GONG (Migration)

[2018] AATA 2190

GONG (Migration) [2018] AATA 2190 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuan Gong

CASE NUMBER:  1702450

DIBP REFERENCE(S):  BCC2017/387469

MEMBER:David Barker

DATE:2 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2018 at 4:34pm

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa– Genuine applicant for entry and stay as a student – Ceased study – Visa cancellation currently in process–  Not enrolled in a course of study – Maintaining ongoing residency in Australia – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359A, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211, 500.212, 500.218

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 10 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 30 January 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 they were not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 22 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   Background

7. The applicant is a national of China and is 26 years old.

8. The Department delegate’s decision record, a copy of which was provided with the review application, made the following points in relation to the applicant’s study history:

   ·The applicant's initial Student visa was granted based on his proposed study of UC English Language Programs, Diploma of information Technology and Bachelor of Business Informatics.

   ·The applicant arrived in Australia 21 March 2011 and commenced University of Canberra (UC) English Language Programs and completed on 3 June 2011. The applicant enrolled in but did not commence Diploma of information Technology.

   ·The applicant commenced UC English Language Programs 25 July 2011 and completed 30 September 2011. The applicant enrolled in but did not commence Diploma of Business.

   ·The applicant commenced Diploma of Business Informatics on 20 February 2012 with an extension Confirmation of Enrolment (CoE) created for implemented intervention strategy. The applicant enrolled in but did not commence Bachelor of Business Informatics.

   ·The applicant commenced Diploma of Business Informatics on 26 January 2013 and ceased study on 26 June 2013 to undertake a further English course.

   ·The applicant commenced UC English Language Programs on 22 July 2013 and completed on 27 September 2013. The applicant enrolled in but did not commence Diploma of Business Informatics.

   ·The applicant's Higher Education Further Stay student visa was granted based on his proposed study Diploma of Business and Bachelor of Commerce. The applicant commenced Diploma of Business on 21 October 2013 and completed on 10 October 2014 with an extension COE created for implemented intervention strategy. The applicant enrolled in but did not commence Bachelor of Business Informatics. The applicant did not commence Diploma of Business, but deferred to commence on 9 February 2015, and ceased study 20 November 2015 due to Exclusion — lack of academic progress. The applicant enrolled in but did not commence Bachelor of Commerce.

   ·There is a visa cancellation currently in process for this applicant.

   ·The applicant has resided in Australia for almost six years as a Student visa holder. Since the applicant's initial arrival in Australia in March 2011 he has commenced and completed UC English Programs only. He has regressed in his study subject choices, and he has demonstrated he has not progressed his level of study. The applicant provided a Genuine Temporary Entrant Criterion statement in which did not address these issues.

9. On 26 February 2018, the Tribunal wrote to the applicant inviting him / her to attend a hearing on 23 March 2018. That invitation among other matters, requested the applicant 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.

10. On 15 march 2018, the Tribunal received documents from the applicant including evidence of his enrolment in a Certificate IV in Accounting and Diploma of Accounting and a written statement from the applicant, dated 6 February 2017, which was a copy of a document he had previously provided to the Department.

11. The written statement from the applicant stated

    My name is [the applicant]. I was born in Henan Province, China. On 08/06/2010, I was awarded a secondary education certificate in [detail provided]. After that, I chose to study in Australia for my future.

    The reasons for choosing to study accounting are as follow:

    Since I graduated from senior middle school, I have applied for a bachelor degree majoring in Commerce in University of Canberra. Although I have experienced some difficulties during my study in University, I am very interested in accounting courses. Every business needs an accountant to control costs. Since I want to set up a business in China after graduation, I have to equip myself with basic knowledge in the field. Let alone I could be a professional accountant if I applied for a position in any other company in future. The fierceness of labor market in China and my ambition motivated me to study diploma of accounting in Australia.

    The reasons for studying in Australia are as follow:

    I would like to study in Australia, because I enjoy learning environment here. In addition, the climate is pleasant. When I was studying in University of Canberra, I was amazed by its cultural diversity, friendly teaching staff and high education quality. I made many good friends as well. Therefore, it would be enjoyable to study in Australia.

