He (Migration)

[2019] AATA 6369

He (Migration) [2019] AATA 6369 (15 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chaoyang He

CASE NUMBER:  1731735

DIBP REFERENCE(S):  BCC2017/3759357

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:          15 November 2019 at 1:12 pm (NSW time)

DATE OF WRITTEN RECORD:                5 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets

·the criteria in clause 500.212(a) of Schedule 2 to the Regulations

Statement made on 05 February 2020 at 12:46pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine intention to stay temporarily – previous study and working visas – applied for student visa shortly before working visa expired – enrolment in short, lower-level courses in different subjects – value of studies to future career – advised to study by employer – close to completing studies – work opportunities and family ties in home country – generic career plan – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2)

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

APPLICATION FOR REVIEW

Background, procedural aspects and the Tribunal’s approach to the evidence

1. This is an application for review of a decision made by a Delegate of the Minister for Immigration on 28 November 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 15 November 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. What follows is the written record of those reasons.

3. The applicant had applied for the visa on 13 October 2017.  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 of Schedule 2 for the Regulations on the ground that he was not a genuine temporary student in Australia.  Having been duly notified of that decision, the applicant lodged his review application on 15 December 2017, together with a letter in support of his application, those documents being filed within the prescribed 21 day period. 

4. In due course, the Tribunal sent to the applicant a section 359(2) letter which he duly responded to by lodging his online response form together with a number of documents referred to in that form. 

5. Subsequently, the Tribunal invited him to appear at the hearing today and he responded to that invitation by accepting it and returning to the Tribunal a completed hearing response form. 

6. The applicant has appeared today at the hearing and has given some oral evidence through a Mandarin Interpreter.  The applicant’s agent, Hong Fang, has also appeared today to assist the applicant.  As it happened, the applicant did not need assistance from his agent at all during the hearing, although Ms Fang did make some submissions on one or two occasions by way of assisting the Tribunal in certain aspects of the applicant’s oral evidence. 

7. The Tribunal is satisfied that the applicant has done his best to give to the Tribunal some reliable information.  On the whole, the Tribunal accepts his oral evidence, the detail of which I will come to in a moment. 

8. For the reasons which follow, the Tribunal has concluded, although not without some hesitation, that the matter should be remitted to the Delegate for reconsideration. 

   The nature of the issue

9. The criteria for a Subclass 500 student visa are of course set out in Part 500 of Schedule 2 for the Regulations. The primary criteria in clauses 500.211 to 500.218 must be satisfied by the applicant. On the basis of the documentary evidence, the Tribunal is satisfied that the applicant is currently enrolled in a Graduate Diploma of Management at the Australian School of Commerce, Hobart Campus.  That course commenced in April 2019 and is due to be completed in April of this year, that is to say in about 3 months’ time.

10. The issue in this review application is therefore the same issue which the Delegate determined, namely whether the applicant meets the requirements of clause 500.212 at the time of this decision; in other words, whether he genuinely intends to stay in Australia temporarily for study purposes. 

11. In considering that issue, of course the Tribunal must have regard to the factors mentioned in Ministerial Direction 69.  As is well known, those factors are not to be used as a checklist but are rather intended only to guide the Tribunal in reaching a decision on whether the applicant satisfies the GTE criteria having regard to the applicant’s circumstances as a whole. 

12. Consideration of whether an applicant satisfies the GTE criteria of course involves a balancing exercise in which weight is to be given to the various relevant MD 69 factors so as to ensure that the Tribunal reaches an outcome which is mandated by the legislation and is within the confines of a sound discretionary decision in the overall circumstances of the case.  It is important to recognise in this case, as indeed it is in all cases of this kind, that the task of the Tribunal is to weigh the various factors, not in a compartmentalised fashion, but in a way which reflects the general merits of the case. 

13. Not only must the applicant’s circumstances be considered as a whole but the weight to be accorded to the various MD69 factors is a task which must be approached with those circumstances in mind.

14. The Tribunal must also re-determine the GTE issue afresh having regard to the evidence before it, whether or not that evidence was before the Delegate, and it must re-determine the issue at the present time, that is to say at the time of this decision.

