Guo (Migration)

Guo (Migration) [2018] AATA 802 (21 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Haiyan Guo
CASE NUMBER:  1700177
DIBP REFERENCE(S):  BCC2016/2943940
MEMBER:Penelope Hunter
DATE:21 March 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 21 March 2018 at 5:37pm
CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Enrolled in further English courses – Working as a tourist guide in Australia – Plans to enrol in tourism courses – Single mother – Plans to educate daughter in Australia – Using the student visa program to maintain residence in Australia
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994 Schedule 2 cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 December 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 5 September 2016. 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.
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 the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.
The applicant appeared before the Tribunal on 28 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
The applicant is a citizen of China, and first arrived in Australia on 4 March 2016.
In China last study undertaken by the applicant was the completion of secondary high school in 1994.
The applicant applied for the visa in order to undertake study in course of General English with course dates from 29 September 2016 until 14 July 2017.
In a statement in support lodged with her application the applicant set out the following information;
i.She had worked as a manager assistant at the China Life Insurance Fujian Funding Department since 2003. She had not taken any further study to enrich herself and she was concerned that she was losing her competitiveness. She had realised that English was a useful and powerful tool.
ii.Good English skills could also help the applicant tutor her daughter in her future study and her proposed course would not take her long and was reasonably priced.
iii.While in Australia as a tourist she became attracted to the country and the applicant submitted that it could provide a better environment for learning that her home country.
iv.After she had finished her English course she would return to China, to her parents and daughter. She is a single mother and cannot leave her daughter for too long. She will not take further courses in Australia and will go back to the insurance company and will to obtain a higher positon with the company.
In response to a request for further information from the delegate the applicant provided a letter from her education institute confirming attendance, a copy of her divorce documents and a further submission. In this submission the applicant set out the following new information;
i.She chose to study in Sydney due to her cousin who helped her to find an education agent in Sydney.
ii.During the several months in Australia she had made a plan for her daughter regarding her future study. In this plan her daughter would study in Australia from primary school. As a guardian must stay with children during their primary school study she believed that better English skills would help her when her daughter came to Australia.
iii.She had not undertaken any studies in the past since secondary school for several reasons. Firstly because she had worked for her uncle’s company for almost 10 years. This company was busy and she had no time for study. She also married, and had her daughter a short time after that, and had to care for her family. After her daughter had grown she found a new job with China Life Insurance Company and had not had a chance to undertake further study.
The delegate in their decision, a copy of which the applicant has submitted to the Tribunal, set out the following reasons for refusing the visa;
i.It was considered that the applicant not demonstrated how the completion of the proposed course would substantially benefit her. Rather it indicated that she did not intend to stay temporarily in Australia, it was considered that she was using the student visa program as a means to maintain ongoing residence.
ii.There was no evidence to support the initial claim by the applicant that she would use her studies as a mean to obtain a higher position in her employment, or that English would be of benefit to her career.
iii.The applicant’s later submissions contradicted her earlier claims that she would return to China and her previous place of work.
At the hearing the applicant provided the Tribunal with a Certificate of Achievement for a course of General English – Upper Intermediate, with course dates from 10 October 2016 to 10 November 2017; Confirmation of Enrolment (CoE) in a course of General English(Beginner to Advanced) with course dates from 26 September 2016 to 14 July 2017, CoE in a course of General English (Beginner to Advanced) with course dates from 4 September 2017 to 10 November 2017, CoE in a course of General English (Beginner to Advanced) with course dates from 17 November 2017 to 17 April 2018; letter of attendance from the Crown Institute and letter from teacher Alice Martin.
The applicant confirmed that she had enrolled in further English courses than those originally contemplated when she applied for the visa. She planned to study a further upper intermediate English course for 6 months, and then she told the Tribunal, her agent had recommended that she undertake a Diploma or Degree of Tourism. With this qualification she claimed that she could get a better job in China as there are many tourists that come to Australia from China. This course would take her another 2 years and then she wanted to obtain a level 5 IELTS test before she returned to China. She had not herself undertaken research into potential job opportunities in China but took advice from her uncle.
