Liu (Migration)

[2019] AATA 2262

Liu (Migration) [2019] AATA 2262 (31 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yang Liu

CASE NUMBER:  1722942

HOME AFFAIRS REFERENCE(S):           BCC2017/2584840

MEMBER:Vanessa Plain

DATE:31 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 31 March 2019 at 5:20pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – unsatisfactory academic progress – length of time in Australia – personal ties to Australia – owns property – lives with girlfriend – decision under review affirmed

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 Immigration and Border Protection on 6 September 2017 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 for the visa on 20 July 2017. 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 delegate in this case refused to grant the visa 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 intended genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 25 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

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

7. 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?

8. 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.

9. 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.

10. The applicant provided a GTE statement to the Tribunal dated 29 September 2017 that outlined the following:

    ·    He has been in Australia since 2008, admits that he is not good at study, but contends that he has been studying throughout these years;

    ·    He commenced a bachelor course in 2008, endured an unsuccessful study experience and changed to a vocational level course in 2011;

    ·    Due to family expectation, he decided to study a further bachelor program in 2012 and due to low academic performance, he was asked to withdraw from this course;

    ·    He does not have a clear plan for career development at the moment, but he will go back to China to develop his career;

    ·    He believes obtaining another bachelor qualification will help his future career in China; and

    ·    He is supported financially in Australia by his family in China.

11. In the hearing, the applicant provided a current confirmation of enrolment (COE) to the Tribunal which provided that the applicant is currently enrolled in a Master of Business Administration at the Holmes Institute which commenced on 18 March 2019 and is scheduled for completion on 31 July 2020.  The applicant gave evidence that he believed the Masters Degree in Business Administration was prestigious and his father wanted him to do it as a back up plan.  He stated further that he thought this degree would help him obtain a job as a civil servant when he returned to China.

12. The applicant provided a written response dated 4 March 2019 to a request for student visa information under s.359(2) of the Migration Act. It provided as follows:

    ·    He did not complete a Diploma of Commerce at MIBT which commenced in November 2008 and was scheduled for completion in February 2010;

    ·    He did not complete a Bachelor of Commerce at the University of Ballarat which commended in March 2010 and was scheduled  for completion in August 2011;

    ·    He completed a Diploma of Management at ANI by March 2012;

    ·    He did not complete a Bachelor of Business at Holmes Institute which commenced in March 2012 and was scheduled for completion in October 2012;

    ·    By July 2017, he completed a Bachelor of Business at Cambridge International College which commenced in November 2012;

    ·    He did not complete a Diploma of Community Services which he commenced in July 2017; and

    ·    He planned to start a social support business in China which he expected would produce an income for him of over 1,000,000 RMB.

13. By the time he intends to finish his Masters Degree in Business Administration, he will have been resident in Australia as a student for approximately 12 years.  The applicant came to Australia aged 28 years of age and if he completes his current degree, he will be approximately 40 years of age.  He will have spent a substantial part of his adult life in Australia engaged in study that normally takes two to three years to complete.     

14. In the hearing, the applicant was asked for an explanation as to why he hadn’t completed so many courses of study in which he’d been enrolled.  The applicant’s reason was that he wasn’t a good student, wasn’t hard working when he started studying and if he could do it again, he would do better.

    Ministerial Direction Number 69

15. The Tribunal turns to consider Ministerial Direction Number 69 (MD69).

16. The Tribunal considers clause 9 and 10 of MD69 – the applicant’s circumstances in his own country.

17. The applicant outlined reasons for not studying in China.  When asked why he isn’t studying in China, the applicant stated that the reason he was not doing so is that it is more prestigious to be doing the course in Australia.  The applicant said further that his father wanted him to complete his course in Australia and simply wants him to finish his studies. 

18. The Tribunal is inclined to the view that although parental attitudes carry some weight, the applicant does not, on balance, have reasonable reasons for not undertaking the study in his home country.  The Tribunal is further of the view that the applicant has had sufficient time, over the course of the last decade, to complete a Masters of Business Administration and he has not done so.   

