Qi (Migration)

[2018] AATA 5594

Qi (Migration) [2018] AATA 5594 (25 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhenhuan Qi

CASE NUMBER:  1714203

HOME AFFAIRS REFERENCE(S):           BCC2017/1007056

MEMBER:Stephen Witts

DATE:25 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 25 October 2018 at 12:37pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine applicant for entry and stay as student – remain enrolled in approved course – achieve satisfactory attendance and progress – applicants record of compliance – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359AA, 359(2), 499
Migration Regulations 1994, 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 13 June 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 14 March 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 genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 25 October 2018 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 matter should be remitted for re consideration.

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 genuinely intends to stay in Australia temporarily.

   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. At the hearing the Tribunal had a discussion with the applicant regarding the issues for consideration outlined in Ministerial Direction 69.

    Background

11. According to the delegate’s decision record, provided to the Tribunal by the applicant, the applicant was granted his initial Student visa (subclass 573) on 2 July 2013 valid until 15 March 2017. The applicant subsequently arrived in Australia from China on 25 July 2013.

12. According to the delegate’s decision record the applicant arrived on a student visa subject to conditions 8516 (continue to be a person who would satisfy the primary condition for the grant of the visa) and 8202 (remained enrolled and achieve satisfactory course attendance and progress). According to the delegate the applicant was in breach of his subclass 573 visa as he failed to maintain enrolment in a higher education sector course.

13. According to the delegate’s decision record the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa on 14 March 2017. This application was rejected by the delegate on 13 June 2017.

14. According to the applicant’s evidence he is currently enrolled in a Bachelor of Business (Marketing) which began on 21 March 2016 and was initially due for completion in December 2018.

15. According to the applicant’s evidence, and to the applicant’s PRISMS record (reviewed with the applicant in accordance with s.359AA) the applicant has been enrolled in the following courses since his arrival here in 2013:

    a)Monash English (5 to 70 weeks) finished in May 2014

    b)Monash English Bridging (5 to 20 weeks) finished in February 2014

    c)a Diploma of Business cancelled in 2014

    d)a Bachelor of Business (Banking and Finance) cancelled in February 2015

16. The applicant completed his high school level education in June 2012 and then studied an English Foundation Program until March 2013.

17. There is no relevant evidence regarding the following factors indicated by Ministerial Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, political circumstances in the home country, civil unrest in the home country, and the applicant’s circumstances in the home country relative to others in that country.

18. The applicant is renting here in Melbourne and has returned home to China on one occasion to visit family and has not travelled anywhere else outside Australia

19. Adopting the procedure of the act 359AA the Tribunal reviewed the applicant’s study history with him paying particular regard to the applicant’s PRISMS record. The Tribunal asked the applicant if he wished for some time to consider this record prior to having a discussion with the Tribunal.

20. The applicant did not ask for an adjournment and the Tribunal discussed the applicant’s study history with him.

21. The Tribunal asked the applicant to provide evidence that he was still studying his Bachelor of Business (Marketing) which began on 21 March 2016 and that he was still due to complete his course in December this year. The applicant provided evidence that he was still successfully studying his bachelor level course here but that as he had failed one subject his course was now due to complete in June 2019.

22. The Tribunal asked the applicant to confirm whether in fact he was not enrolled, as contended by the delegate, between the completion of his Monash English on 23 May 2014 and his commencement of his bachelor level course on 21 March 2016. The applicant confirmed that he was not enrolled to study during this period but that he had been having psychological and health issues due to some relationship problems within his family. The applicant stated that he was now on course to successfully complete a bachelor level course here and that he would return home to his home country upon his completion of his course in mid-2019.

23. The applicant in his statement to the delegate (delegates file folio 17) stated that he is studying his Bachelor of Business (Marketing) as it would be easier for him to find a job back in his home country with this qualification. He provided evidence that this stream of business, with a specialisation in marketing, is a more practical course of study then only doing a Bachelor of Business.

24. The applicant in his s.359(2) questionnaire Q15 (AAT file folio 25) stated that:

    “I want to look for a marketing job in Beijing when I finished a bachelor course”

25. The Tribunal is mindful that the applicant is now successfully studying his Bachelor of Business (Marketing) and that he has provided evidence of his ongoing enrolment and that he will successfully complete this course in mid-2019. The Tribunal is concerned that the applicant did not study appropriately between May 2014 and March 2016 but accepts the applicant’s evidence that he is now successfully studying at bachelor level and will complete his course over the next few months.

26. The applicant provided evidence that his stay here was temporary and he gave a commitment that he would return home upon the successful completion of his bachelor level course and the Tribunal accepts the applicant’s evidence that he will return home in June 2019.

27. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.500.212(a).

    Conclusion on cl.500.212

28. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

29. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

30. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Stephen Witts
    Member