Jiang (Migration)

[2022] AATA 1428

Jiang (Migration) [2022] AATA 1428 (5 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zeyu Jiang

REPRESENTATIVE:  Mr Jiang Su (MARN: 0742634)

CASE NUMBER:  1936199

HOME AFFAIRS REFERENCE(S):          BCC2019/5433016

MEMBER:Gabrielle Cullen

DATE:5 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 05 May 2022 at 12:10pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – multiple courses completed – no current enrolment – value of the course to benefit future career – property ownership in China – decision under review affirmed         

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.111, 500.211,500.212; r 1.03

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 on 9 December 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 October 2019. 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.

3. The applicant arrived in Australia on 5 July 2011 on a subclass 571 student visa valid to 15 March 2014 and was then granted a subclass 573 visa to 15 March 2018. He then held a subclass 485 visa to 9 November 2019 and applied for the visa to which this decision relates on 29 October 2019. During this period, he departed Australia and returned on 9 occasions, finally departing on 16 January 2020.

4. With his application for the visa he provided evidence of enrolment in an Advance Diploma of Translating from 11 November 2019 to 8 November 2020. The evidence indicates he successfully completed this course, online after he departed on 16 Janaury 2020

5. The evidence indicates he previously successfully completed  High School in Australia and a Bachelor of Engineering. The evidence indicates he has successfully completed all courses he has been enrolled in.

6. In the application for the visa, the applicant indicated his mother was in China and that on return he would start his career in the field of civil engineering. He provided evidence as to past courses completed, evidence to meet the financial capacity criteria, evidence of overseas health insurance to 28 January 2021 and a statement addressing the genuine temporary entrant criteria in which he indicated he was studying to strengthen his English and translating skills which would be beneficial to his future work in an international company in Beijing. He noted in 2019 he had applied for employment in several engineering/construction companies in Beijing and his weakness was that he did not have sufficient English skills. As a result, he claims he decided to study an Advanced Diploma in Translating. He also notes that during his time in Australia every year he has returned to visit his mother in China and that he must return to take care of her.

7. The delegate decided to refuse to grant the visas on 9 December 2019. The delegate decided to refuse to grant the visas because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that she is not a genuine applicant for entry and stay as a student. The delegate was concerned as to the value of the course to the applicant’s future having already completed a Bachelor of Engineering in Australia in December 2017.

8. On 23 December  2019 the applicant lodged an appeal to the Tribunal and attached the decision of the Department. He also provided evidence of positions he could obtain as an engineer, evidence of property ownership with his mother in Beijing and a submission addressing the reasons for refusal by the Department

9. On 5 April 2022 the Tribunal wrote to the applicant and invited him to attend a hearing on 4 May 2022 by telephone.

10. The letter, among other matters, requested the applicant provide a current Confirmation of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.211. It noted that this is required for the grant of a student visa. The letter also indicated that the Tribunal may assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

11. Because there was no information provided about whether the applicant was currently enrolled in a course of study, and therefore whether he satisfied cl.500.211, the Tribunal caused a search of PRISMS, being the Provider Registration and International Student Management System register, to be undertaken. The purpose of this search was to ascertain whether the first named applicant was enrolled in a registered course.

12. According to the PRISMS website, the Department of Education, Skills and Employment is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It is recorded that PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the Education Services for Overseas Students Act 2000. It is further noted that PRISMS provides a secure system for providers of registered educational institutions to comply with legislative requirements by issuing confirmations of enrolments as ‘evidence of enrolment’ in a registered full-time course as required by the Department of Home Affairs and reporting changes in course enrolment, particularly where study ceases, or the duration of the study changes.

13. It is therefore apparent that PRISMS is a business record of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas. While it is possible providers may not update PRISMS as required, the Tribunal accepts that PRISMS is a reliable record of enrolments, unless there is specific evidence to the contrary in relation to a particular case. There is no such evidence in this case.

14. The PRISMS searches revealed that the applicant did not hold a current confirmation of enrolment in a registered course as at 21 February 2022 and 2 May 2022, being the dates of the searches.

15. Prior to the hearing the applicant provided the following statement

    On 5 April 2022 I received an email from Administrative Appeals Tribunal inviting me to attend a hearing. Also I was asked to provide further information and supporting documents.

    Now I submit the documents that show my past studies in Australia:

    ·High school Certificate and Transcript from Kelvin Grove State College (graduated in December 2013);

    ·Bachelor of Engineering from QUT (February 2014 to November 2017);

    ·Diploma of Interpreting from SIIT (July 2016 to December 2016);

    ·Advanced Diploma of Translating from Frontier Education (November 2019 to November 2020)

    My evidence that I am a genuine student:

    Even after my student visa was refused, I continued to study in Frontier for Advanced Diploma of Translating. From 17 January 2020 to 04 February 2020 I went back to China to see my mother (From 2012 to now I had travelled back to China 9 times, as the only child of my mother) with the new Bridging B visa approved on 13 January 2020. However, due to the sudden outbreak of COVID-19 and Australian ban, I could not come to Australia as planned.

    As the Advanced Diploma of Translating is really what I want to study, I continued my study online, make tuition payments as required (I had submitted my payment plan in offer letter, and my payment receipts). I had paid all tuition fees, I got school letter to show that I met satisfactory course progress. According to my CoE, I successfully got my Advanced Diploma of Translating on 1 December 2020.

