GU (Migration)

[2019] AATA 3931

GU (Migration) [2019] AATA 3931 (3 June 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Ms XIN GU
Mr YONG LIU
Mr ZECHEN LIU
Mr ZELING LIU

CASE NUMBER:  1727273

DIBP REFERENCE(S):  BCC2017/2598898

MEMBER:  Roger Maguire

DATE AND TIME OF

ORAL DECISION AND REASONS:          3 June 2019 at 11:51 am (QLD time)

DATE OF WRITTEN RECORD:                22 August 2019

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decisions under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – motivated by children’s schooling in Australia – value of course – employment offer not contingent on completion of current course – length of stay in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 31 October 2017 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 3 June 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in the matter of Mrs Chen Gu Tribunal file number 1727273 and dependent applicants Mr Yong Yu, Xelin Yu and Xekan Yu. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 October 2017 to refuse to grant the applicants a student (temporary) (Class TU) visa under section 65 of the Migration Act (the Act).

4. The applicant applied for the visa on 21 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.

5. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the applicant did not intend to reside in Australia temporarily.

6. The Tribunal had before it a copy of the delegate’s decision record dated 31 October 2017. The Tribunal also had access to the relevant file of the Department of Immigration and Border Protection.

7. The applicant appeared before the Tribunal on 3 June 2019 to give evidence and present arguments. For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

   Consideration of Claim and Evidence

8. The criteria for a Subclass 500 (Student) visa are set out in part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by the applicant. The issue in the present case is whether the applicant is a genuine temporary entrant, a genuine applicant for entry and stay as a student.

9. Clause 500.212 requires as follows. The applicant is a genuine applicant for entry to stay as a student because:

   (a) The applicant intends genuinely to stay in Australia temporarily having regard to:

1. The applicant’s circumstances; and

2. The applicant’s immigration history; and

3. If the applicant is a minor the intentions of parents, legal guardian or spouse of the applicant and any other relevant matter.

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1. The applicant intends to comply with any conditions subject to which the visa is granted having regard to:

2. The applicant’s record of compliance with any conditions of a visa previously held by the applicant (if any); and

3. The applicant’s stated intention to comply with any conditions to which the visa maybe subject.

4. Of any other relevant matter.

   Does the Applicant Intend Genuinely to Stay in Australia Temporarily?

1. In considering whether the applicant satisfies clause 500.212(a) the Tribunal must have regard to Direction number 69 assessing the genuine temporary entrant criterion for student visa and student guardian visa applications made under section 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 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;

   ·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.

2. The Direction indicates that the factors specified should not be 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.

3. The delegate’s decision record was provided to the Tribunal by the applicant at the time of application. The Tribunal is not bound by the decision record but may have regard to it. The decision record noted that the applicant arrived in Australia on 30 July 2006 as the holder of a Student (TU 573) visa granted offshore on 21 July 2006 and valid to 15 March 2008. Except for the period from 22 July 2013 to 22 July 2017 when the applicant held a Temporary Work (Class UC subclass 457) visa the applicant has been on either a student or associated bridging visas since her arrival.

4. At the time of application the applicant was enrolled to undertake courses in an Advanced Diploma of Translating and a Diploma of Interpreting (LOTE-English). The applicant had previously been enrolled in a Master of Business Administration and Graduate Diploma of Business Administration and Master of Business. The current application was made on 21 July 2017.

5. The applicant had received a job offer as financial director of Xu Xu Wan Kwang Technology Co Limited but had not returned home to take it up. The applicant had changed study fields. The applicant’s spouse and children were with herein Australia. The applicant was seeking to extend her stay in Australia to over 12 years. The applicant had undertaken no study whilst the holder of a 457 visa.

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1. The applicant had supplied an employment letter with a commencement date of October 2018. The applicant had provided no other evidence of ties to her home country.

2. On 2 April 2019 the applicant was sent a letter requesting information regarding current enrolment in the registered course as well as information demonstrating that she is a genuine applicant for entry and stay as a student.

3. On 16 April 2019 the applicant delivered a response to the Tribunal stating amongst other things the applicant had studied English at Xuzhou Institute of Technology from September 2003 to June 2005 prior to coming to Australia but had no work experience prior to coming to Australia.

