MENG (Migration)

[2018] AATA 2942

MENG (Migration) [2018] AATA 2942 (27 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Qixiang MENG

CASE NUMBER:  1513923

DIBP REFERENCE(S):  BCC2015/2475332

MEMBER:Karen Synon

DATE:27 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 27 June 2018 at 3:39pm

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector visa)
– Genuine Temporary Entrant – Four previous CoEs cancelled due to non-commencement –Maintaining ongoing residency in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 1, Schedule 2, cl 573.223

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 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 to the Department of Immigration for the visa on 26 August 2015. The delegate decided to refuse to grant the visa on 30 September 2015. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. Where used in this decision:

   a.CoE refers to Certificate of Enrolment in a course of study;

   b.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   c.The Department refers to the Department of Home Affairs (previously the Department of Immigration and Border Protection);

   d.Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application.

4. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.223(1) of Schedule 2 to the Regulations because he was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

5. The applicant applied for review of the primary decision on 14 October 2015 and provided a copy of the department’s decision to the Tribunal.

6. The visa application form records that the applicant applied for this student visa in order to complete an Elementary to Advanced General English course; a Diploma of Building and Construction (Building) and a Bachelor of Applied Science (Construction Management).

7. The applicant provided the following relevant statement of genuine intention in support of his visa application:

   I graduated from Deakin University in July 2015.  I used to major in Commerce, but that is not my interest.  My parents helped me to choose the commerce course after I graduated from high school because my mother is a CPA accountant and she also wish me to continue her career.  I have been fond of construction when I was young.  However, due to my parents wish, I did not choose building and construction courses in Australia.  From December 2014 to current, I has (sic) been receiving the on-the-job training of Plasterer in S & L Plaster Logan Pty Ltd.  With the satisfaction to my training performance from the employer, I feel I found the right direction of my life.  I increasingly feel that I must pick up something I really interested in as a future career.  And I believe that it is never too late to start the dream.  Therefore, I decided to choose to pursue my study in building and construction, and enrolled in Diploma of Building and Construction (Building) plus Bachelor of Applied Science (Construction Management) in RMIT.

   In regard to the non-commencement of studies which indicated in the request letter, I need to clarify that I have never had any non-commencement of studies and I always hold student visa (subclass 573).  I studied the package course from Deakin University which includes English course, Diploma of Commerce, and Bachelor of Commerce.  Please be (sic) kindly find the following timeframe of activities explaining what I have been doing since I completed high school studies in June 2010 to current.

   10/01/2011 – 11/02/2011            English for Academic Purpose 1 (Intermediate 1)

   14/02/2011- 18/03/2011              English for Academic Purpose 2 (Intermediate 2)

   21/03/2011 – 22/04/2011            English for Academic Purpose (Intermediate 3)

   28/04/2011 - 03/06/2011             English (ELICOS) 5 weeks

   18/07/2011 – 15/02/2013            Diploma of Commence in MIBT

   28/02/2013 – 09/07/2015            Bachelor of Commerce in Deakin University

   I graduated from Deakin University in July 2015.  Between now and the commencement date of Diploma of Building and Construction (Building) in 2016, I have applied ten weeks English course for enhancing my English ability under suggestion from the course adviser.  Although I have studied in Australia for four years, but my English skills still need to be improved so that I can integrate into RMIT studies better.  Meanwhile, I plan to continue to receive the on-the-job training in S & L Plaster Logan Pty Ltd or other construction company no more than 20 hours per week if I have available time.  I increasingly feel that I need to pick up something I interested in, and this is the direction of my life.

   I have enrolled Diploma of Diploma of Building and Construction (Building) plus Bachelor of Applied Science (Construction Management) in RMIT.  This is quite different with that I have learned before, but from my perspective, this is the most correct choice to me in recent years.