    The Department’s decision and the eventual approach which the Tribunal has taken on the review application

15. The Department had various concerns with the visa application. These are referred to in the Decision record, a copy of which was provided to the Tribunal by the applicant. The Delegate referred to some background relating to the entry of the applicant into Australia, noting that he had held either a student visa or an associated bridging visa as from his entry into Australia on 29 February 2012. 

16. The Delegate noted that, during the period from 19 April 2016 to 19 October 2017 the applicant held a graduate work (Class VC) (subclass 485) visa. The Delegate then referred to the fact that the applicant was at that time, that is to say at the time of the Delegate’s decision, enrolled in a Certificate IV in Marketing and a Diploma of Business.  He went on to note that the applicant had previously been enrolled in various courses, the nature of which I will address later in these reasons. 

17. The Delegate expressed concern about the fact that the applicant had never departed Australia since he arrived here and he inferred from that fact that the applicant had not demonstrated ties to his home country, China, which could be regarded as providing a strong incentive for him to return there on the completion of his studies. Whilst the Delegate acknowledged that the applicant had some personal ties to China the Delegate found that, bearing in mind his travel history, they were not strong enough to justify a finding that the applicant would return to that country at the end of his study program in Australia. 

18. In particular, the Delegate went on to note that the applicant had, after obtaining his Master of Professional Accounting, enrolled in courses which were completely unrelated to the Master’s course.  Accordingly, the Delegate was not satisfied as to the value of the proposed courses of study to the applicant’s future. Weight was apparently given to this factor leading to an inference that the applicant did not genuinely intend to stay in Australia temporarily and that he was using the visa program as a means of maintaining residence here. 

19. The Delegate also went on to note that the applicant was proposing to undertake a program here which would require him to remain onshore until at least March 2020 and extend his stay here to more than eight years.  The Delegate found it difficult to reconcile the extensive stay onshore with his claim that he was a genuine temporary student.

20. The Delegate observed that for a period of 18 months immediately prior to his decision, the applicant had been holding a graduate (485) visa, which did not have any study restrictions.  Concerns were expressed about the fact that the applicant had not undertaken any studies during that time and that shortly before the visa was due to expire he enrolled in these courses and applied for the visa on 13 October 2017. 

21. The Delegate therefore inferred that the applicant had recommenced studies for the purpose of the visa application only in order to secure the visa rather than for the purpose of furthering a genuine interest in this area of study and overall academic progress. Moreover, so far as the value of these courses to the applicant’s future was concerned, the Delegate said that he had no substantive information regarding what his actual career goals were. 

22. The applicant, according to the Delegate, had not provided any information as to how the proposed courses were related to his career goals and had not provided any evidence that completing them would actually enhance his career prospects.  That then brought into question, according to the Delegate, the value of these courses and his intentions over the next two years. 

23. The Delegate went on to observe that the applicant had been here for more than 5.5 years and that he now wished to undertake further studies and extend his stay for a further 2.5 years.

24. Towards the end of the Delegate’s reasons, he noted that the applicant had completed a Master of Professional Accounting in October 2014 but had not since progressed in his studies. In fact, he found that the applicant had regressed by proposing to study a Certificate IV in diploma-level courses. 

25. Weight was also given to the fact that the applicant had sought to undertake short and inexpensive courses which had unfavourable indicators as far as the Delegate was concerned.

26. Ultimately, the Delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student, or that he intended to remain in Australia temporarily.  Accordingly, clause 500.212 was not met and the application was refused. 

27. Although the Tribunal can certainly understand at least some of those concerns the situation now is somewhat different. The issue is the same but its complexion has changed because, in the two years which have elapsed since the Delegate made his decision the applicant has completed the Certificate IV in Marketing, did not complete the Diploma of Business, but has instead enrolled in the Graduate Diploma of Management, referred to earlier.  This, it seems to the Tribunal, does put a different complexion on his circumstances.  And although some of the concerns which the Delegate expressed still have an enduring quality about them, the Tribunal has ultimately decided that, although this is a borderline case, the applicant does fall on the right side of the line in relation to the issue of whether the GTE criterion has been met.

