HONG (Migration)

[2017] AATA 512

HONG (Migration) [2017] AATA 512 (30 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yixuan HONG

CASE NUMBER:  1605933

DIBP REFERENCE(S):  BCC2016/180899

MEMBER:Penelope Hunter

DATE:30 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Vocational Education and Training Sector visa:

·cl.573.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 30 March 2017 at 11:09am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – cl 572.223(1) – Relevance of course to academic or employment background – Incentive to return to China – Completion of 5 courses – Excellent progress in degree course – Family business employment prospects

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulation 1994, Schedule 1, Schedule 2 cl 573.223(1)(a)

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 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 to the Department of Immigration for the visa on 13 January 2016. In his application the applicant set out that he proposed to study a Certificate IV in Automotive Mechanical Diagnosis with course dates from 1 February 2016 to 23 June 2016.

3. The delegate decided to refuse to grant the visa on 7 April 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

4. In support of his application for the visa the applicant submitted to the Department the following documents;

   i.Evidence of health insurance.

   ii.Financial documents including bank statement and income statements for parents.

   iii.IES Academic results.

   iv.QIBT Academic results and degree in.

   v.TAFE Certificate III.

   vi.Statement.

5. In his statement and submissions to the Department, the applicant set out the following relevant information;

   i.The applicant dreamed of achieving a foreign university degree. He studied in IES (UQ Foundation) for six months after his arrival in Australia on 13 February 2011 but did not meet the minimum GPA requirement in the first semester and he was advised by his teachers to transfer to another institution which had lower requirements than the University of Queensland. He decided to transfer to Griffith University and the best way to enter was to complete a diploma at QIBT. He started study at QIBT on 24 October 2011.

   ii.Before starting in October 2011 he completed a 5 week English course as part of QIBT. By the end of 2013 he had completed a Diploma and Associate Degree in Business. However due to his poor academic skills and his poor English skills he was not admitted into the Bachelor degree.

   iii.His study gap between October 2013 and February 2014 arose due to the programing between QIBT and Griffith University. He spent several weeks in negotiation unsuccessfully with Griffith University as he attempted to get into the Bachelor degree. His release letter was not issued from Griffith University just before Christmas 2013. As he was not able to continue with Griffith University he had to wait until February for intake in TAFE.

   iv.His parents encouraged him to study something he was interested in to build up his skills. The applicant at TAFE and he decided to study automotive mechanical technology. He wished to complete the higher level Certificate IV to gain more knowledge and have more experience for his future.

   v.His aim is to complete a Bachelor degree, he has put a lot of effort in to trying to satisfy the requirements of the university and please his parents. He is waiting for a response from Griffith University and hopes in the near future to obtain admission.

6. The delegate decided to refuse the grant of the visa on 7 April 2016. This was because the delegate found that the applicant did not satisfy the requirements of cl.572. 223 of Schedule 2 to the Regulations because he was not satisfied that the applicant was a genuine applicant for entry and stay as a student. In summary, the delegate set out the following issues of concern in his decision;

   i.While the applicant stated that his studies in Australia may benefit his future career prospects, he had provided only general reasons and no evidence of specific business opportunities or job offers on his return. He also had not explained the relevance of his course to his academic or employment background. The delegate was not satisfied his study plan would assist him to obtain employment or improve his prospects in the future.

   ii.The applicant had not provided a convincing reason for studying in Australia given the significant financial costs, time and travel.

   iii.Given the disparity in the economic circumstance between Australia and China the delegate was not satisfied that the applicant had significant incentive to return.

   iv.With respect to the applicant’s migration history it was noted that since 2011 he had been onshore for 1698 days and out of Australia for 97 days.

   v.There was concern with respect to the lack of continuity in his fields of study, which was considered suggestive that his substantial objective was to maintain residence in Australia.

7. With his application for review to the Tribunal, received on 27 April 2016, the applicant provided a copy of the decision of the delegate.

8. On 17 March 2017, the Tribunal received further submissions from the agent for the applicant and supporting documents. In summary the submissions set out a chronology of the applicant’s studies and the following;

   i.Due to his personal circumstances the applicant has had to amend his plan for the future from time to time. His purpose in studying in Australia was to get a university degree. From his arrival he has attempted 7 courses. He has successfully completed 5. (Copies of relevant CoE’s, results and qualifications were attached)

   ii.He initially enrolled at the University of Queensland commencing with a foundation course IES. He could not manage the foundation course and it was suggested that he amend his study plan. The applicant undertook a package of a Diploma of Hotel Management and an Associate Degree in Commerce and Business, then a Bachelor of Hotel Management at Griffith University.

   iii.He did not obtain the requisite entry requirement to Griffith University, as the release letter was issued before Christmas he could not enrol with another provider until February 2014.

   vi.In consultation with his parents he decided to undertake a TAFE course to enhance his level of study. He applied for a 572 visa which was granted.

   vii.After the applicant completed the Automotive Mechanical Technology Certificate III TAFE suggested he continue to the Certificate IV. The applicant planned to obtain a position to study the Bachelor of Business at Kaplan Business School after completion of his Certificate IV.

   viii.The applicant had never worked prior to arriving in Australia. As he had never worked it was inappropriate for the delegate to assess the relevance of his current study to his past employment. The applicant intends to assist his parents in the family business after he completes his study. His parents engage in a trading business. It is believed that he can assist the business with his international vision and with some experience in the family business he may have a high chance of obtaining work with an international company based in China.

   ix.The Certificate IV in Automotive Technology was a continuation of his existing course at the Certificate III level. Department policy allows an applicant to change their educational pathway from time to time, with only two significantly different fields. It was submitted that the delegate had prematurely reached a conclusion that the applicant’s past study lack continuity.

   x.The applicant has successfully completed 2 semesters of the Bachelor of Business at Kaplan College (COE and results submitted). This, together with his satisfactory attendance, suggests that the applicant is a genuine student (evidence attached). The course is scheduled to finish on 21 October 2017. He has now completed over half of his Bachelor Degree with good results.