The Tribunal also discussed with the applicant her circumstances in Australia and in her home country. It explored her future intentions, the relevant criteria in Direction 69 and other relevant matters.
CONSIDERATION OF CLAIMS, FINDINGS AND REAONS
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 satisfies cl. 500.212 of Schedule 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?
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.
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.
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.
The Tribunal acknowledges that the applicant has undertaken and completed several courses of study in English in Australia. This however is the expectation of all students in similar circumstances to the applicant on student visas.
The Tribunal has concerns about the reasons provided by the applicant for her study in Australia. The conflicting information provided by the applicant to the Tribunal, and the Department, regarding her reasons for study, undermine her credibility and the reliability of her claims. The Tribunal questioned the applicant about her initial submission that she needed to learn English to obtain a promotion in her employment at China Life Insurance Company. In response, the applicant gave evidence that English was not required for her position in Insurance companies in China, and now that she had been resigned for over a year she did not think she would gain a better position. Clearly on this evidence her initial submissions to the Department lacked validity. The applicant was then asked to explain why she had also claimed in submissions to the Department that she needed English as she had a plan to educate her daughter in Australia. The applicant responded that after she had done research, she realised that the fees for her daughter to study in primary school were too expensive, so she could not afford it and she changed her mind. Again, this reason presented for the applicant to study English in Australia is without foundation. The applicant’s reasons for study to the Tribunal were so she can build a career in Tourism, however she had not previously worked in this industry prior to arriving in Australia and she has not provided to the Tribunal any evidence of employment or career opportunities in this industry in China. The applicant also said that she originally thought of studying childcare but after a while her uncle advised her there were more opportunities in Tourism. This submission undermined the initial claim of the applicant that she was only going to undertake one short English course and return to her home country. In addition to damaging the reliability of the claims of the applicant as to her reasons for study in Australia, this changing intention also suggested to the Tribunal that the applicant intended to use the student visa program as a means of remaining in Australia.
The Tribunal was also not satisfied as to the relevance of the applicant’s proposed study. Despite the applicant’s claim that she was concerned that she was losing her competitiveness and she wanted to explore opportunities for promotion, she conceded at the hearing that she had not herself undertaken any actual research into employment opportunities in China, once she had obtained further qualifications. Further adding to the Tribunal concerns was the applicant’s claims that her uncle had connections and would provide her with opportunities for employment. The Tribunal confirmed with the applicant that her uncle was the same person who had previously employed her for several years in China, in a lighting business, as disclosed in her resume. The Tribunal does not find it credible that there would be opportunities provided to the applicant in the future, if the applicant’s uncle could not provide these opportunities to her after she had worked for him for over 10 years. I the absence of actual evidence of a position the Tribunal was not satisfied that further employment would be forthcoming. Tribunal is not satisfied as to the relevance of the applicant’s intended study to her future in her home country or that she has been genuine in her reasons for undertaking study in Australia.
The Tribunal has considered the submissions by the applicant’s representative at the hearing that her initial submissions were prepared by her agent and had perhaps been manipulated by the agent and this could be a reason for the inconsistency. However the submissions contain personal details for the applicant, such as her place of former employment and details about her uncle and daughter. This indicated to the Tribunal that they had been prepared on the basis of information and instructions from the applicant, and the Tribunal is not satisfied that this can explain the inconsistency. The Tribunal also considers that the applicant had provided a declaration to the Department with her application that she had read and understood the information that she had provided and it was complete and correct. The Tribunal considers that the applicant is responsible for the information that she had provided in support of her visa application.
