Qing (Migration)

[2022] AATA 4297

Qing (Migration) [2022] AATA 4297 (8 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kendrick Kerk Qing Bong

REPRESENTATIVE:  Ms Thanh Mai-Hang Nguyen  (MARN: 1802335)

CASE NUMBER:  2114150

HOME AFFAIRS REFERENCE(S):          BCC2020/2722263

MEMBER:David Barker

DATE:8 September 2022

PLACE OF DECISION:  Sydney

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

Statement made on 08 September 2022 at 3:12pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – affected by a ‘risk factor’ – left Australia as holder of a bridging visa – migration history – three years exclusion period – waiver of requirement – compelling or compassionate circumstances – employment as a software developer – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217; Schedule 4, PIC 4014

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 6 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 27 November 2020. 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 500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the departure of the applicant on 6 March 2019, as the holder of a Bridging E visa, which was granted more than 28 days after the expiry of the applicant’s previous substantive visa, a Subclass 500 Student visa, ceased on 23 December 2018. The delegate found that as a consequence of the applicant’s departure under these circumstances, he did not meet Public Interest (PIC) 4014, which in turn meant the requirements of cl 500.217 were not satisfied.

4. The applicant appeared before the Tribunal on 6 September 2022 by teleconference to give evidence and present arguments.

5. The applicant’s identified representative did not participate in the 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 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 meets PIC 4014 and consequently satisfies cl 500.217.

8. Clause 500.217 of Schedule 2 to the Regulations provides that:

   500.217

   (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.

   (2) If the applicant has not turned 18, public interest criteria 4012A, 4017 and 4018 are satisfied in relation to the applicant.

   (3) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

   (4) The applicant (other than a Foreign Affairs student or a Defence Student) satisfies public interest criterion 4005.

   (5) The applicant, being a Foreign Affairs student or a Defence Student, satisfies public interest criterion 4007.

9. Clause 4014 of the PIC (public interest criterion) set out in Schedule 4 to the Regulations states:

   (1)If the applicant is affected by the risk factor specified in subclause (4):

   (a)  the application is made more than 3 years after the departure of the person from Australia referred to in that subclause; or

   (b)  the Minister is 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 of the visa within 3 years after the departure.

   (4)      Subject to subclause (5), a person is affected by a risk factor if the person left Australia as:

   (a)     an unlawful non-citizen; or

   (b)  the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa.

   (5)      Subclause (4) does not to apply to a person if:

   (a)  the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect; or

   (b)     a bridging visa held by the person at the time of departure was granted:

   (i)       within 28 days after a substantive visa held by the person ceased to be in effect; or

   (ii)      while the person held another bridging visa granted:

   (A)     while the person held a substantive visa; or

   (B)  within 28 days after a substantive visa held by the person ceased to be in effect.

10. Broadly speaking, PIC 4014 defines particular circumstances where an applicant is affected by a relevant ‘risk factor’. PIC 4014(4) provides a person is affected by a ‘risk factor’ for the purposes of PIC 4014 if they left Australia as an unlawful non-citizen or as the holder of a Bridging C, Bridging D or Bridging E visa, subject to the exceptions in PIC 4014(5), none of which on the applicant’s evidence apply in the present case.   

11. Where a person is affected by a ‘risk factor’ as defined in PIC 4014(4), they are required to satisfy one of two alternate criteria set out in PIC 4014(1) to meet the requirements of PIC 4014.

12. PIC 4014(1)(a) requires, as a first alternative, that the visa application has been made more than 3 years after the date the person departed Australia. Alternatively, PIC 4014(1)(b) requires that the decision maker is satisfied that, in the particular case, there are compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, which justify granting the visa within three years after the person’s departure from Australia.

