Ma (Migration)

[2020] AATA 4711

Ma (Migration) [2020] AATA 4711 (11 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jie Ma

CASE NUMBER:  1905909

HOME AFFAIRS REFERENCE(S):          BCC2018/5346571

MEMBER:Mark O'Loughlin

DATE:11 November 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 11 November 2020 at 3:48pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) (Subsequent Entrant) – secondary applicant member of family unit – previous student visa cancelled because of non-enrolment – three-year exclusion – compassionate or compelling circumstances justifying grant of visa – supporting partner while she is studying – partner currently studying online from home country – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.317, Schedule 4, criterion 4013(1)(b), (2)(b), Schedule 8, condition 8202

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 8 March 2019 to refuse to grant the applicant a Student (Temporary) (Class TU)(Subsequent Entrant) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 November 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant 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.500.317 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet public interest criterion 4013 (“pic 4013”).

4. The applicant appeared before the Tribunal on 28 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   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 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need to satisfy the secondary criteria.

7. The applicant is applying for a Subclass 500 (Student) visa as a member of the family unit of a person who holds a Subclass 500 (Student) visa.

8. The issue in the present case is whether the applicant satisfies subcluse 500.317 which is one of the secondary criteria that he must satisfy.

9. The applicant provided the following upon which the Tribunal relied in making its decision:

   i.A statement of the applicant’s dated 22 February 2019; and

   ii.A copy of the delegate’s decision dated 8 March 2019;

10. The Tribunal did not rely on any other documents in making its decision.

11. In evidence the applicant agreed that he had been the holder of a Student visa that was cancelled on 19 December 2018.

12. He agreed that his Student visa was cancelled for breach of condition 8202.  He understood that he breached that condition because he was not enrolled in a relevant course.

13. His admissions are consistent with the delegate’s finding that on 19 December the applicant’s subclass 573 student visa was cancelled under s.116(1)(b) of the Migration Act for a breach of condition 8202.

14. The Tribunal finds that the applicant’s last visa, a subclass 573 (Student) visa, was cancelled on 19 December 2018 under s.116(1)(b) of the Migration Act for breach of condition 8202.

15. In order to qualify for the Student (Subsequent Entrant)(subclass 500) visa that the applicant is now seeking he must satisfy clause 500.317. That clause relevantly provides that the applicant must satisfy pic 4013.

16. Pic 4013 can be summarised as relevantly providing at subclause 4013(2) that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 under certain circumstances.

17. At 4013(2)(b) those circumstances of cancellation include that “if the visa was of a subclass specified in Part 2 of this Schedule- because the person did not comply with a condition specified in that Part in relation to that subclass.”

18. The applicant’s previous 573 visa is of a subclass specified in Part 2 of Schedule 2 to the Migration Regulations at item 4058D.

19. Condition 8202 is one of the conditions that is specified in that part in relation to that visa Subclass.

20. Therefore because of the effect of subclause 4013(2)(b), the cancellation of the applicant’s subclass 573 visa in December 2018 gives rise to a risk factor contemplated at subclause 4013(2).

21. That being the case, the applicant is affected by a risk factor for the purposes of Subclause 4013(1).  He must therefore satisfy subclause 4013(1) (a) or (b) to satisfy pic 4013.

22. The application in this matter was made on 29 November 2018, just over 3 weeks before his visa was cancelled on 19 December 2018.

23. To satisfy subclause 4013(1)(a), the application should have been made more than 3 years after the applicant’s last visa was cancelled.  It was not and the Tribunal finds that the applicant does not meet subclause 4013(1)(a).

24. To satisfy subclause 4013(1)(b) the Minister (or on review, the Tribunal standing in place of the Minster) must be satisfied that, in the particular case;

    i.Compelling circumstances that affect the interests of Australia; or

    ii.Compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen

    Justify the granting the visa within 3 years after the cancellation.

25. The Tribunal asked the applicant whether it would affect the interests of Australia if the cancellation of his visa is affirmed. He did not say that it would.

26. He was asked if he is working or if he intends to work.  He replied that his whole purpose in seeking to regain his visa is to support his partner who is trying to finish her studies and that he does not intend to work so that he can devote himself to that.

27. He explained that she will finish her study in July 2021 and that she is studying Information and Technology Systems at the University of Tasmania.

28. He said that there has been some delay with her study because of the Covid-19 pandemic and that she is having to study online.

29. He further explained that she was not in Australia at the time of the hearing and that she is doing her study online from China.

30. He said that she does not like online study and it is slowing her down.

31. He said that despite the possibility of his partner not finishing her study until July 2021 he does not propose to work.

32. The applicant did not seek to suggest that there are any compelling circumstances affecting the interests of Australia that justify the grant of his visa.

33. The Tribunal notes that there are departmental guidelines (“PAM 3”) that, although they are not binding on the Tribunal, may provide some guidance as to what may constitute compelling circumstances that affect the interests of Australia.

34. These guidelines suggest consideration of Australia’s trade or business opportunities, Australia’s relationship with foreign governments or the risk of missing out on a significant benefit that the visa applicant could contribute, such as a skill that is highly sought after in Australia, if the person is not granted the visa.

35. There is no evidence of any such circumstances.

36. Further, there is no evidence that the exclusion period has arisen due to a Departmental error or that there is any unintended consequence of the exclusion provisions.

37. The Tribunal notes the applicant’s evidence that he does not intend to do any further study himself.

38. The Tribunal is not satisfied that there are compelling circumstances affecting the interests of Australia that justify the granting of the subject visa.

39. Therefore the Tribunal finds that the applicant does not meet pic 4013 (1)(b)(i).

40. In relation to pic 4013(b)(ii) the Tribunal must consider whether there are compassionate or compelling circumstances relevant to the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand resident that justify the granting of the visa within 3 years after the cancellation.

41. The applicant gave evidence that he has a relationship with 4 Australian citizens, his uncle, his aunt and 2 cousins.

42. He lives with them in Melbourne and believes that he has bonded with them.  He believes that they would be sad if he returned to China.  He did not provide corroborative evidence of that.

43. The Tribunal observed that the visa he has applied for is a temporary visa and that he will need to return to China anyway, even if it is granted.  The applicant said that by next July they will be used to the idea of his departure and will be less distressed.

44. He said that he pays them $500.00 per month in rent but that they do not rely on that money and have other income.

45. He said he also has friends who are Australian citizens and permanent residents and they will also be sad if he leaves.

46. The Tribunal observed that if the international travel situation eases and his partner returns from China, the couple will move to Hobart from Melbourne to pursue her study.  The applicant was asked whether that means that the sadness he suspects his friends may feel if he has to return to China would be something they will experience anyway when the applicant moves to Hobart.

47. He replied that his friends travel a lot and have been to Hobart so they may come and visit.  This is less likely if he moves to China.

48. The applicant was unable to indicate any other circumstances that would affect the interests of any Australian citizens or permanent residents or eligible New Zealand citizens if his visa is refused.

49. The Tribunal finds that the circumstances he has described are not relevant compassionate or compelling circumstances for the purposes of pic 4013(1)(b)(ii).

50. The Tribunal has had regard to the statement prepared by the applicant dated 22 February 2019 which relates to his relationship with his partner, his intention to obey his visa conditions if his visa is granted and his plan to return to China.  There is nothing in the statement that satisfies the Tribunal that the applicant meets pic 4013.

51. The Tribunal finds that the applicant does not meet pic 4013.

52. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.317

53. 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

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

    Mark O'Loughlin
    Member