Huang (Migration)

[2017] AATA 2184

Huang (Migration) [2017] AATA 2184 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Renhao Huang
Ms Yan He
Master Moyu Huang
Miss Moyang Huang

CASE NUMBER:  1614187

DIBP REFERENCE(S):  BCC2016/2427167

MEMBER:Adrienne Millbank

DATE:8 November 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 08 November 2017 at 4:39pm

CATCHWORDS
Migration – Student (Temporary)(Class TU) ­ – Subclass 500 (Student ) visa – No significant incentive for applicant to return – Enrolled course at a lower level than existing qualifications – No reason for career change

LEGISLATION
Migration Act 1958, ss 65, 359C, 499
Migration Regulations 1994, Schedule 2 cl 500.212, cl 500.311

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 on 19 August 2016 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 July 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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.

3. 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 genuinely intended to stay in Australia as a student.

4. The Tribunal wrote to the applicant, through his representative, on 10 October 2017 inviting him to provide, by 24 October 2017, information regarding any current enrolment in a registered course of study, and information in support of his claim to genuinely intend to stay in Australia temporarily.  The applicant was advised that if the information was not received by that date and no extension of time was sought or granted, the applicant would lose any entitlement he might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments. No response was received, and the Tribunal has decided, pursuant to S.359C of the Act, to make a decision on the review.

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

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

7. The applicant was born in China in 1986. He is married with two children, a daughter born in 2011 and a son in 2015, who are included in the application. He first arrived in Australia on a Visitor Visa on 23 June 2015. He was granted a Temporary Work (UC-457) visa on 6 August 2015 as a secondary applicant, with his wife as the primary UC-457 visa holder.

8. The applicant has a Bachelor of Management from Southeast University in China and has worked in Assisting Accountant, Management and Company Secretary positions in manufacturing and financial service industries in China.

9. At the time of application he described himself as not in employment. He applied for the Student visa while holding a Temporary Skilled (subclass 457) visa. He was granted a Bridging A Visa on 21 July 2016 in association with the Student visa application.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 intends genuinely to stay temporarily in Australia.

    Genuine applicant for entry and stay as a student (cl.500.212)

11. 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?

12. 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.

13. 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.

14. The applicant’s parents were in China at the time of application but his wife and two children were with him in Australia, and are included in the application. In the circumstances of this case, the Tribunal is not satisfied that the applicant’s personal ties to his home country would serve as a significant incentive for him to return there.

15. As noted above the applicant has a Bachelor degree in Management from the Southeast University in China and experience working at management and company secretary levels in manufacturing and financial businesses in China. He provided no reasons or arguments as to how the qualifications he was proposing to obtain—a Diploma in Leadership and Management and an Advanced Diploma in Translating—would enhance his career prospects in China. The Tribunal notes that the Diploma in Leadership and Management for which the applicant enrolled is at a lower level than the Bachelor degree in Management that he already holds from a prestigious university in China. The applicant provided no explanations as to why he might be seeking a career change and what options might be open to him in the field of interpreting and translating in China.

16. As noted above the applicant did not respond to the Tribunal’s invitation to provide further information in support of his claim to be genuinely intending to stay in Australia temporarily. As the applicant did not provide the information as requested the Tribunal did not have the opportunity to question him at a hearing regarding his motivations and intentions, or to ask him whether there were any other relevant matters. The Tribunal notes that no such matters were raised at the time of application.

17. On the basis of the information and evidence available, the Tribunal has formed the view that the applicant applied for the Student visa with the intention of establishing a pathway for his family to remain in Australia. The Tribunal therefore is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

18. As the applicant does not meet cl.500.212, the secondary applicants do not meet cl.500.311.

19. 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. Accordingly, the decision under review must be affirmed.

    DECISION

20. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Adrienne Millbank
    Member