LIU (Migration)

[2018] AATA 5719

LIU (Migration) [2018] AATA 5719 (26 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs HAIYAN LIU

CASE NUMBER:  1712155

HOME AFFAIRS REFERENCE(S):           BCC2017/1744806

MEMBER:M. Edgoose

DATE:26 October 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 26 October 2018 at 11:22am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – genuine temporary entrant – genuine student – no response to tribunal communication – enrolled in an approved course of study – Certificate of Enrolment (COE) – evidence of enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359(2), 359C, 360(3), 363A, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 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 26 May 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 16 May 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 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 intends genuinely to stay temporarily in Australia.

4. On 7 August 2018 the applicant was invited under s.359(2) of the Act to provide information about her proposed course of study and her entry to stay in Australia as a student. The applicant was informed that if the Tribunal did not receive the information by 21 August 2018, that the Tribunal may make a decision on the review without taking any further action to obtain the information.

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. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.

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 did not provide any information to the Tribunal in regards to this matter and did not respond to the invitation to provide information under s.359(2) within the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information in these circumstances as the applicant did not provide any information in response to the Tribunal’s s.359(2) letter.

11. The Tribunal has reviewed the decision of the delegate. This decision is not binding on the Tribunal and the Tribunal brings an independent view to the review application.

12. The delegate’s decision dated 26 May 2017, which was supplied to the Tribunal by the applicant, stated that the applicant arrived in Australia on 6 September 2016 on a FA Subclass 600 Visitor visa and departed on 15 November 2016. The applicant returned to Australia on a FA Subclass 600 Visitor visa on 4 April 2017 and lodged an application for a Subclass 500 Student visa (Vocational Education and Training Sector) on 16 May 2017 to study a Certificate III and IV in EAL (Access).

13. The delegate’s decision mentioned that the applicant is married with one child and that the applicant’s husband and child would not be accompanying the applicant to Australia.

14. The Tribunal has had regard to the applicant’s “Personal Statement” that was submitted to the Department (DIBP Folio 29) which mentioned the following:

    a.The applicant came to Australia for a visit and became attracted to the beautiful scenery and the wonderful environment.

    b.The applicant had some friends who had studied in Australia and had been told that Australia has a high quality education system and a multicultural study environment.

    c.The applicant used to work as a Beauty Therapist back in China. The applicant stated that many senior customers like to choose an advanced beauty specialist who can speak English and that this is the reason why she chose to do an English course.

    d.The applicant stated that she is married. Her husband believes by studying English it will help develop her career path and that she will be able get a higher salary back in China.

    e.The applicant stated that she will return to her home country to live with her family and try to run her own skin clinic if she is granted the opportunity to complete her studies in Australia.

15. The Tribunal has had regard to the submission made by the applicant titled “Appeal” that mentioned the following (AAT Folio 24):

    a.The applicant had worked for Beauty Salon company for a period of 5 years and because of the increase of international business she came to Australia to apply for a student visa to improve her English.

    b.The applicant felt that it was unbelievable that her student visa application had been rejected with no obvious reason and that is why she has appealed that decision. 

    c.The applicant planned to improve her English and she took the IELTS test on 24 September 2016 and received a poor result.

    d.The applicant came to Australia to look at the various English language school in Melbourne and return to China to discuss her study plan with her husband and her company boss. The applicant was advised to return to Melbourne by her husband and boss to finds a suitable language school.

    e.After completing the IELTS tests a second time with a better result the applicant returned to Australia with AUD $43,000 in the bank which the applicant stated was enough for her living and study expenses during her time in Australia.

    f.The applicant returned to Australia on a  FA Subclass 600 Visitor visa and while onshore applied for her study visa after gaining a COE, OSHC insurance and a health check.

16. The applicant submitted to the Tribunal Confirmation of Enrolments for a Certificate III in EAL (Access) and a Certificate IV in EAL (Access) through Gurkhas Institute of Technology that commenced on 17 July 2017 and is due to be completed on 16 December 2018 (AAT Folio 17 and 18). The Tribunal notes that both of the COEs were cancelled on 1 June 2017 as a result of change to the COE and the student details.

17. Based on the information before the Tribunal there is no evidence that the applicant is currently enrolled in a course of study. Therefore the Tribunal is not satisfied that at the time of this decision, that the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

18. There is no relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: whether the applicant has reasonable reasons for not undertaking the study in their home country, the extent of the applicant’s personal ties to their home country, any potential military service in the home country, political circumstances in the home country, civil unrest in the home country, the economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country, remuneration the applicant could expect to receive in the home country compared with Australia, the applicant’s ties with Australia which would present as a strong incentive to remain in Australia, the value of the course to the applicant’s future and whether the applicant is seeking to undertake a course of consistent with their current level of education,  the value of the course to the applicant’s future employment, circumstances in the home country relative to Australia or any other country and the applicant’s circumstances in the home country relative to others in that country.

19. 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).

20. 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.

21. 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

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

    M. Edgoose
    Member