to do a Bachelor of Languages and Linguistics at Western Sydney University, but no evidence she has been offered enrolment in this course;

    ·there is no indication on the PRISMS records that she is currently enrolled in any course of study.

16. The s.359A letter explained that this information is relevant because it appears to indicate the applicant is not currently enrolled in a course of study and that if the Tribunal relies on that information it may find she does not meet a threshold requirement for the grant of Student visa.   The letter explained that if the Tribunal finds she is not studying and does not have an offer of enrolment, it will affirm the decision to refuse the Student visa.

17. The s.359A letter also put to the applicant that her movement records indicate she has not departed from Australia or returned to her home country since February 2009 and that this gives rise to concern she has not maintained strong ties to her home country, which would provide her with an incentive to return to her home country.

18. The s.359A letter also put to the applicant that she has provided no further medical evidence, since a brief medical report dated 14 December 2008, which would provide any indication she is currently constrained from undertaking travel because of a medical condition.  It is also not apparent from the medical report which was prepared in China, why she returned to Australia when that medical report advised against unnecessary long distance travel.

19. The s.359A letter explained that this information is relevant because it raises concern there are no current or recent constraints on the applicant’s ability to travel to her home country for the purpose of seeing relatives she may have there, or to look into her possible future employment options there, or to have looked into whether she could have undertaken similar courses in China to which she has undertaken in Australia.

20. The s.359A letter also put to the applicant that she has provided no information as to how she has financially met her education and general living expenses in Australia in recent years.  The letter explained that this gives rise to a concern her paid employment in Australia would provide her with a financial incentive to remain in Australia. 

21. The s.359A letter explained that if the Tribunal relies on some or all of this information it may find the applicant is using student visas to maintain her residency in Australia, rather than for the purpose for which they are intended and that if the Tribunal finds she does not have an intention to genuinely remain in Australia temporarily it will affirm the decision to refuse the Student visa.

22. The Tribunal received a response from the applicant on 27 April 2018, which included:

    ·a written statement from the applicant, dated 27 April 2018;

    ·a Confirmation of Enrolment (CoE) for a General English (Elementary to Upper Intermediate) course running from 16 April 2018 to 8 June 2018;

    ·a letter from Western Sydney University, dated 3 April 2018, confirming acceptance into a Master of Interpreting and Translation course running from 30 July 2018 to 15 July 2020;

    ·a Record of Results from the Sydney Institute of Interpreting and Translating, dated 4 November 2016, pertaining to the applicant’s participation in an Advanced Diploma of Translating;

    ·a letter, dated 22 December 2016, from the National Accreditation Authority for Translators and Interpreters, stating the applicant had been accredited as a one-way professional translator from the English language into the Chinese language;

    ·a written statement from Zhiyang Deng dated 27 April 2018 stating he is the applicant’s uncle and that he travels between China and Australia a few times per year and normally brings cash to the applicant from her parents amounting to between $7,000 to $8,000 Australian dollars per trip;

23. The applicant’s written statement stated:

    The PRISMS student record Indicates:

    ·The diploma of Interpreting, in which you were enrolled commenced In November 2016 and finished in April 2017;

    ·The Advanced Diploma of Interpreting, In which you were enrolled, commenced in June 2017 and finished in January 2018;

    ·You have not produced any certificates or other evidence to show you have successfully completed these courses;

    ·You provided evidence of your applying to do a Bachelor of Languages and Linguistics at Western Sydney University, but no evidence you have been offered enrolment in this course;

    ·There is no indication on the PRISMS records that you are currently enrolled In any course of study.

    This information is relevant because it appears to indicate you are not currently enrolled in a course of study at the present time. If the Tribunal relies on that Information it may find you do not meet a threshold requirement for the grant of Student visa.

    Reply:

    ·I have attached my SIIT Advanced Diploma transcripts issued on November 2016 and NAATI certificate which awarded on 22/12/2016, NAATI has accredited as a one-way Professional Translator from the English language into the Chinese language.

    ·I have been working as an administrator with PAC Trading Pty Ltd since September 2015. The company is an international trading company dealing with clients in both Australia and China. One of my key tasks Is translating various documents between English and Chinese. During this period, i realized that my translating skill is not good enough to cope with daily work, In order to improve my interpreting skills (Translator from Chinese language into the English language) I spent one more year (Year 2017) to study at SIIT

    ·I have attached Master of Interpreting and Translation offer letter for July Intake from Western Sydney University

    ·I have attached ECOE from Advance English

    You movement records Indicate you have not departed from Australia, or returned to you home country since February 2009. This gives rise to concern you have not maintained strong ties to your home country, which would provide you with an Incentive to return to your country.

    You have provided no further medical evidence, since brief medical report dated 14 December 2008, which provide any indication you are currently constrained from undertaking travel because of a medical condition. It is also not apparent from the medical report which was prepared in China, why you returned to Australia when that medical report ad vised against unnecessary long distance travel.

    This information is relevant because It raises concern there is no current or recent constraints on your ability to travel to, your home country for the purpose of seeing relatives you may have there, or to look into your possible future employment options there, or to have looked into whether you could have undertaken similar courses in China to which you have undertaken in Australia.

    Reply:

    I came to Australian to study Year 10 since 2006, and then I am keeping studying in Australia. After I was noticed by doctor with [Medical condition], I am just simple thinking "I will stay in Australia until completing all my studies". Both of my parents have stable job in China, and I do not need to find Job Immediately to support my parents. I have more flexible to choose which course I like to study.