Although the applicant initially claimed at the hearing that she was not working in Australia. Following submissions from her agent, the applicant conceded that she was working casually as a tour guide in Sydney, for friends and acquaintances of her uncle for which she received payment. Occasionally she was also obtaining work as a tour guide with a tourism company in Australia, approximately 1 - 2 days each month. This raised concerns for the Tribunal that the applicant was seeking to undertake her proposed studies for the purposes of assisting her employment in Australia. Additionally, in Australia the applicant has family and acquaintances. Her cousin, who she claims to visit monthly, is an Australian permanent resident and lives in South Australia. Following questioned from the Tribunal she advised that she also had cousins from Hong Kong in Australia, and many close friends of her family and uncle. One close family friend she also referred to as Uncle, and he had been asked by her family to look after her while in Australia. The evidence was that the applicant was well supported by her family and extended family while she was in Australia. The Tribunal considered overall that the applicant’s circumstance in Australia may provide an incentive for her to remain other than for the purposes of study.
The length of time that the applicant is intending to stay in Australia is also of concern for the Tribunal. Initially she had only proposed to undertake a course for ten months, and had provided a submission to the Department that at the end of her initial course she would return home. Yet, once this course completed she went on to enroll in further courses and is now proposing an additional course with six months study in English and a further course of study in Tourism. When the Tribunal asked the applicant when she intended to return to her home country her responses were considered to be persistently evasive. At first she claimed that she would return after she had completed her studies in Tourism. When the Tribunal questioned again regarding the length of the course, the applicant advised approximately 2 years. The Tribunal then asked the applicant again whether she was intending on this timeframe to return in 2020 or 2021. The applicant then gave evidence that she would like to complete and obtain at least a band 5 in IELTS testing and would do further study for this. The applicant was unable to give the Tribunal a date when she intended to return home. She has changed her intentions regarding her period of study in Australia without any evidence of future career or employment opportunities, she has not honoured her initial submission to the Department that she would return to China at the end of her first course, and these issues indicated that the applicant may not genuinely intend to return to her home country in the future.
The Tribunal has considered the applicant’s circumstances in her home country and it is accepted that she has immediate family in the form of her daughter, parents and uncle. The applicant claimed that as a single parent she could not leave her daughter for long. Yet, on the evidence it transpired that her daughter is now in the care of her former husband, the applicant has not returned to her home country since the visa application and now she is intending, if granted the visa, to study for several more years in Australia. The Tribunal is therefore not satisfied that her carer responsibilities for her daughter act as a significant incentive for her to return to her home country. The applicant also claimed to have an apartment in Fujian, this was currently occupied by tenants and her parent’s manage the property for her. It does not appear from this evidence that the applicant actively manages this asset. The Tribunal must balance this evidence with the other circumstances of the applicant, and is not satisfied that her family and economic ties act as a significant incentive for her to return to her home country.
Overall, the concerns raised above lead the Tribunal to not be satisfied that she is genuine in her reasons for studying in Australia and why she wishes to undertake her proposed courses. Rather it is of the view she is using the student visa program to maintain residence in Australia. In making this decision the Tribunal has had regard to the fact that the applicant has continued to study and regularly attend her courses while awaiting review, her ties to her home country in the form of her family and property. However these considerations do not outweigh on balance the Tribunal’s concerns.
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).
It follows that 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.
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. Therefore, the decision under review must be affirmed.