   The principal reason why would like to undertake Building and Construction is that I have was been interested in it.  I was born and raised in a traditional family in China.  My major was always chosen by my parents in the past.  This is culture difference with families in Australian (sic).  I always listened my parents and did not let them disappointed, and I have gained Bachelor of Commerce.  At this time, they accept my choice to study Building and Construction because I will go back to China and work for my uncle’s Building Development Company after I will finish my study.  My uncle wants me to help his business.  Also, I really want to learn the course which I have passion on it (sic).

   I have learnt that RMIT is one of the largest providers of higher education in Victoria, and the construction courses they provided (sic) am very practical for international students.  So, I started to collect more information on this course and consult the agent regarding to the details.  Finally, I decided to study here.  In this program, I will examine the principles, techniques and regulations of the building and construction industry for all types of medium-rise and wide-span buildings.  In addition, this practical program incorporates hands-on work and project based learning.  I will experience many aspects of building projects and understand how these relate to each other.  This course will help me to increase my skills are building and construction, which is my personal interest.

   I will go back to my home country China and work with my uncle after I will finish my study.  My uncle runs a building development business in China.  In order to work at my uncle’s company, I need to have related qualifications.  What’s more, I choose to study in Australia rather than in my home country because the company requires the employee can speak fluent English.  I really want to learn more from RMIT in Australia…

   I study the building and construction knowledge in my spare time previously.  Particularly, from December 2014 to current, I has (sic) been working as on-the-job training of Plasterer…

   I plan to go back to China and work in my uncle’s Building Development Company after I will graduate from RMIT.  The relevance of the courses which I will study at RMIT will help me easily assist to my future career.  I feel so grateful that I can get a chance to study construction, which will be a brand-new beginning to me….  Also thanks to my parents’ support and encouragement to me, I will live up to their expectation for me and will be back after graduation and get my bachelor degree.  Then, I will take good care of them, reward them by my own ability.  The purpose of my study is simple and genuine, that is to learn the subjects that I loved, enhance my English skills and pursue a better career opportunity.  I believe that with more than half year on-the-job training background, I will learn this course very well.

8. The applicant appeared before the Tribunal on 7 August 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. The applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.  At the commencement of the hearing a number of documents were provided.  Where relevant these are considered below.  No written submissions were received prior to or at the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573.

12. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that 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)     …

13. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

14. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

15. The Tribunal has had regard to the following matters in considering whether it is satisfied that the applicant intends genuinely to stay in Australia temporarily.  It discussed with the applicant at the hearing a range of matters arising from Direction 53 and raised with him a number of issues and concerns arising on the evidence before it.

    The applicant is aged 25.  He first arrived in Australia in September 2010 aged 18 or 19 on a 573 visa to study a package of courses at Deakin University including a language course, a diploma and a bachelor’s course. The highest education he achieved in China was high school.  He did not work in China before coming to Australia.

    He enrolled to the Bachelor of Commerce because his family chose commerce for him.  He comes from a traditional family and he tried to make his parents happy but it was not his interest which he realised while doing the Diploma of Commerce. He always listens to his parents and he needed to understand his mum’s thinking.  He failed 6 of his diploma subjects before subsequently passing them.

    In the almost 7 years he has been in Australia he has successfully completed:

    ·10/01/2011 – 11/02/2011                   English for Academic Purpose 1 (Intermediate 1)

    ·14/02/2011- 18/03/2011  English for Academic Purpose 2 (Intermediate 2)

    ·4/07/2011 –22/02/2013  Diploma of Commence in MIBT

    ·28/02/2013 – 09/07/2015                  Bachelor of Commerce in Deakin University

    ·07/09/2015 – 27/11/2015                   General English – Elementary to Advanced

    He is currently studying a Diploma of Building and Construction at RMIT which he commenced on 8 February and which runs until 31 December 2017.  Although he has already failed 2 of the 4 subjects he plans to do a summer course to catch up.  The applicant wants to study this course and the Bachelor of Applied Science (Construction Management) because he did the Bachelor of Commerce to fulfill his mum’s wishes but now wants to pursue his interests.  He continued his study from the time he applied for his visa by doing another English course before the diploma started.

