Pang (Migration)

[2019] AATA 5694

Pang (Migration) [2019] AATA 5694 (28 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Dongmei Pang
Ms Surui Dong

CASE NUMBER:  1832954

DIBP REFERENCE(S):  BCC2018/3325501

MEMBER:Roger Maguire

DATE:28 November 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) Subclass 590 visas.

Statement made on 28 November 2019 at 2:20pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 590 (Student Guardian) –first applicant mother’s visa as guardian for oldest child – second applicant youngest child not turned 6 – compelling and compassionate reasons required for grant of visa – older children’s health poor health because of environmental pollution in China – better health in Australia – children’s education and life in Australia – youngest child born in Australia – birth not reported to Department of Immigration – family planning regulations in China – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 590.213, 590.311

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 on 19 October 2018 to refuse to grant the visa applicants a Student (Temporary) (Class TU) Subclass 590 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 3 September 2018. The delegate refused to grant the visas on the basis that the delegate was not satisfied that clauses 590.213 and 590.311 in Schedule 2 to the Migration Regulations were satisfied.

3. The applicants appeared before the Tribunal on 21 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband Mr Dong Chunyang and a family friend Ms Jie Zhu.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were assisted in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 590 (Student Guardian) visa are set out in Part 590 of Schedule 2 to the Migration Regulations 1994. The relevant provision for present purposes is cl.590.213. If any member of the family unit has not turned six, cl.590.213(a) requires the applicant to establish compelling and compassionate circumstances for the grant of the visa.

8. Clause 590.213 requires as follows:

   If any member of the family unit of the applicant has not turned 6:

   (a)   The applicant has established compelling and compassionate reasons for the grant of a the visa; or

   (b)   The applicant satisfied the requirements of subclause 590.211(4).

9. The applicants based their application on cl.590.213(a), and did not seek to rely upon cl.590.213(b).

10. In circumstances where a member of the family unit has not turned six years of age, cl.590.213(a) requires the applicant to establish compelling and compassionate circumstances for the grant of the visa.

11. In this review, the second named applicant has not turned six years of age.

12. The issue in the present case is whether there are compelling and compassionate reasons for the grant of the visas as required by cl.590.213(a).

    Evidence at hearing

13. The Tribunal heard evidence from the primary applicant but did not take evidence from the infant applicant. References to “the applicant” which follow, unless the context otherwise indicates, are to the primary applicant, the mother of the infant applicant.

14. The applicant confirmed that everything sent to the Tribunal on her behalf was in accordance with her instructions and was true and correct as at the hearing date, and there was nothing she wished to alter in any way.

15. The applicant confirmed that she had read the decision under review, and understood it.

16. The applicant was asked to provide evidence of compassionate and compelling circumstances.

17. The applicant said her second eldest child has been sick frequently in her home country due to the environment. There had been recurrent respiratory infections, and that in this warm environment there has been no recurrence and there has been no pneumonia.

18. The applicant added that the quality of education here is good and in China it is completely different and she is concerned about the children’s self-confidence being effected when they get return to China, and that they will be effected psychologically as well.  The applicant was asked if she had an opinion from a psychologist or a psychiatrist which supported her statements. The applicant did not have such an opinion, and confirmed that she was expressing her own opinion.

19. The applicant said that she had not initially told her son about the visa refusal, she has concern about the impact on his study and he is very nervous about it and concerned about his academic performance when he goes back.

20. The applicant said that besides the impact on study, there is also impact from environment on physical health. The baby has not been exposed to pollutants in her home country, and she is concerned that she may not stand it physically. The applicant confirmed that this was her opinion and not a medical one.

21. Besides the physical health aspect, the applicant said she was concerned about her older children’s academic performance in China. The applicant stated that the children have been here for three years and like it a lot and have strong interests, and if they go back they will have to find a new school and waste some of their study time. The applicant said that as a mother she has focus on her children’s education and she hopes that they can have a good future and progress academically.

22. The applicant stated that she found that after coming here for 3 years, the children have a lot stronger interest in their academic work and extra-curricular activities unlike in China where there is a lot of homework, and they do not have time to do anything. The applicant said that education in Australia stimulates children’s interests and uncovers their potential and this is very important.

23. The applicant said that her husband has been running his business very successfully and they do not have any financial issues caring for the children in Australia.

24. The applicant is concerned if they return to China, her relatives may think they have made mistakes in Australia or have been discriminated against and they would be unable to hold their heads up.

25. The applicant said that her third child, she was an unexpected pregnancy, and she felt that they could afford it financially so she decided to give birth to the baby. The applicant said that she did not report it to the Department of Immigration at the time and she did not know that much and assumed that the baby would get the same visa that she had. The applicant said that as a mother she cannot accept or tolerate the impact on her children’s academic work. The applicant said that there is significant impact on the children’s psychological health, and she believed that the AAT is an independent entity.