DECISION

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

Attachment – IMMI 17/012 – Financial capacity instrument (extract)
2.SPECIFY under subclause 500.214(4) of Schedule 2 to the Regulations and for the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, that the applicant seeking to satisfy the primary criteria of a Subclass 500 (Student) visa (Primary Applicant) must give to the Minister evidence of financial capacity of the following requirements:
a)sufficient funds to meet the following costs or expenses of the Primary Applicant, as specified in item 6 of this Instrument:
i.travel expenses; and
ii.living costs and expenses as specified in item 5 of this Instrument; and
iii.course fees covering:
A.if the duration of the Primary Applicant’s stay in Australia is less than 12 months—the total course fee; or
B.if the duration of the Primary Applicant’s stay in Australia is longer than 12 months—the first annual course fee; and
b)sufficient funds to meet the following costs or expenses of each applicant seeking to satisfy the secondary criteria of a Subclass 500 (Student) visa (Secondary Applicant) making a combined application with the Primary Applicant, as specified in item 6 0of this Instrument:
i.travel expenses; and
ii.living costs and expenses as specified in item 5 of this Instrument; and
iii.all school fees for each school aged dependant as specified in item 7 of this Instrument; or
c)the Primary Applicant’s parents, spouse or de facto partner have personal annual income that is above an amount specified in item 8, and evidenced as specified in item 9 of this Instrument; or
d)the Primary Applicant’s completed AASES form, as defined in regulation 1.03 of the Regulations; or
e)for a Primary Applicant sponsored by the Department of Foreign Affairs and Trade—a letter of support from the Department of Foreign Affairs and Trade; or
f)for a Primary Applicant sponsored by the Department of Defence—a letter of support from the Department of Defence.
3.SPECIFY under subclause 500.313(4) of Schedule 2 to the Regulations and for the purposes of subclause 500.313(3) of Schedule 2 to the Regulations, that a Secondary Applicant must give to the Minister the evidence of financial capacity that corresponds with the circumstances applicable to the Secondary Applicant in the Schedule to this Instrument.
4.SPECIFY under subclause 590.216(4) of Schedule 2 to the Regulations and for the purposes of subclause 590.216(3) of Schedule 2 to the Regulations, that the applicant seeking to satisfy the primary criteria of a Subclass 590 (Primary Student Guardian Applicant) visa must give the Minister evidence of financial capacity of the following requirements:
a)sufficient funds to meet the following costs or expenses of the applicant, as specified in item 0 of this Instrument:
i.travel expenses; and
ii.living costs and expenses as specified in item 5 of this Instrument; and
b)sufficient funds to meet the following costs or expenses of the Primary Student Guardian Applicant as specified in item 6 of this Instrument:
i.travel expenses; and
ii.living costs and expenses in item 5 of this Instrument; and
iii.course fees covering:
A.if the duration of the Primary Student Guardian Applicant’s stay in Australia is less than 12 months—the total course fee; or
B.if the duration of the Primary Student Guardian Applicant’s stay in Australia is longer than 12 months—the first annual course fee; and
c)sufficient funds to meet the following costs or expenses of each member of the family unit applicant making a combined application with the Primary Student Guardian Applicant, as specified in item 6 of this Instrument:
i.travel expenses; and
ii.living costs and expenses in item 5 of this Instrument; and
iii.all school fees for each school aged dependant as specified in item 7 of this Instrument; or
d)the Primary Student Guardian Applicant’s spouse’s or de facto partner’s annual income that is above an amount specified in item 8, and evidenced as specified in item 9 of this Instrument.
5.SPECIFY for each applicant that satisfies the minimum requirements specified in item 2, item 3 and item 4 of this Instrument:
a)if the applicant’s intended stay in Australia is for a period of 12 months or longer, the annual living costs and expenses amounts for the first 12 month period is:
i.for a student—$19,830 AUD;
ii.for a student guardian—$19,830 AUD;
iii.for a spouse or de facto partner—$6,940 AUD;
iv.for a dependent child—$2,970 AUD; or
b)if the applicant’s intended stay in Australia is for a period that is less than 12 months, the living costs and expenses amount is the pro rata equivalent of the annual amounts specified in paragraph a) of this item.
6.SPECIFY the following evidence of financial capacity that satisfies the requirements specified in item 2, item 3 and item 4 of this Instrument:
a)money deposit with a financial institution;
b)loan with a financial institution;
c)government loans;
d)scholarship or financial support.