28. Although the Tribunal has concerns about the somewhat diverse nature of the applicant’s study program, and that some of these courses might be seen to be of limited utility to a person who wants to work as an accountant, ultimately these matters are not at this stage of any great weight in the overall circumstances of this case.  There are more weighty considerations here in the Tribunal’s view; one of which is the fact that he is only 3 months away from completing the Graduate Diploma. This circumstance is, in the Tribunal’s view, a very weighty consideration indeed given the applicant’s evidence, which the Tribunal accepts, that he has already invested a good deal of time and money in pursuing his studies in this course. 

29. The applicant has indicated in his oral evidence that he, or those supporting him, have spent something in the order of $7000 to$9000 already on the Graduate Diploma.  These monies would be wasted if he is unable to complete that course.  The Tribunal is of the view that, in this case, there are fairly strong expectation interests which, together with other factors, get the applicant across the line.

30. Ultimately, the Tribunal is, for reasons to be developed shortly, of the view that the applicant does presently meet the GTE criterion in the overall circumstances of this case.

    Evidence and findings

31. By way of background, the applicant was born in China in 1986. He is now 33 years of age.  He completed a course in Tourism Management in China before he came out to Australia. He did that over a period of some 4 years, between 2006 and 2010. He arrived here on a (TU) (573) visa in February 2012 and then enrolled in an English course commencing studies in March 2012. He completed the English course in May 2012 and went straight into a Master of Professional Accounting at the Central Queensland University, Sydney Campus.  That was a two-year course, but he did not complete it until October 2014 because he had some issues with one of the courses, namely Corporate Accounting. He failed that course twice but preserved and ultimately passed it and fulfilled the requirements for the Degree in October 2014.  He then enrolled in an Advanced Diploma of Translating, which he started in December 2014 and finished in November 2015, a period of about 11 months.  Having completed that course, he then enrolled in a Certificate IV in Marketing, which commenced in November 2017. 

32. Pausing here, there is of course a significant gap in study of about 2 years which the Delegate understandably expressed concerns about. The evidence in this case reveals however that the applicant obtained a temporary graduate work (485) visa in April 2016 which had a cease date of 19 October 2017 and that he did, in fact, find work as an accountant with Austar from May 2016 to July 2017, a period of about 14 months. 

33. In his oral evidence today, and also in his documentary case, the applicant has indicated that that experience was of some benefit to him and that, during the course of his work there, his employer told him, apparently more than once, that any prospective employer would consider that vocational studies would be worthwhile because he would gain a greater practical insight to how businesses operated. The applicant says that he acted on that advice and enrolled in the Certificate IV in Marketing and the Diploma of Business courses.  Although the Tribunal will come back to this evidence shortly, it does accept the applicant’s evidence that he was encouraged by his employer at Austar to undertake a vocational program. This, in the Tribunal’s view, is an important consideration as it not only explains why the applicant enrolled in these courses, it tends also to establish that he did so for acceptable and legitimate study reasons.

34. The Tribunal accepts that he did most probably did get advice to that effect and one can readily understand why an employer might actively encourage an employee, such as this applicant, to go down that path. It is one thing to obtain a Master’s degree in accounting but it is, in the Tribunal’s view, quite another to understand how businesses actually operate in the real world. For an accountant who wants to find work in a business of some sort, it might reasonably be expected that he or she would eventually operate at the managerial level and a vocational course which focuses on management techniques might reasonably be expected to be of some value. 

35. The applicant did not finish the Diploma of Business and he has given evidence to the effect that that he withdrew from that course. The Tribunal notes that it was ultimately cancelled for non-payment of fees but accepts that he in fact ceased to study because he felt that the course was not of great benefit to him. His evidence is that it was too elementary for him. Making due allowances for the fact that he did have some difficulty with one of the units in the Professional Accounting course, the Tribunal accepts this explanation given his previous level of education.

36. No adverse inferences can or should be drawn by the Tribunal in this case arising from that decision. In fact, if anything, the Tribunal views the applicant’s decision to change direction at that stage of his study program as indicating a genuine desire on his part to progress academically. If a course is begun but ultimately seen by an experienced student such as this one to be of little utility or benefit, a decision has to be made as to whether it is worthwhile and the sooner it is made the better. That is what the applicant did in this case. He withdrew from the course within two or three months of having started it and the Tribunal accepts that he did so for legitimate reasons. The Tribunal notes that, having done that, he went straight into the Graduate Diploma course which, as I said, commenced in April 2019.