26. The applicant’s husband Mr Dong Chunyang gave evidence before the Tribunal.

27. Mr Dong said in 2016, he and his wife travelled to Australia for the first time as a family of four, and they really liked Brisbane. He stated that he has an import business, and he deals with US counterparts, he likes western culture, and he has made a decision to let his children receive western education and to go to school here.  Mr Dong stated that there is another important reason for remaining as his home town Jinan, is famous for its air pollution in the world, and is among the most polluted cities in China, and that sometimes it ranks first in terms of pollution in China.

28. Mr Dong stated that two years prior to going overseas the daughter Airui was hospitalised with pneumonia, and due to this, he and his wife decided to send the children to Australia to study.  Since early 2017, it has been almost three years Airui has had no recurrence of her respiratory infection or any adverse effect of air pollution.

29. Mr Dong also stated that in terms of study and life here, the children are accustomed to life in Australia, and really like it and have made a lot of friends, and their academic performance is good. The baby’s birth was unplanned, but they did not want abortion. In China, only two children are allowed in a family and a third child is not allowed. Mr Dong stated that the consequence of having a third child is that there are harsh penalties, and he had signed a family planning guarantee. Specifically the penalty is three to ten times their combined income. For the first child the penalty is two to three times their combined annual income.

30. Mr Dong said that he needed to sign the guarantee when he registered his company, to the effect that he would adhere to the government’s child policy which at that stage allowed one child but has since been amended to allow two. He continued that last month there was a significant incident in Guangdong province where a male police officer and his school teacher wife had a third child. Due to the third child they were both removed from their positions.

31. Mr Dong said that he would not lose his business, but he would be punished financially, but his business will continue. Mr Dong said that the visa refusal has impacted on his children, and there has been dramatic change with Ruiche after hearing the news, and he is having sleep issues and tummy pains and had dizziness, and was taken to a clinic for that. The children do not want to go to China. They want to continue their study here, and do not want to stay with a home-stay family. Mr Dong said the child is also anxious because of school differences, and he will be half a year late and it will be difficult for him to keep up with his peers.

32. He concluded by saying that taking into account the children’s health and academic work, he hopes that they can stay here and study.

33. Ms Jie Zhu also gave evidence and said that her child attends the same school as the applicant’s children, and they live in the same street, and she is familiar with the children and they are family friends.

34. Ms Zhu said they have been together for almost three years and the older children are very good at their academic work, and receive awards. They are used to life here and their academic performance is excellent. She often visits their homes and observes that the applicant takes good care of her children in terms of their daily life and study. 

35. The applicant was asked if there was anything further she wished to say to the Tribunal, and said that her children have a very good sibling relationship, and they cannot be separated from each other. She had experience as a home stay student and understands the feeling of staying under another person’s roof, and that is the major reason she is here to accompany her children to see them grow and study.

36. At the conclusion of the hearing, the Tribunal invited the applicant to provide an English translation of a newspaper article which spoke of the a Police officer and his primary school teacher wife both being dismissed from their jobs because of an extra birth, and allowed extra time for its delivery.  The Tribunal has read and considered that article.

37. The Tribunal found all of the witnesses to be credible and truthful, and accepts their evidence as given. The Tribunal has considered the written submissions delivered on behalf of the applicants.

38. The Tribunal notes that the visas the subject of these applications are temporary visas, and that sooner or later, the issues of environmental health risks in China, and China’s family planning policy were always going to have to be addressed by the applicant and her husband on their return to China. Mr Dong has stated that he would not lose his business over this issue.

39. The Tribunal accepts that should the applicant’s children return to China to complete their schooling it will not be a happy process, and that there may be some disruption to their schooling.

40. The applicant and her husband impressed the Tribunal as being very decent people trying hard to provide the best for their children’s future.

41. Nevertheless, the Tribunal has considered all the evidence provided both to the Department and to the Tribunal, but is not satisfied the applicant has demonstrated compelling and compassionate circumstances for the grant of the visas. 

42. The applicant was provided no evidence that the grant of the visa will significantly benefit the relationship between the government of Australia and the government of another country as required to satisfy cl.590.211(4).

43. For these reasons, the applicant does not meet cl.590.213.  Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 590 (Student Guardian) visa are not met.  Accordingly the decision under review must be affirmed.

    Applicant Surui Dong

44. In order for a visa to be granted to the above named applicant, clause 590.311 in Schedule 2 of the Migration Regulations must be satisfied. That clause provides that:

    590.311

    The applicant is a member of a family unit of a person who satisfies the primary criteria in Division 590.2.

45. As the primary applicant failed to satisfy the primary requirements for the grant of this Student Guardian visa, the above named applicant does not satisfy clause 590.311.

46. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 590 (Student Guardian) visa are not met.  Accordingly the decision under review must be affirmed.

    DECISION

47. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) Subclass 590 visas.

    Roger Maguire
    Member