Liu (Migration)

[2019] AATA 3071

Liu (Migration) [2019] AATA 3071 (16 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yuxin Liu

CASE NUMBER:  1726642

DIBP REFERENCE(S):  BCC2017/2890104

MEMBER:Stephen Conwell

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 May 2019 at 12:10 pm (VIC time)

DATE OF WRITTEN RECORD:                6 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant criterion not met– enrolment in vet level courses – lack of academic progress – maintain ongoing residence –decision under review affirmed

LEGISLATION
Migration Regulations 1994, Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 October 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 16 May 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The Tribunal will now proceed to an oral decision in file number 1726642.  The applicant is Ms Yuxin Liu. 

4. The applicant applied for her Student visa on 12 August 2017 and by a decision dated 14 October 2017 a delegate of the Department of Immigration and Border Protection refused her application on the grounds that the delegate was not satisfied that the applicant was a genuine temporary entrant to Australia. 

5. Prior to today’s hearing the applicant provided evidence in support of her application, including academic transcripts, copies of completed Bachelor and Masters qualifications as well as COEs and as stated previously, a GTE - genuine temporary entrant statement to the Tribunal as well as some evidence of fee payment schedule.  The applicant also completed the Tribunal’s request for Student visa information and returned it to the Tribunal. 

6. According to all of this information the applicant first arrived in Australia on a 573 visa on 4 October 2011.  She came to Australia on a 573 visa to study towards a Bachelor of Commerce in Human Resource Management.  The applicant completed that Bachelor degree in December of 2013 and went on to complete a Master of Commerce in International Business in December 2015. 

7. The delegate’s decision, having regard to the applicant’s study history and all other factors in Ministerial Direction 69 concluded that the applicant was not a genuine  temporary student entrant.  The delegate noted that the applicant was applying for a further Student visa in order to pursue studies at a level less than the qualification she had already attained.  The delegate also noted that the applicant had a study gap of some six months in which she was not enrolled from April to September 2017.

8. According to the evidence before the Tribunal, the applicant did complete  the Bachelor of Commerce and Master of Commerce, the latter in December of 2015, however since that time whilst she has remained on a 573 visa, the applicant has not been enrolled in the Higher Education sector since December of 2015.

9. The Tribunal put to the applicant that her visa conditions would have included two common conditions to Student visas, Condition 8202 and Condition 8516.  As  the applicant is not a Foreign Affairs student, Defence student or secondary exchange student, condition 8202 required the applicant to maintain enrolment in a full time registered course and it appears that the applicant was not enrolled for a period of some six months between April to September 2017.

10. When the Tribunal put that to the applicant her response was that she was engaged in correspondence with her education provider at the time and claims to have been studying during that period, however there is no evidence before the Tribunal to dispute her PRISMS record as noted by the delegate which notes that she was not enrolled for the period April to September 2017.

11. The Tribunal put to the applicant that Condition 8516 which attaches to her 573 visa requires her to continue to be a person who would satisfy the primary or secondary criteria as the case may be, for the grant of a Student visa.  What that means is that the applicant was required, having been issued a 573 visa, for study in the Higher Educationsector, she was required to maintain enrolment in the Higher Educationsector for the period of her visa.

12. Since completing her Master of Commerce degree in December of 2015 the applicant has not maintained enrolment in the Higher Education sector and  therefore has been in breach of condition 8516 since December of 2015.  Her current application to continue studies in the vocational sector is a continuation of that breach.  When that was put to the applicant her response was that she was not aware of that condition attaching to her visa.

13. The Tribunal put to the applicant that by December 2015 she had exceeded her initial study ambitions by completing both a Bachelor and Master of Commerce and it would appeared to have been an opportune time for her to return to her home country of China at the end of 2015 to embark upon the next stage of her life.

14. The applicant however, did not choose to return to China permanently at the end of 2015.  Instead she returned to Australia and enrolled in a lower level vocational course of study which she seeks to continue.  The applicant’s evidence to the Tribunal is that the Bachelor and Masters qualifications she would have worked hard to obtain at great expense was to theoretical.  She claims to have made attempts to seek employment in China after completing her Master of Commerce degree but found it difficult.  She claims to have enquired as to educational courses in China however concluded that they were not as relevant or attractive for study as the educational opportunities here in Australia.

15. The Tribunal expressed scepticism that someone with a Bachelor and Master degree in Commerce would have difficulty pursuing a satisfying career in China and the Tribunal is not persuaded that the applicant’s explanation of her enquiries of pursuing educational avenues in China or of her attempts to embark upon a career in China are genuine or credible.