9. The applicant appeared before the Tribunal on 29 March 2017 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 represented in relation to the review by his registered migration agent.

10. At the hearing the Tribunal raised with the applicant a number of concerns as to whether he is a genuine temporary entrant. It raised with him his length of time in Australia which appeared to show stronger ties to Australia than China, that he had enrolled in a range of courses and the value of his current studies to his future.

11. The applicant submitted that he had come to Australia with the intention of undertaking a Bachelor Degree. It was what his family expected and it was essential to his family’s honour. He had attempted it by several paths, was now enrolled in the course and his academic results so far showed that he was making excellent progress.

12. The applicant discussed with the Tribunal his future plans and his opportunity with his family business. He gave evidence that his parents operate a wholesale business selling domestic goods to retails stores and employ approximately 30 staff. The applicant discussed with the Tribunal his family ties and claimed it was his intention to return to China once he had completed his degree at the end of the year.

13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is now Subclass 573 as the applicant has now gone on to enrol again in a Bachelor degree.

15. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that 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)     …

16. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

17. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

18. On the material before it the Tribunal finds that the applicant satisfies the genuine temporary entrant criteria. In making this decision the Tribunal has considered the issues of concern. Particularly, that the applicant’s migration history, his length of time in Australia and the continuity of his studies.

19. Although the applicant did not continue his initial enrolment at the high education sector level, he has explained to the satisfaction of the Tribunal his difficulty initially with study at that level. This is borne out in his initial academic results. The Tribunal accepts that he had difficulty studying at this level and that he took advice from his university and then attempted to undertake study at the Diploma level as a pathway to a Bachelor degree. The Tribunal accepts that he is committed to studying a Bachelor degree in Australia. The applicant discussed with the Tribunal how all his relatives, neighbours and friends were aware he had come to Australia to obtain an degree and that he considered it essential to satisfy his family expectations and for his future career.

20. The Tribunal accepts that a Bachelor of Business will be assistance in his proposed employment in his parents’ business. The applicant has provided specific evidence of  the value of the course to his future employment and Tribunal further finds that the reasons as to why he wishes to study the course he has enrolled in Australia are true. The Tribunal finds that the applicant’s current enrolment and future plans supportive of his claims that he sees Australia as a temporary location in which to study.

21. Although the applicant has changed from qualifications in commerce, to hotel management to business the Tribunal accepts the submission that each course was related to working and obtaining managerial roles in business. The Tribunal also accepts his reasons for studying Automotive Technology, that the applicant had genuine interest in the field and that after several unsuccessful attempts needed to rebuild his confidence and academic ability before a further attempt at his Bachelor Degree.

22. The Tribunal accepts that the applicant is genuinely enrolled in the Bachelor of Business and intends to study the course to its completion. The Tribunal accepts that the proposed course will complement the applicant’s existing qualifications, particularly the Associate Degree in Commerce and Business.  Further that by undertaking the Bachelor degree that the applicant is progressing academically. The applicant has undertaken two semesters of the course, he has passed all subjects, obtaining credits and high distinctions in some, and has paid regular course fees.

23. The Tribunal notes the family ties in China of his parents, grandparents and extended family. The Tribunal has considered that the applicant’s girlfriend is currently with him in Australia, however the Tribunal accepts his evidence that she has in recent weeks finished her studies and intends to return to China. There is no evidence of military service commitments or political or civil unrest that would act as an incentive for the applicant to remain in Australia.

24. The Tribunal accepts the applicant’s evidence that he had not worked at all in Australia and had been maintained solely by his parents. There is no evidence before the Tribunal to demonstrate that he has strong ties by way of employment to remain in Australia. He has provided evidence of considerable term deposits and transfers of funds from China that demonstrate that he has access to financial resources and the Tribunal accepts that this operates as a financial incentive for him to return to China.

25. The Tribunal had concerns that the applicant’s migration history records that he has spent a considerable amount of time onshore since his arrival in 2011. In response to the Tribunal’s concerns that this may demonstrate an absence of strong ties to his family in China, the applicant gave evidence that his parents had visited him on 4 occasions since his arrival in addition to his three trips to visit them. The applicant claimed he was concerned about leaving Australia once his visa was refused. The Tribunal accepts that in these circumstances he was anxious to complete his studies as soon as practicable. Although the Tribunal has concerns, in the applicant’s migration history he has provided evidence that he continued to undertake study in Australia. The Tribunal has given him the benefit of the doubt and accepts that his limited overseas travel can be seen as a reflection of his attempts to pursue those studies.

26. The Tribunal accepts the evidence of the applicant that after completion of his studies he will return to China. On the material before it the Tribunal finds him to be a credible and genuine student.

27. One the basis of the above having considered the applicant’s circumstances, his immigration history, the matters required by Ministerial Direction 53 and other matters it considers relevant, the Tribunal is satisfied that the applicant intends to stay in Australia temporarily. Accordingly the applicant does meet cl 573.223(1)(a).

28. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

29. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

    ·cl.573.223(1)(a) of Schedule 2 to the Regulations.

    Penelope Hunter
    Member