37. The applicant has given evidence today that he is on track to complete this course on time.  He has acknowledged that he has had some issues with his assignment but he is now waiting for his results in three of the units in that course and he expects to be able to finish the course in a timely fashion. Although there might be some residual doubt about that, the Tribunal is prepared to accept that he is taking his studies in that course seriously and that the probabilities are that he will indeed finish the course, perhaps on time. Once he completes the current assignment, he will have completed four units and will then be about halfway through the course so he will most probably complete it on time.

38. As to the applicant’s enrolment in the translating course, although the Tribunal is having great difficulty in understanding how that course could really be of any benefit to him it is of no great weight in the overall circumstances of this case. 

39. The Tribunal does accept his explanation that he felt he wanted to improve his English and that the translating course has done that. It was a 12 month course but the fact is that the applicant has finished it and moved on.  The Certificate IV in Marketing was pursued on the  advice of an employer and, again, he completed that course. The business course can be seen to have been a mistake but allowances can be made and I think should be made in this case given that he made that call in the early stages and has moved into and is completing the Graduate Diploma of Management.

40. So far as the value of that course has to his ultimate career, the applicant has confirmed today what he said in his documentary case, namely that he intends to go back to China when he completes the course to find work as an accountant, but leaving open the possibility that he may eventually want to start his own tourism business. He does have a work history in the tourist industry. 

41. The Tribunal accepts his evidence in that regard. The probabilities in this case are that he will find work as an accountant when he goes back to China, probably for the reasons he has given, that is to say he will be more competitive in China than he would be in Australia because here he would be competing against graduates who have completed as rigorous, if not more rigorous, accounting courses and met other professional requirements which confront accountants here. In China, he is likely to be competitive with Australian qualifications, including the Graduate Diploma of Management, which the Tribunal can see to be of some utility. The fact is that many accountants operate at the managerial level.  If he finds work in a business of some sort, one would think that, other things being equal, a Graduate Diploma course in Management would be of some utility, at least in the long-term. 

42. His former employer at Austar certainly thought a Certificate IV in Marketing would and, if that is the case, there is no reason to think that a Graduate Diploma in Management would not be of some utility. The Tribunal accepts his evidence that he is enrolled in this course largely because of the advice he got from his former employer. The Tribunal, as I have said, is prepared to accept this evidence. Evidence from the employer to this effect would have obviously been preferable in the circumstances of this case, it being finely balanced, but the Tribunal is prepared to accept what the applicant has said about this; that he did in fact get advice to that effect, that he has in fact acted on it and that it has not been unreasonable for him to have done so.

1. The Tribunal is of the view that he is likely to find work as an employed accountant in a business of some kind, but not necessarily in a professional accounting practice, and that he has reasonable prospects of doing so in China on his return. Finding work in a professional accounting practice cannot be completely discounted but the Tribunal simply does not know whether he will have fulfilled all of the requirements for that.  But working as an accountant in a business of some sort in China is a distinct possibility for this applicant.  As I have said, the Tribunal takes notice of the fact that accountants often operate at a managerial level and the Graduate Diploma in Management can be seen to have some potential utility for him for that reason. 

2. Ultimately, this is a case in which the applicant has a generic career plan but not all students can be criticised for that. Indeed, many students, international or otherwise, do not have a specific career path or plan in mind. This applicant satisfies the Tribunal that he does have a plan to go back and find work in some business in China as an accountant and that he is likely to do that.

3. The other important, and I think very weighty, consideration for this applicant is that the course will be completed in about 3 months’ time.  He has invested resources into this course.  He is, I think, a serious student who genuinely wants to finish the course and return to China. Given the stage which he has reached in the course and the likely completion date, this is a very weighty consideration in the overall circumstances of this case. 

4. The Tribunal takes into account the applicant’s prior level of education but is not prepared to conclude that the Graduate Diploma is in any way a regressive step. Indeed, for this applicant, the position is quite to the contrary.