    I had spent my most important years in Australia, in the future I may work to promote and import Australia products to China, and have business trips to Australia, or just travel back to my alma mater Queensland University of Technology. After I get married I wish to take my wife to beautiful Australia for our honeymoon.

    In my GTE Statement for student visa application, I had explained the importance of Interpreting and Translating for my future career development “with my Australian Bachelor of Engineering (Civil and Construction) and Interpreting/Translating skills, I will have more chances to find a good job in an international company. I can make more money, and can cover all my education investment in 4 years...” I am not using the program to extend my stay in Australia, I study interpreting and translating only because it is useful for me. The evidence is that I finished Diploma of Interpreting during my QUT Bachelor study with student visa.

    The translating course indeed increases my chance of getting employed. Three months after I graduated from Frontier and held the Advanced Diploma of Translating certificate, I was offered a position as a junior engineer in the company (BMP) that I am currently working with, which provides engineering consulting services to foreign clients. Because this job role requires writing bilingual reports and emails when communicating among foreign clients, the general contractor, designers and local government, and also involves translating some documents from the local government from Chinese into English for the client’s understanding, my employer believes that I am competent in taking this position with my Engineering background along with my translating skill, and I have the ability to facilitate communication between parties that do not share a common language and assist the project to run smoothly. The Diploma of Interpreting and Advanced Diploma of Translating I submitted to the employer helped me grab this good job offer, so I benefited a lot from the skill I gathered from translating study and I believe I will have a bright feature in my career.

    I also submit the House Property Right Certificate, which is in my mother and my name.

    With my current visa refusal history, it is quite possible I will get future visa application refused. This visa refusal will actually cut my relationship with Australia.

    Since the Advanced Diploma study is finished, I currently do not have a CoE, but if necessary, I can continue to ask the school to provide me a new CoE so that I can get the new student visa. As a QUT and Frontier graduate, an international student who loves Australia very much, I wish I can erase the visa refusal history. Thank you very much for your consideration!

16. He also provided the following documents

    ·Bilingual Email written at place of employment dated 9 March 2022

    ·Bilingual Email written at place of employment dated 26 September 2022

    ·Employment Offer to Mr Zeyu Jian from BMP Construction Consulting (Shanghai) Co Ltd dated 11 March 2021

    ·Advanced Diploma of Translating certificated issued by Frontier Education issued 1 December 2020

    ·Record of Results from Advanced Diploma of Translating issued by Frontier Education issued 1 December 2020

    ·Completion letter of Advanced Diploma of Translating issued by Frontier Education issued 9 November 2020

    ·Bachelor of Engineering (Civil and Construction) certificate issued by Queensland University of Technology Australia issued on 12 December 2017

    ·Record of results from Bachelor of Engineering degree issued by Queensland University of Technology Australia issued 12 December 2017

    ·Diploma of Interpreting and record of results from Diploma of Interpreting issued by Sydney Institute of Interpreting & Translating on 15 January 2017

    ·Year 12 Certificate, record of results, Overall Position issued by the Queensland Studios Authority and Queensland Government on 13 December 2013. Completion of studios at Kelvin Grove State College.

17. The applicant appeared before the Tribunal on 4 May 2022 by telephone to give evidence and present arguments.

18. The applicant confirmed he was not currently enrolled in a course of study. The Tribunal raised with the applicant via the process outlined in s.359AA that the PRISMS record indicates he is not currently enrolled, and that enrolment ceased on 8 November 2020 when he successfully completed the Advanced Diploma of Translating.

19. The applicant responded that he returned to China on 16 Janaury 2020 for Chinese New Year as he does every year and because of Covid could not return to Australia. He noted that he then finished the course online while living in China and now because of that study had been able to obtain employment in an international firm in China.

20. The Tribunal discussed with him whether he is a genuine student and noted that both the enrolment and genuine temporary entrant criteria are time of decision determinations.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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 before the delegate was whether the applicant met the criterion in cl.500.212, however as raised with the applicants another matter before the Tribunal is whether he meets cl.500.211.

23. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

24. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

25. The Tribunal raised with the applicant the requirement of enrolment for the grant of a student visa and referred to cl. 500.211 in writing and on a number of occasions at the hearing. The applicant advised that he was not currently enrolled in a course of study

26. The evidence from the applicant and the PRISMS record, raised with the applicant via s.359AA, is that the applicant is not currently enrolled in a course of study. The Tribunal has considered the reasons for the non-enrolment in a course of study including that he is offshore and finished his course. Therefore, on the evidence before it, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

27. While the Tribunal has affirmed the decision based on the applicant’s lack of enrolment in a course of study it is of the view that he was a genuine student and genuine temporary entrant, including at the time of application. The Tribunal accepts that the applicant was unable to return to Australia to continue his study due to Covid and it is testament to him and evidence that he was a genuine student that he continued to study online and successfully completed the Advanced Diploma of Translating while living in China. He has now obtained the employment position he wished to obtain which he indicated in his application he needed improved English skills. But for the Tribunal delay in making its decision, being a period of over 2 years and that these criteria are time of decision criteria the Tribunal is of the view that the applicant would have been found to meet cl.500.211 and cl.500.212. The refusal is therefore due to the delay in the Tribunal making the decision, with the applicant in the meantime finishing his course rather than the applicant not studying for the reasons he claimed in his application or not in the past being a genuine student.

28. 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

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

    Gabrielle Cullen
    Member