    Secondly, the certificates and degrees awarded from Australia do have more weights than the local counterparts in China. That is another important reason why I decide to further my study in Australia. I believe I will harvest another success in Australia.

    Thirdly, my parents believe, the country is one of the safest places for an overseas student. In their points of view, my safety is always their biggest concern. Australia therefore is their first choice.

    The reasons for choosing to study in Australian Ideal College are as follow:

    I heard about Australian Ideal College (MC) from one of my classmates in the university. She experienced extra career advantages when she came back China. She found a decent job in Beijing soon after. Therefore, I started to research about MC from various online resources. It is located in the heart of Sydney, where takes five minutes on walk from Town Hall station. There are over twenty bus routines cover the area.

    Besides convenient commuting, Australian Ideal College provides students with the essential knowledge, competencies and professional attributes, required by middle level of accounting. Compared with the courses in University of Canberra, my classmate told me the certificate courses in Ideal College were easier, because I had learned some of them before. I am confident that I can complete all my certificate and diploma courses in Australian Ideal College. I need prove myself to my parents and friends that I can be a top student as well.

    My economic situation

    The financial situation of my family is fairly good. My parents are very supportive to my study plan and we have sufficient financial capacity. It is enough for me to pay the further tuition fee and living expenses in Australia. Currently, my parents have deposited $57,800.00 in my account. The sufficient financial support will let me to focus on my study.

    In future, I will go back china as long as I complete my diploma courses of Accounting. Because both of my parents remain in China, I will come back to China to take the responsibility to take care of them. Should any further inquiry, please do not hesitate to contact me. I do appreciate your kindness and understanding.

    The Hearing

12. The applicant gave evidence he is not studying at the current time.  He said he most recently attended classes in his course in January 2018.  He said he completed most, but not all assignments associated with the Certificate IV in Accounting at Ideal College during 2017.  He said he needs to complete two assessment items before he can complete the Certificate IV in Accounting and that he is currently enrolled in the Diploma of Accounting course.

13. In response to a question from the Tribunal as to why he had not provided any certificates to show that he had successfully completed any course during the period he has been in Australia on Student visas, despite being asked to do so in the hearing invitation he received from the Tribunal, the applicant said he passed a language course three or four years ago and can provide evidence of his completion of this and other courses if he is given time to do so. 

14. At a further point in the hearing the applicant said he needs the opportunity to complete a diploma or degree level course in Australia if he is to have any chance to gain a good job or undertake further study back in his home country.  The Tribunal told the applicant this would appear to suggest he had to date not completed any courses in Australia.  The applicant said he just wants to complete the course he is currently enrolled in and then undertake further study at the university level in Australia, so that he has a good qualification when he returns to China. 

15. The applicant gave evidence he is in relationship with another student from China who has around 12 months remaining on the master’s degree program she is currently studying.  He said they intend to return to China together when she completes her course and that they both need to do so, as they are both the only child in their respective families.  In response to a comment from the Tribunal that his evidence regarding his hope to study a university degree in Australia after he completes the Diploma of Accounting in October 2018 is not consistent with his evidence he intends to return to China with his girlfriend in approximately 12 months time, the applicant said there is nothing contradictory from his point of view.  He then said his current highest level of education is high school and that if he does not gain a further qualification in Australia his prospects of good employment or further education in his home country will be very limited.  He said that even if he can get a diploma it will be better than returning to China with no qualifications from his time in Australia.

16. The applicant said he has no military service commitments in China, nor fears to return there because of political circumstances in China or civil unrest there.

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

17. The Tribunal put particulars of information, from a recent check of the Provider Registration and International Student Management System (PRISMS) to the applicant, pursuant to s.359AA of the Act, after first explaining to him this information could provide the reason, or part of the reason for affirming the decision under review. The Tribunal explained to the applicant that he could request time to consider his response and that the Tribunal would consider any such request.