16. In regard to the factors in Ministerial Direction 69, the applicant’s home circumstances are that she is an only child.  Her parents are alive and living in China, her father is a university professor and her parents provide her with all her financial support whilst she is here in Australia.  The applicant advised that she has no property or significant personal assets in her name in China and that she returns to China on a regular basis from Australia.

17. In respect to her potential circumstances in Australia, the applicant advised that she is not working and obtains all her financial support from her parents.  She is living in share accommodation with fellow students in Australia.  She confirmed that there are no military service reasons or political or civil unrest factors which would prevent her from returning permanently to China.

18. The applicant has a few friend here in Australia but many of them have now returned permanently to Australia(sic).  In respect to the value of the course to the applicant’s future, the applicant’s GTE statement states that she will go back to China to open a new company, that she wants to run her own business and that the vocational study that she is proposing, the Advanced Diploma of Leadership and Management will assist her in pursuing that career goal.

19. The Tribunal put to the applicant that in view of her express career goal of pursuing a start-up or entrepreneurial career path that indeed no further study of any kind is required.  The applicant demurred and claimed that the vocational studies she is now proposing will give her the practical skills she requires to embark upon this entrepreneurial career.

20. In respect to the value of her current studies to the applicant’s future, the Tribunal does not accept that her career goals as stated are anything other than vague aspirations, and having regard to her been awarded a Bachelor of Commerce and Master of Commerce, the Tribunal is not persuaded that her current studies for the last four years in the vocational sector will add appreciable value to either the applicant’s career goals or her remuneration prospects.

21. In respect to the applicant’s immigration history, the applicant confirmed that she has applied only for 573 visas and she has made no other visa applications in Australia.  When prompted by the Tribunal in respect of whether the applicant had any other relevant matters to put before it, the applicant noted that she was prepared to sign a statutory declaration confirming that she would depart Australia permanently should she be allowed to complete her current studies.

22. The applicant’s representative’s supporting comments noted that the applicant did not have any financial concerns with regard to her continuing study and stay in Australia and repeated the applicant’s statement that she would be prepared to sign a statutory declaration confirming that she would depart Australia permanently upon completion of her current studies.

23. The Tribunal has considered all of the written information and evidence put before it as well as the oral evidence of the applicant at today’s hearing and her representative’s concluding comments.  The Tribunal notes that the applicant has been resident in Australia for some eight years. She completed a Bachelor and Master level degrees in commerce in December of 2015 however since that time she has enrolled in a series of low cost vocational studies leading to an Advanced Diploma of Leadership and Management at vocational colleges.  The applicant has completed several of these vocational courses and claims that her studies in the vocational area will provide practical knowledge and experience to assist her career goals.

24. The Tribunal finds that the applicant’s explanation for her continued stay and study in Australia and her enrolment in vet level courses is not persuasive and the Tribunal does not accept that the value of her vocational studies are to her proposed career goals or future remuneration prospects.

25. The  Tribunal makes no findings against the applicant based on any potential military service, economic or political circumstances or civil unrest in her home country of China, nor does the Tribunal make any findings with respect to the applicant’s circumstances in her home country relative to others in that country.

26. In considering all of the evidence, the Tribunal is not satisfied that the applicant’s current studies add value to either her future career prospects or her remuneration prospects, having obtained both a Bachelor and Masters qualification some four years ago, the Tribunal finds that the applicant’s continued stay and study in Australia is not indicative of that of a genuine student, rather the applicant appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and the applicant does not genuinely intend to stay in Australia temporarily.

27. Overall, given the lack of academic progress since December 2015 the applicant’s immigration history, the length of time she has remained in Australia and  the lack of value of her current study to her stated career goals and remuneration prospects, the Tribunal finds that the applicant is using the Student visa program to circumvent permanent migration programs.

28. The Tribunal is therefore not satisfied that the applicant is a genuine student genuinely intending to remain in Australia temporarily. Accordingly, the Tribunal finds that the applicant does not meet Clause 500.212 of Schedule 2 of the Migration Regulations and noted above, the applicant confirms that she is applying for a Student visa and does not claim to meet the criteria for a Student Guardian visa.

29. Accordingly, the decision under review must be affirmed.  This decision is made at 12.10 on 16 May 2019.  This hearing is now concluded.  Thank you for your attendance.  You are free to leave.  You will be provided with a copy of that decision by your representative.

    DECISION

30. The Tribunal affirms the decision under review.

    Stephen Conwell
    Member