Hu (Migration)

[2022] AATA 4027

Hu (Migration) [2022] AATA 4027 (11 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ye Hu

REPRESENTATIVE:  Mr Hui Wang

CASE NUMBER:  2116353

HOME AFFAIRS REFERENCE(S):          BCC2021/259134

MEMBER:Vanessa Plain

DATE:11 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl 500.212 of Schedule 2 to the Regulations

Statement made on 11 November 2022 at 4:58pm

CATCHWORDS
MIGRATION – Student (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – COVID interruptions and health of child in home country – current attendance and progression, and intention to depart – value of course to applicant’s future – decision under review remitted

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

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 Home Affairs to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 19 February 2021. The delegate refused to grant the visa on 21 October 2021.

2. The delegate made the decision, in whole or substantial part, on the basis that evidence of:

   ·Current financial circumstances in the applicant’s home country

   ·Completion of study in Australia 

   ·Research of the applicant’s proposed courses 

   ·An explanation as to how an overseas qualification will assist the applicant attain their career goal

   was not provided as required to satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a subclass 500 student visa.

3. The applicant appeared before the Tribunal on 3 October 2022 to give evidence and present arguments. 

4. The hearing was conducted with the assistance of an interpreter in the English and Mandarin languages.

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

6. The delegate’s decision record reveals that the applicant is a Chinese national who first arrived in Australia on 27 December 2017 utilizing an initial Student Visa.  The delegate held concerns due to the lack of information referred to above, that the applicant’s primary motivation in applying for a Student visa was to secure ongoing residence in Australia, rather than due to a genuine desire to undertake the course of study.  For these reasons, the delegate determined that the applicant was not a genuine entrant

7. In advance of the hearing the Tribunal received the following documents directed to addressing the deficiencies set out by the delegate in the decision record, as follows:

   ·COE for a Diploma of Management and Marketing 

   ·GTE statement of the applicant

   ·A Response to Request for Student Visa Information

   ·A suite of academic documents evidencing course attendance, course completion and grade attainment in Australia since the applicant’s arrival

   ·Bank statements

   ·The delegate’s decision record

8. The Tribunal has considered the documents produced by the applicant. 

9. The applicant stated at the hearing that he has been studying continuously in Australia, but has struggled due to the interruption caused by the pandemic and his child became sick in his home country and for that reason, he didn’t complete a particular course.  He is progressing well in his marketing studies and intends to return home at the conclusion of those studies.    

10. The Tribunal finds that the applicant is not utilising the student migration program to obtain long term residency.  At the time of this decision the documentation before the Tribunal clearly establishes that the applicant has been continuously studying since his arrival onshore and has legitimate reasons for the interruption to his studies.  As at the time of this decision, the applicant is clearly attending class and progressing academically.  This is the applicant’s second student visa application and the documents produced demonstrate that he has a thorough understanding of his course and has modest financial ties to his home country.  Further, he has strong familial ties to his home country and is aware of his living expenses and visa conditions in Australia.   The Tribunal places weight on these factors as being indicative of the applicant being a genuine student who intends genuinely to stay in Australia temporarily for the purposes of study. 

11. The Tribunal further finds that the applicant has in his GTE statement reasonably demonstrated the value of the course to his future to an extent that outweighs the current cost of completing the course, by articulating how the completion of his current course will assist him find employment in his home country. 

12. The Tribunal is further satisfied that there is no information before the Tribunal to suggest that the applicant has an adverse immigration history in Australia.     

13. In light of the new evidence received and the findings set out above, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

    decision

14. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

    ·cl 500.212 of Schedule 2 to the Regulations

    Vanessa Plain
    Member