19. The applicant outlined ties to his home country and his economic circumstances.   The applicant is an only child.  His mother and father reside in China.  His parents own property in China and the applicant owns an apartment in China in his own name.  He does not work in Australia and his parents support him financially.  He resides in a townhouse in Mitcham which he owns, together with his mother. Since being in Australia since 2008, the applicant has returned home between 8 to 10 times, for approximately one month per trip.       

20. The Tribunal finds that the ties outlined above do not serve as a significant incentive for the applicant to return to China.  In this regard, although the Tribunal recognises that the applicant’s mother and father reside in China, the Tribunal places greater weight on the fact that the applicant owns property in Mitcham and does not have any economic incentive to return to China, in the form of paid employment. 

21. There is no evidence before the Tribunal of military service commitments, or political and civil unrest in China, that would serve as a disincentive for the applicant to return home.

22. The Tribunal considers clause 11 of MD69 – the applicant’s potential circumstances in Australia.

23. The applicant lives with his girlfriend in his townhouse in Mitcham, which he owns with his mother.  The applicant’s girlfriend is also from China and she is studying in Australia on a student visa.  She studies at RMIT.  The applicant’s mother has visited him in Australia once. 

24. The applicant gave evidence that he is not very social.  He does like to celebrate the Chinese New Year holiday.  He does not know his neighbours that well.

25. The applicant gave evidence that he does not work and that his parents support him financially. 

26. There is evidence before the Tribunal as outlined above that the applicant has enrolled in many courses since his arrival in Australia in 2008, most of which he has not completed.

27. The Tribunal is of the view that the applicant has developed a well ordered life in Australia which commenced in 2008.  He owns real property in Mitcham and he is in a serious relationship insofar as he lives with his girlfriend in the townhouse in which he owns.  These are significant ties to the Australian community.  They give purpose and direction to the applicant’s life.

28. The Tribunal is of the view that those ties present as a strong incentive to remain in Australia and the Tribunal is inclined to the view that the applicant is using the student visa program to maintain ongoing residence in Australia and circumvent the intentions of the migration program.  In reaching this view, the Tribunal places significant weight on the fact that the applicant has enrolled in several courses since 2008, most of which he has failed to complete, as outlined above.     

29. The Tribunal considers clause 12 of MD69 – the value of the course to the applicant’s future. 

30. The applicant’s study history since arriving in Australia in 2008 is generally unremarkable.  The applicant’s study history is set out in paragraph 12 hereof.  When asked to explain his poor progress with his studies, the applicant’s reason was simply that he wasn’t a good student, wasn’t hard working when he started studying and if he could do it again, he would do better.

31. The applicant explained the value of his current course to his future.  He explained that the degree in Business Administration will become a bonus when he applies to be a civil servant in China and he can expect to earn between 8,000-10,000 RMB.  The applicant’s explanation for undertaking a Masters of Business Administration instead of a Diploma of Community Services which he commenced in July 2017, was that his father told him to do it.  The applicant did not explain the links, if any, between these fields of study. 

32. The Tribunal is inclined to the view that the real value of the proposed course to the applicant is that it will enable him to remain in Australia for another 2 years.  The Tribunal is satisfied that the applicant would gain skills and knowledge from the completion of a Masters of Business Administration, however, these skills would not provide a benefit to the applicant  such that they would outweigh the time and expense incurred in undertaking the course.          

33. The Tribunal considers clause 13 and 14 of MD69 – the applicant’s immigration history.

34. The applicant gave evidence that he has previously visited Thailand and New Zealand for holidays and made several trips to his home country.  There is no evidence before the Tribunal that the applicant has ever been in breach of visas to Australia or other countries, nor has the applicant ever been refused a visa previously.  The Tribunal makes no adverse findings against the applicant concerning his immigration and visa history. 

35. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

36. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

37. 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

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

    Vanessa Plain
    Member