4. The applicant has since returned to China eight times between 2006 and 2016 but not since. The applicant has taken short trips to Bali, Fiji and New Zealand between 2015 and 2018. The applicant had no pending visa applications and has never been refused a visa or had a visa cancelled or considered for cancellation. The applicant has no concerns about military service commitments or political or civil unrest in her home country.

5. The applicant has completed the following courses: a Master of Business in 2010, and a Master of Business Administration in 2013.

6. The applicant had failed to complete the following courses: a Diploma of Interpreting in 2018, and an Advanced Diploma of Translating in 2018. The applicant is currently studying a Diploma of Social Media Marketing. The applicant said that she did not finish her interpreting and translating courses as she got pregnant and had to care for her baby.

7. When the applicant did return to study she did not return to the courses she failed to complete but opted instead to study a Diploma of Social Media. The applicant still wants to study interpreting and translating in Australia.

8. The applicant previously worked fulltime at Mango Mix earning $60,000 per annum between 2013 and 2017 but did not disclose any income or employment since June 2017 but declared annual expenses of $49,800.

9. The Tribunal noted that the applicant has listed two children who are minors as dependents in the application before the Tribunal and has had a third child, also a minor, not the subject of the present application. The Tribunal asked the applicant what are her intentions for her minor children.

1. If she is successful in her review application: and

2. If she is unsuccessful in her review application.

1. The applicant replied if her application is successful she plans to go back to China during Christmas time because in late November her son is doing year 4 and her son will be finished year 4 by then. The applicant said that she finish her study in August as the course she is doing now is a short term course, which lasts only for three months. The applicant said that whether she is successful with this application or not she intends to return to China. If she is unsuccessful with this application she will go back directly.

2. The applicant was asked if she still wanted to remain in Australia until her son finishes year 4 in November and replied “Yes”. The applicant said her second son is currently in year 1. The applicant said the academic year starts in July in Chinese schools and the children will have to wait for as long as a year before commencing school in China if she goes back. The

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Tribunal has had regard to the applicant’s response regarding her intentions for her minor children in reaching its decision.

The Applicant’s Circumstances in Her Home Country

1. The Tribunal accepts that the applicant has no concerns regarding military service commitments in her home country and that there are no circumstances of political or civil unrest which would directly or indirectly affect her.

2. At the hearing the Tribunal noted that the applicant is currently living in Australia with her spouse and children and has returned to her home country numerous times but has not done so since May 2016 even though she has had two job offers.

3. Adopting the procedures under section 359AA of the Act it was put to the applicant she had not given any other evidence of significant ties to her home country and that all of these matters might lead the Tribunal to find that she has no significant incentive to return to her home country. And that if the Tribunal so finds it might be all or part of the reason for affirming the decision under review.

4. The applicant responded that she understood this and was asked to comment or respond or request additional time before doing so, if she wished. The applicant responded and said her children did not come here in 2006 and she came by herself. She went back to China for two years and she and her husband spent another two years in Australia. Both her children came here in 2015 and her second son was born in Australia and sent to China until he was about two and a half. For the majority of time she spent in Australia it was only her and her husband here.

5. She and her husband are of the one child generation and between them they have four elderly people for whom they must care, so they have to go back to China. The applicant said that she really wants to go back to China because her parents are old. Her last employer’s business went bankrupt and he could not offer her a job anymore and she is not currently working as she is studying and breastfeeding.

6. The applicant said her last course in translating and interpreting was paid for by her employer in China and the employer has also paid her study fees again for the social media course she is presently undertaking. They have also offered her a job with a good salary and she is happy to go back. The applicant said that she had already had a contract for work in China and there is no connection between the contract and the course she is studying. The employer told her that if she has time in Australia to study something else she should undertake her current studies. The applicant said her next job starts in March 2020.

7. The employer is a new technology development company in Hunan Province, which has been operating for more than 10 years. The applicant said that in Hunan Province she owns three apartments and her parents own a clothing factory also in Hunan Province and she estimates the combined value at three to four million yuan or at least $700,000 to $800,000 Australian.

8. The Tribunal accepts the applicant’s evidence that she has some incentive to return to her home country but finds that her primary motivation to remain in Australia seems to be her desire for her children to complete the current academic year in Australia.

   The Applicant’s Circumstances in Australia

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1. The applicant volunteered to tell about her financial situation and said that she has $200,000 in the bank in Australia and that is sufficient to fund her expenses for her proposed stay in Australia.