    You have provided no Information as to how you have financially met you education and general living expenses in Australia in recent years. This gives rise to a concern you may be in paid employment in Australia, which would provide you with a financial incentive to remain in Australia. If the Tribunal relies on some or all of this information it may find you are using student visas to maintain your residency in Australia, rather than for the purpose for which they are intended. If the Tribunal finds you do not intend to genuinely remain in Australia temporarily it will affirm the decision to refuse the student visa.

    Reply:

    I have attached my uncle's statement to stating my financial.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. 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 issues in the present case are whether the applicant is enrolled in a registered course and, if so, whether she has a intends genuinely to stay in Australia temporarily.

    Is the applicant enrolled in a course?

25. 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.

26. ‘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.

27. At the time of the applicant’s request that the Tribunal undertake the review without her attending a hearing, the Tribunal had access to information which showed she was not studying and did not have a current offer of enrolment in a registered course.  Subsequent to the particulars of this information and the implications of her lack of enrolment being put to the applicant, pursuant to s.359 o the Act, she has provided evidence of her enrolment in a General English (Elementary to Upper Intermediate) course running from 16 April 2018 to 8 June 2018 and a Master of Interpreting and Translation course running from 30 July 2018 to 15 July 2020.

1. Accordingly, the Tribunal is satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is met.

   Is the applicant a genuine applicant for entry and stay as a student?

2. 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?

3. 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.

4. 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.

5. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

6. The Tribunal has concern the applicant is using the Student visa program to essentially maintain her residency in Australia for economic and other reasons, rather than to progress academically so as to improve her future life in her home country. 

7. The Tribunal is unconvinced by the applicant’s claims as to the necessity of her undertaking further studies in Australia.  Given the qualifications she holds, including as an accountant and the evidence of her accreditation with NAATI as a one-way translator, as well as her current employment in which she states she has a role translating documents between the English and Chinese languages, it is not apparent to the Tribunal why she is not well equipped to return to her home country and seek appropriate skilled employment.

8. The Tribunal has an unresolved concern that the PRISMS records indicated she was not enrolled in a registered course on the date she was due to appear before the Tribunal and that the evidence of enrolment that she has produced appears to have been secured by her after she has received the s.359A letter from the Tribunal highlighting her apparent lack of enrolment.  The Tribunal has also noted with concern that the applicant has failed to provide evidence of her successful completion of the Diploma and Advanced Diploma of Interpreting she had enrolled in during the 2017 period.  In response to the s.359A letter, which highlighted this and other concerns, the applicant provided evidence as to her participation in translating courses she had undertaken during 2016.  The Tribunal has concern the applicant has not demonstrated she completed any courses in which she was enrolled in the period from November 2016 to January 2018 and notes there is no explanation before the Tribunal for what appear to be a very considerable gap in her studies.

9. The Tribunal is not satisfied the applicant has demonstrated she has a clear plan for her future employment in China, nor a convincing explanation as to why she has not returned thee and sought appropriate employment before the present time.

10. The Tribunal has placed weight on the stability of the applicant’s employment in Australia.  She has worked as an administrator with PAC Trading Pty Ltd since September 2015.  In light of the applicant’s inadequate response to the concern, put to her in the s.359A letter, that paid employment may provide her with a financial incentive to remain in Australia, the Tribunal’s concerns are not resolved.  The applicant has not provided the Tribunal with any bank records, payslips or ATO tax assessments that may shed light on her employment income.  She has not provided any bank records to demonstrate the extent of any savings she may have separately, or jointly with her husband.  The Tribunal has reviewed the document, purportedly from her uncle attesting to funds he has periodically transported from China to the applicant, but without independent third-party documents, such as bank records or remittance receipts, the Tribunal has placed no weight on this evidence.

11. The Tribunal accepts that the applicant has relatives in China, but also notes the second named visa applicant is her husband, who resides with her in Australia. The Tribunal did not find the applicant’s explanation for her lack of travel back to her home country convincing.  In forming this view the Tribunal has reviewed the very limited amount of medical evidence she has provided but is not persuaded this adequately demonstrates she has an ongoing constraint, because of psychological or other impairments, from undertaking air travel to China.  The Tribunal notes that this issue was one of the particulars of information put to her in the s.359A letter. The applicant’s explanation for only having made one trip back to China, resulting in her being offshore for 64 days since her arrival in Australia in 2006, was because she wished to complete all of her studies and did not need to return to China because her parents are both in secure employment.  Taken at face value, this claim is indicative of the applicant not having strong ties, to either her parents or to her home country, which may provide her with an incentive to return there.  The Tribunal is unconvinced the applicant’s ties to her home country are stronger than she has developed to Australia, given the close family connection and stable employment she now has in Australia.  The tribunal is not satisfied the applicant has demonstrated she does not have an economic incentive to maintain her residency and employment in Australia.

12. Based on what is evidenced of the applicant’s circumstances overall, including her immigration and study history, her circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that she intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

13. 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).

14. 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.

15. 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.

    Member of Family Unit – Secondary visa applicants - affirm

16. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

17. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the second named visa applicant is unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.500.212. Accordingly, the second named visa applicant does not meet cl.500.311.

18. For these reasons, the decision under review must be affirmed.

    DECISION

19. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    David Barker
    Member