    Asked specifically what these two courses will allow him to do in China, the applicant said that two years ago his uncle started a building company in Shandong Province.  His uncle graduated in China with a civil engineering degree and has a licence to set up this building company which has already built some community housing blocks.  His uncle (his father’s brother) wants him to finish construction to help him.  He told him he needs him to at least finish his bachelors.  The company has 11 employees some of whom have construction backgrounds.  He first talked with his father when he finished his commerce degree and his father told him that his uncle had just started the construction business.  The applicant then phoned his uncle to ask if it was possible for him to get work in this business.  His uncle said yes; he does have a job for him.  The applicant first said this conversation was before he started at RMIT however, when questioned about the timeline, the applicant agreed he had enrolled at RMIT before he organised a job with his uncle and he phoned him sometime between September and November.  He could not say what position he has been offered or will assume in his uncle’s business saying he will start at a basic level and get or experience and will listen to his uncle.

    Asked what he intends to do on his return to China given he will have been away from his country for over ten years if he is able to complete both these courses, the applicant said he will marry his girlfriend who is studying a Masters of Accounting at Deakin University.  They met at high school and she came here two years ago.  They live together in Melbourne and his mum has bought them a house in China.

    Asked why he could not do both these courses in China the applicant responded that if he chooses courses in China he will be the same as other students who study there.  He conceded he did not investigate any similar courses in China saying it is better to finish here.

    The Tribunal asked the applicant why he wants to study construction in Australia and learn about Australian building codes and regulations if he is planning to work in construction in China.  He responded that he thinks he can use what he learns here in China and he can still learn from the knowledge.  His uncle already knows how to build according to Chinese law/way but he will be able to give him some extra support.

    The Tribunal asked the applicant about his assertion that his uncle requires him to be fluent in English noting he has now done four English courses, a diploma and a bachelor’s degree all instructed in English.  The applicant said he is not fluent and during his diploma and degree study he could catch key words and knew how to do the testing but cannot speak fluently.

    Asked how these courses would improve his remuneration and/or employment prospects in China or a third country the applicant said his uncle told him to finish his bachelor’s degree.  If he had gone back after his commerce degree he would have used his parent’s networks to find a job but he does not think his uncle would employ him after a commerce degree.  If he had to return to China now he would have to ask his parents and he would need to start again.  With his commerce degree he could not find a better job than with his uncle.

    Both his parents live in China.  His mother is an accountant with the Chinese Railways and his father is a senior manager with the Chinese Railways.  He has no siblings.  His only family in Australia is his cousin (who is also his migration agent).  He lives with his girlfriend in Melbourne.  Since arriving in Australia he has returned to China five times to see his parents and grandparents.

    In Australia he has been employed in furniture assembly for two months in 2011 and as a trainee plasterer from 2014 until 6 August 2015, although he was never paid for this work.  He does not work now as he needs to concentrate on his studies.  The applicant has no job offers at the present time although if offered a job in Australia would not take it because he has no time with his study workload.

    The applicant's original intention/plan in coming to Australia was to finish the bachelor’s and return to China.

    The applicant has $71,000 in savings in Australia which is money his parents gave him for his study.  His only asset is a car.  In China his parents have bought him one or two apartments and a house for when he marries.

    In relation his migration history the applicant explained that his Bachelor of Commerce was cancelled when he did not pay his fees as he did not have enough money so paid only half and asked his mother to send him some additional funds which she did by international transfer.  However he forgot to pay the second half of the tuition on time and this was his fault.

    Invited to comment on anything in the department decision, the applicant said he will be here for 10 years but if he had gone back after commerce he would have had no advantage over the others already there and he wants two bachelor degrees.  In responding to the delegate’s comment that he had “not provided evidence that [he] made a thorough investigation of [his] study options in…China”, the applicant said if he did it in China he would be on the same level as the others and he cannot do this in China as his uncle has a few employees educated in China so [he] needs someone different to optimize business in this way.