18. The particulars of the information put to the applicant were that:

    ·     his enrolment in a Diploma of Business Informatics, which was to run from October 2013 to June 2014, was cancelled due to his non-commencement of studies;

    ·     his enrolment in a Bachelor of Business Informatics, which was to run from August 2014 to June 2016, was cancelled due to his non-commencement of studies;

    ·    his enrolment in a Diploma of Business, which was to run from October 2014 to January 2016, was cancelled due to unsatisfactory progress in his studies;

    ·    his enrolment in a Bachelor of Commerce, which was to run from February 2015 to December 2016, was cancelled due to his non-commencement of studies;

    ·    his enrolment in a Certificate IV in Accounting, which was to run from January 2017 to January 2018, was cancelled;

    ·    his enrolment in a Diploma of Accounting, which was to run from January 2018 to October 2018, was cancelled due to his non-commencement of studies;

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

19. The Tribunal explained to the applicant that this information was relevant because it appears to indicate he is not currently enrolled in a course of study at the present time.  The Tribunal told the applicant that if the Tribunal relies on that information it may find he does not meet a threshold requirement for the grant of a Student visa and that if the Tribunal finds he is not studying and does not have an offer of enrolment, it will affirm the decision to refuse the Student visa. 

20. The Tribunal also told the applicant the information is relevant because it appears to indicate he has not undertaken studies in a number of courses in which he had enrolled and that if the Tribunal relies on that information it may find he is not a genuine student and that he is rather using student visas to maintain his residency in Australia and that if the Tribunal finds he does not intend to genuinely remain in Australia temporarily it will affirm the decision to refuse the Student visa.

21. The applicant said he did not want further time to consider his response and proceeded to make the following points in response to the particulars of information put to him from his PRISMS student records:

    ·When he first arrived in Australia he enrolled in an Information Technology course and went to classes, but later changed courses. He changed his course and that is why his academic achievements were not satisfactory, he didn’t study well and he admits to that;

    ·In between he went to hospital to see a psychologist. He thinks the school should have those records that he gave the school a letter from the psychologist.  This is why he failed subjects and didn’t continue to study at the University of Canberra. He needed to pass 12 subjects and he only passed eight subjects;

    ·In his last term he failed two subjects and he was asked to attend the director’s office.  He did not feel comfortable about this and that is why he went to see the psychologist, who gave him a letter to take with him to the director.  The director did not take him seriously and told him that it was useless and told him to get out.  The college director did not give him a chance, but he agrees that prior to that he did not study well.  He said in the later part of his study he has been doing better;

    ·The Tribunal mentioned the confirmation of enrolment for his certificate for an accounting course was cancelled in November 2017, but he enrolled in this course in January 2017. He questioned why they would have waited until November 2017 to cancel his enrolment if he is not attending classes and doing the required homework during most of the 2017 period;

    ·he does not have a certificate to show he has complete the accounting course because he still has two assignments he needs to hand in.

22. The applicant requested further time to provide evidence of his studies during 2017 and his ongoing enrolment in a course and the Tribunal consented to this request and told the applicant that any comments or response he wished to provide to the Tribunal should be provided to the Tribunal by 26 March 2018.  The Tribunal subsequently received no further submissions or other documents from the applicant, with regard to this or the other matters he referred to in his response during the hearing.

    Oral submissions from representative

23. The applicant’s representative said he had no further evidence to submit regarding the applicant and submitted that administrative error may have accounted for some of the information on the PRISMS records, such as when a particular course was cancelled because the applicant had transferred to a different course and that the recent certificate for an accounting course may have been cancelled because he has yet to finish the assessments associated with this course and the college has not issued him a further confirmation of enrolment that would provide him time to submit the required assessment tasks.

    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.

25. The issue before the delegate was whether the applicant met the criterion in cl.500.212. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

26. 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.

27. ‘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.

28. The Tribunal has considered the evidence provided by the applicant during the hearing and that contained in the Department and Tribunal files. The Tribunal consented to the applicant’s request for further time to consider what response he would make to the particulars of information put to him pursuant to s.359AA of the Act regarding the PRISMS records of his studies in Australia. This included evidence as to past medical issues affecting his studies at the University of Canberra, his attendance at the most recent course he claims to have studied in and his ongoing enrolment in courses of study. The applicant has not provided any subsequent comments, submissions or documentary evidence to the Tribunal in relation to this information or other claims he made during the hearing.

29. On the basis of the available evidence the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

30. 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

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

   David Barker
   Member