2. The Tribunal put to the applicant that she’s completed substantial qualifications and the current enrolment is mainly to pass the time in line with her employer’s suggestion and that her current primary motivation to remain in Australia does not seem to stem from her own study but rather from her consideration of the schooling of her infant children.

3. Adopting the procedures under section 369AA the Tribunal put to the applicant that these are circumstances which might lead the Tribunal to find that the applicant is not using the student visa program for the purpose for which it is intended, namely her education, and if the Tribunal so found this might be all or part of the reason for affirming the decision under review.

4. The applicant confirmed that she understood this and was asked to comment or respond or request additional time before doing so, if she wished. The applicant replied and said her children are only one aspect, it is not very important. When she was applying for the visa she did not take her children’s schooling into consideration and she only started to think about their education later.

5. The applicant said that the purpose for her to apply for the student visa is because her employer asked her to do so as the employer would like her to obtain knowledge in this area otherwise she would return as she already has qualifications and work experience. During the period of time that the applicant was waiting for the visa to be determined and if her children cannot complete their study it would be better if they could finish their study.

6. The applicant voiced concern about flying with her newborn baby at such an early age. The applicant said that the information regarding her children are additional factors but not her primary consideration.

7. The Tribunal has considered the applicant’s reply and finds that the applicant’s continued presence in Australia is not primarily motivated by her own study but rather by her desire for the children to complete the academic year in Australia.

8. The Tribunal showed the applicant a copy of her PRISMS record, which showed that her current enrolment is due to finish on 8 May 2020. The applicant responded that her teacher had told her that it was only a 20 week course and was given a short break to contact her education provider. After the break the applicant said that she will finish her course in March 2020. The applicant said that the course cannot be completed online. The applicant said that she would complete the course and then return to China to start her job on 28 March 2020. And the applicant said that she can do the last stage of the course online.

9. The Tribunal has considered this response and in the whole of the circumstances of this case finds that the applicant is using the student visa system to maintain residence in Australia.

   The Value of the Course to the Applicant’s Future

10. The applicant was asked what is her remuneration under the contract if she has to commence work in China in March 2020 and replied her basic wage will be the equivalent to $60,000 Australian and that she will also be given three per cent of the shares in the company. The applicant confirmed that that job is not contingent on her completion of her current course of study; it is just that she did not have any knowledge or use of social media and the company started online sales in March this year. The immigration consultancy also

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recommended the short course to her as she does not have to spend too many hours on it as she is breastfeeding.

1. The applicant said that the contract is for a period of five years and the only thing that would stop the contract going ahead is if the company went bankrupt.

2. The Tribunal accepts the applicant’s evidence and finds that she has already secured good employment with or without the completion of her current course of study and that the current course of study is at best only of marginal interest to her employment prospects.

   The Applicant’s Immigration History

3. Adopting the procedures under section 359AA of the Act the Tribunal put to the applicant that the duration of her stay in Australia and current circumstances suggest that the applicant is using the student visa program primarily to maintain residence in Australia and if the Tribunal so found it might be all or part of the reason for affirming the decision under review

4. The applicant confirmed that she understood this and was asked to comment or respond or request additional time before doing so, if she wished. The applicant responded and said that there are no other reasons for her to stay in Australia but her employer’s request and that she has no other reasons to stay in Australia.

5. Adopting the procedures in section 359AA of the Act the Tribunal put to the applicant that she first entered Australia in 2006 and is seeking to stay until March 2020 and even allowing for the period when she was on a 457 visa this still represented a stay in excess of 10 years and a stay of this duration is not consistent with temporary entry as a student and suggests that she is using the student visa program to maintain residence in Australia. And if the Tribunal so found it might be all or part of the reason for affirming the decision under review.

6. The applicant confirmed that she understood this and was asked to comment or respond or request additional time before doing so, if she wished. The applicant responded and said that she did not have any comments to make.

7. Based on the above circumstances the Tribunal finds that the applicant is using the student visa system primarily to maintain residence in Australia. The Tribunal finds that the applicant’s immigration history weighs heavily against her. Considering all of the foregoing the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet clause 500.212(a) of the Schedule 2 to the Regulations. And the decision of this Tribunal is that the decision under review is affirmed.

   DECISION

8. The Tribunal affirms the decisions under review.

   Roger Maguire
   Member

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