    If he has this opportunity he will finish as soon as possible and go back to China to help his uncle.  He is not working part time because he wants to focus on his studies.

16. The Tribunal asked the applicant if he wanted to highlight or discuss any of the matters he raised in his genuine temporary entrant criterion statement provided to the Department.  He said he did not study his Master of Commerce because that is not his interest and his parents agreed with him.  He could not do the Masters of Building Construction (which his parents wanted him to do) because he needs a bachelor’s degree first.  He did plastering because that is part of construction; he wanted to get inside construction.

1. The Tribunal noted at the hearing that it had sent the applicant a copy of Direction 53 with the hearing invitation and had specifically requested him to have regard to it in any submissions he provided and that it would be asking questions regarding the issues raised in Direction 53.  Given the opportunity to draw the Tribunal’s attention to other considerations contained in Direction 53 the applicant did not add or highlight any considerations not already discussed with him during the hearing other than to explain why he had to renew his English CoEs when he failed the English and diploma courses and he also failed the second term of his bachelor’s degree but after term 3 he did not fail anything in his commerce.  There is no additional, material consideration or claims relevant to the matters before the Tribunal and/or arising out of consideration of factors in Direction 53 other than matters canvassed at the hearings.

2. Following the hearing the applicant provided a letter purportedly from his uncle in China titled ‘Letter of Job Offer’ which relevantly states that the applicant has accepted the offer to work at Shandong Taifeng Urban Construction and Development Group Co Limited as a ‘Project Supervisor and Coordinator’ and states “[p]lease make certain that you need to obtain a Certification of Bachelor Degree (Major in Construction Management)”.  This letter is dated 8 August 2017.  Also provided following the hearing was a submission from the applicant’s representative which, in addition to reiterating much of the evidence already before the Tribunal, emphasised the reputation of Australian universities, that the applicant is planning to marry his girlfriend when she finishes her study in two years, his parents expect him to return to China with a successful academic achievement and that the applicant is a genuine temporary entrant who intends to return to China once he has completed his construction courses and he has a job offer from his uncle.

3. After carefully considering the applicant's evidence and the matters above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.  The applicant’s evidence repeatedly highlighted was that he only studied commerce at his parents’ suggestion and not to disappoint them but his passion and interest is to study construction which he has been fond of since he was young.

4. The applicant is aged 25 and came to Australia in September 2110 when he was aged 18.  At the time of this decision he has been in Australia for almost eight years and is seeking a student visa to complete courses which will extend to him being in Australia for over ten years; a period of time the Tribunal considers to be extremely lengthy to stay in another country and defer the commencement of his working career given his evidence that he intends to return to China to settle and work.

5. The Tribunal acknowledges that the applicant has completed three English courses and a Diploma and Bachelor of Commerce however considers his evidence about why he wants to now also study construction to be unpersuasive and contradictory and that he is pursuing these construction courses with a view to maintaining ongoing residence in Australia and staying with his girlfriend who is also in Australia on a student visa.

6. In arriving at this view the Tribunal notes that applicant’s oral evidence that he enrolled in a package of construction courses at RMIT in 2015 and commenced his Diploma of Building and Construction on 8 February 2016 because his uncle wanted him to finish his bachelors before taking up a job offer with his building company in Shandong Province.  However when questioned about the timing the applicant agreed that he had enrolled at RMIT before he organised a job with his uncle and he phoned him sometime between September and November in 2015.  Further, the applicant, although predicating his future studies in Australia on the offer of employment with his uncle’s building company, could not tell the Tribunal what position he had been or would be offered or what position he would assume in his uncle’s business saying he will start at a basic level and get experience and will listen to his uncle.  When asked how these courses would improve his remuneration and/or employment prospects in China or a third country the applicant said his uncle told him to finish his bachelor’s degree although, as he had earlier conceded in the hearing, he did not speak with his uncle about possible employment until after he had enrolled in this package of courses.  Finally, the applicant could not explain, to the Tribunal’s satisfaction, why he would undertake a building/construction degree in Australia and learn about Australian building codes and regulations if he is planning to work in construction in China with the applicant only saying that “he thinks” he can use what he learns here in China, he can still learn from the knowledge and, as his uncle already knows how to build according to Chinese law/way, he will be able to give him some extra support.