5. In many of these cases, the future value of a course or courses is a very important consideration. This case is no different.  As I say, I think the course in which he is currently enrolled and studying will be of some benefit to him further down the track in his home country.

6. This being so, there is a demonstrable potential economic tie to his home country which I think is significant and which does provide a strong incentive for him to return to China on completion of this course. He has assured the Tribunal that he will do that and the Tribunal accepts that he will. He has good reasons to do so. The fact that he will be more competitive in China gives him a strong potential economic tie there and suggests to the Tribunal that what he says will happen will, in fact, happen. He also has family there. As the Delegate pointed out, there are concerns arising because he has not been back to China since he arrived here. But these days there are so many ways to communicate from a distance and not all applicants want to incur the expense of travel to see their family. This applicant says that he is in regular touch with his parents and the Tribunal accepts that he most probably is. It appears that he probably does have a close relationship with them, and with his brother. He has not seen them for almost eight years, it is a long time, but the Tribunal has no reason to think that he does not contact them and notes that his parents are meeting his tuition fees in Australia. The Tribunal also accepts the applicant’s evidence in this regard. The applicant has been working, apparently, but has given evidence that he does not earn enough to pay his tuition fees and the Tribunal accepts this to be the position. He said that he earns some pocket money, but that is about the extent of it. He is still working at the bakery in Hobart, has been only recently employed there, but he has told the Tribunal that he earns enough to make ends meet. He does not appear to have any real economic or other incentive to remain here.

7. In the result, the Tribunal is satisfied that there are indicators in this case that the applicant does have a significant incentive to return to China on completion of the graduate diploma and that he will do so. 

8. Turning to his immigration history, there is nothing of any great concern, as far as I can see.  He has been here a long time, 8 years in fact. For any international student on a sub-class 500 visa, that is a long time and the longer the time, other things being equal, the more difficult it becomes for the Tribunal to reach a view that an applicant is here temporarily for genuine study reasons. But, in the scheme of things, one has to look at what a student has done whilst here. In the time that he has been here, this applicant has been academically productive, albeit his program has been rather diverse. There have been mistakes; some of these vocational courses can be seen to be not of any great utility to someone in his position, the connection in some of these courses has been somewhat tenuous, but, as I say, much of that is now historical and not of any great weight in these circumstances. The Tribunal is not prepared to find that he has been doing anything other than what a genuine student might be expected to do, which is to engage in a continuous study program. 

9. The utility of the applicant’s study program is, in some respects, questionable but overall the Tribunal finds he is a genuine student who has engaged in a program which cannot fairly be described as regressive. Indeed, a Graduate Diploma of Management can be regarded as a progressive course for him to undertake at this stage, bearing in mind that he has been here for a long time.

10. There is nothing in his immigration history of any great concern to the Tribunal. There is no suggestion that he has been in breach of his work restrictions and there are no other immigration concerns expressed by the Delegate.

11. The applicant has no concerns about military service, and there is nothing in his potential circumstances in Australia of any great concern given the fact that he has only a short of time remaining here.

12. There are no other factors of any great significance or weight in this case about which evidence has been given. Overall, this is a case which largely comes down to the fact that he has only a few months left in a course which he is likely to finish on time, more or less, and which will be of some utility to him on his return to China where he is likely to be competitive in the local job market.

13. His personal ties and potential economic ties to his home country reinforce the conclusion that he will shortly return to that country.

14. Overall, the Tribunal is of the view that the applicant is a genuine temporary student in Australia who should be given the opportunity to finish the Graduate Diploma in which he is currently enrolled.

    Conclusion on the GTE issue

15. Having regard to the applicant’s relevant circumstances, and giving due weight to them, the Tribunal finds that he does genuinely intend to stay in Australia temporarily, as is required by clause 500.212(a) of the Regulations, and it concludes that he does thus meet the GTE criterion. 

16. Given those findings and that conclusion, the appropriate course is to remit the application for reconsideration in light of the usual direction

    DECISION

17. The Tribunal remits the application for the student temporary (class TU) visa for reconsideration by the Minister with the direction that the applicant meets the criteria in clause 500.212(a) of Schedule 2 to the Regulations.

    Michael Bradford
    Member