7.SPECIFY for the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, for each Secondary Applicant who is a child of school-age, the evidence to be provided by the applicant of either:
a)the annual minimum amount for schooling of $8000 per annum; or
b)if the applicant’s intended stay in Australia is for a period that is less than 12 months, the amount specified for schooling is the pro rata equivalent of the annual amount specified in paragraph a) of this item; or
c)enrolment in a course at a State or Territory government school where the fees have been waived and the applicant meeting the primary criteria is enrolled in a course as a:
i.doctoral degree student; or
ii.Foreign Affairs student; or
iii.Defence student; or
iv.Commonwealth sponsored student.
8.SPECIFY the following annual income amounts that satisfies the minimum requirements specified in item 2, item 3 and item 4 of this Instrument:
a)$60,000 AUD for an individual Primary Applicant for a Subclass 500 (Student) visa; or
b)$70,000 AUD if:
i.one or more Secondary Applicant is seeking to satisfy the secondary criteria for a Subclass 500 (Student) visa; or
ii.for Subclass 590 (Student Guardian) visa applicants.
9.SPECIFY as evidence of annual income amount that satisfies the requirements specified in item 2, item 3 and item 4 of this Instrument, official Government documentation of personal income that has been issued in the 12 months immediately before the application is made.
10.In this Instrument, the pro rata equivalent of an annual amount is calculated by:
a)dividing the annual amount by 365; and
b)multiplying the resulting number by the number of days the applicant is intending to stay in Australia.
…
Schedule

Item	Circumstances applicable to the Secondary Applicant	Evidence and requirements of financial capacity
1	i. the Secondary Applicant’s application is combined with a Primary Applicant’s application; and ii. the Primary Applicant does not provide a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument.	Evidence specified in item 6 of this Instrument, to meet the costs and expenses of the Primary Applicant as specified in item 2 of this Instrument.
2	i. the Secondary Applicant’s application is combined with a Primary Applicant’s application; and ii. the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and iii. the letter of support indicates that the relevant department will meet the living expenses of each Secondary Applicant.	The letter of support.
3	i. the Secondary Applicant’s application is combined with a Primary Applicant’s application; and ii. the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and iii. the letter of support indicates that the relevant department will not meet the living expenses of each Secondary Applicant.	Evidence specified in item 6 of this Instrument, to meet the costs and expenses of the Secondary Applicant as specified in item 2 of this Instrument.
4	i. the Secondary Applicant’s application is not combined with a Primary Applicant’s application; and ii. the Primary Applicant does not provide a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument.	Sufficient funds to meet the following costs or expenses, as specified in item 6 of this Instrument: i. travel expenses; and ii. living costs for each applicant and the Student visa holder, as specified in item 5 of this Instrument; and iii. course fees for the Student visa holder covering: A. if the duration of the stay in Australia is less than 12 months—the total course fee; or B. if the duration of the stay in Australia is more than 12 months—the first annual course fee; and iv. all school fees for each school aged dependant of the Student visa holder, as specified in item 7 of this Instrument.
5	i. the Secondary Applicant’s application is not combined with a Primary Applicant’s application; and ii. the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and iii. the the letter of support indicates that the relevant department will meet the living expenses of each Secondary Applicant.	The letter of support.
6	i. the Secondary Applicant’s application is not combined with a Primary Applicant’s application; and ii. the Primary Applicant provides a letter of support mentioned in paragraph e) or f) of item 2 of this Instrument; and iii. the letter the letter of support indicates that the relevant department will not meet the living expenses of each Secondary Applicant.	Sufficient funds to meet the following costs or expenses, as specified in item 6 of this Instrument: i. travel expenses: and ii. living costs for each applicant, as specified in item 5 of this Instrument; and iii. all school fees for each school aged dependant of the Student visa holder, as specified in item 7 of this Instrument.
7	i. the Primary Applicant’s parents, spouse or de facto partner have personal income that is above an amount specified in item 8 of this Instrument.	The evidence specified in item 9 of this Instrument.

[2018] AATA 802

21 March 2018

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