7. For these reasons the Tribunal places no weigh on a letter from his uncle dated the day after the hearing stating that the applicant had accepted the position of ‘Project Supervisor and Coordinator’ at his company; a position the applicant could not identify the previous day at the hearing.  In any case, the Tribunal maintains concerns about job offers from family members especially one that specifies “p]lease make certain that you need to obtain a Certification of Bachelor Degree (Major in Construction Management)” which happens to be the course in which the applicant had enrolled before he even spoke to his uncle about a job.

8. Further, the applicant could provide no cogent reason why, after six years Australia and having already completed two English courses and a diploma and degree in commerce, he could not complete a Bachelor of Construction and/or Building somewhere in China  The applicant conceded that he did not investigate any similar courses in China saying it is better to finish here and that if he did it in China “he will be the same as other students who study there”, he would have no advantage over others already there and that he chose to study in Australia rather than China because “the company requires the employee can speak fluent English” although the Tribunal notes again that the applicant enrolled in this package of courses before he spoke to his uncle so could not have then known that the company requires employees who can speak fluent English.  The Tribunal does not consider that the applicant’s claimed voluntary work as a plasterer strengthens his claim to be a genuine temporary entrant as a student in the Bachelor of Applied Science (Construction Management).

9. In weighing the applicant’s circumstances in China and Australia the Tribunal accepts that he is the only son of his parents who both live in China however his evidence is that he lives in Australia with his girlfriend who he has known since their school days together in China and that his cousin also lives here.  The Tribunal also notes the applicant’s evidence that his parents have bought him and his girlfriend a house in China so that they can live there together when they marry and that they have also bought him one or two apartments, however no documentary evidence of this has been provided.  The Tribunal also notes the representative’s assertions that the applicant is planning to marry his girlfriend when she finishes her study and that his parents expect him to return to China with a successful academic achievement.  However, in the now almost 8 years the applicant has been in Australia, he has managed to maintain his relationship with his parents and grandparents from a life lived in Australia and now proposes yet a further stay in Australia.  On the evidence, the Tribunal does not find the applicant’s circumstances and connections in China offer him significant inducement to make his stay in Australia a temporary stay.

10. In relation to his visa and study history the Tribunal notes that the primary decision records that the applicant has had four previous CoEs cancelled due to non-commencement.  When invited to comment on this the applicant said that his Bachelor of Commerce was cancelled when he did not pay his fees and he forgot to pay the second half of the tuition on time and this was his fault.  The Tribunal considers that, notwithstanding the applicant eventually completed these courses, the fact that that he took five years to do so, weighs against him satisfactorily completing his further proposed courses in the timeline set out in his CoEs.

11. While the Tribunal accepts that Australian qualifications may be highly valued and regarded in China the applicant has completed three English courses and a diploma and degree in commerce.  Further, as the applicant had already started his Diploma of Building and Construction at RMIT at the time of the hearing, the Tribunal has delayed finalising this case to enable the applicant to complete it and allowed some additional time given the applicant’s evidence that he had failed 2 of his first 4 subjects so that he could repeat these if necessary.  Therfore the applicant already has the benefit of the reputation of at least five Australian qualifications and potentially six if he has completed his Diploma of Building and Construction.  Finally, the Tribunal observes that while additional qualifications may provide more opportunities in China, it finds his evidence of promised future employment pending his completion of a Bachelor of Construction Management to be unreliable.  It also notes the applicant’s evidence that had he returned to China after completing his Bachelor of Commerce, he would have used his parents’ networks to find a job.

12. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.573.223(1)(a).

13. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Karen Synon
    Member