    Circumstances of the applicant

13. The applicant is a national of Malaysia and is 25 years of age.

14. The decision record of the delegate of the Department of Home Affairs (hereafter referred to as the decision record), a copy of which was provided to the Tribunal by the applicant, indicates that the applicant held Electronic Travel Authority (Visitor) (subclass 976) visas from 11 July 2005 to 11 July 2006, from 15 September 2007 to 15 September 2008, and from 27 June 2010 to 16 June 2011. He was granted a Student (subclass 571) School sector visa on 16 June 2011, which expired on 19 December 2013. The applicant was then granted a Student (subclass 573) Higher Education sector visa on 29 January 2014, which expired on 2 August 2018. The applicant applied onshore for a Student (subclass 500) Higher Education sector visa on 26 July 2018, which was granted on 2 August 2018 until 23 December 2018. The applicant then applied for a Graduate Work Stream (subclass 485) visa on 20 December 2018 and was granted an associated Bridging Visa A (BVA) on 20 December 2018. The application was withdrawn on 22 January 2019 and the associated BVA ceased on 26 February 2019. The applicant attended a Departmental office on 28 February 2019 regarding their visa status and was granted a Bridging Visa E (BVE), which was valid until 14 March 2019. The applicant lodged a Visitor (subclass 600) visa on 3 March 2019 and was granted an associated BVE on 5 March 2019. He then departed Australia on 6 March 2019 and subsequently, withdrew the Visitor visa application on 26 March 2019.

15. The applicant lodged an offshore Student (subclass 500) Higher Education sector visa on 8 March 2019, which was granted from 15 March 2019 until 30 May 2019.[1] The applicant returned to Australia on 16 March 2019 and applied for a Graduate Work Stream (subclass 485) visa on 29 March 2019, which was subsequently granted from 30 May 2019 until 30 November 2020.

    [1] based on PIC 4014 having been assessed as satisfied by the Department decision maker who processed that visa application.

16. At hearing, the applicant was straightforward and genuine in the manner in which he gave his evidence. The Tribunal was satisfied he could be regarded as a witness of truth.  With respect to his migration history, he provided the following information:

    ·He has relied on advice from migration or education agents in relation to visa issues since he first came to Australia to study;

    ·Around the time he was completing his undergraduate Food Science and Technology degree he did not pay close attention to his visa and it came by surprise when he received a notice from the Department informing him that his Student visa was about to cease;

    ·He sought advice and lodged an application for the Graduate Work Stream (subclass 485) visa, as he had secured work in that professional vocational area but unfortunately, at that time, food technology was not identified on the list of skills shortages which allowed a person to get the Graduate Work Stream (subclass 485) visa;

    ·He looked into his options and when it was apparent he had no viable alternative, he returned to Malaysia. However, as it is very difficult to get a good job there, he remained motivated to return to Australia and establish a career here.  He thought it would be sensible to further his skills in software development and information technology fields, so applied and was granted a Student visa which permitted him to return to Australia and skill up in these vocational areas. He completed a Master of Commerce degree in December 2020.

    ·He is not studying at the current time, as his wish is to consolidate a career, rather than retrain or further develop his qualifications at the present time[2].

    ·He is currently employed as a software developer for an Australian company which develops educational applications.  It is a good job, and the applicant thinks that by working there he is  not only benefiting himself, but also making a positive contribution to Australian society and the Australian economy.  There are around 300 employees and around 60 other software developers.

    ·Since the PIC 4014 exclusion period ceased in March 2020, he has applied for skilled work visas which, if granted, will provide him with pathways to permanent residency. 

    [2] The Tribunal informed the applicant that the information he provided was consistent with that recorded on the records of his academic study in Australia which the Tribunal has access to – PRISMS record.

    Is the applicant affected by a ‘risk factor’ for the purposes of PIC 4014?

17. The applicant confirmed the accuracy of his migration history as discussed in the delegate’s decision record.

18. Submissions to the Department from the applicant’s representative, dated 22 February 2021, submit that the applicant meets the criteria stated in PIC 4014(5)(b)(ii)(A), namely that a Bridging visa held by the person at the time of departure was granted while the person held another bridging visa granted within 28 days after a substantive visa held by the person ceased to be in effect. It was submitted that this was the case as the applicant previously applied for a Graduate Work Stream (subclass 485) visa on the 20 Dec 2018. It was submitted that although the applicant left Australia on 6 Mar 2019 while holding a Bridging E visa, his Bridging E visa was granted while he held a Bridging visa A and that Bridging visa A was granted while he had a student visa i.e. a substantive visa — thereby satisfying PIC 4014(5)(b)(ii)(A).

19. It is not disputed that the subclass 500 Student visa, which expired on 23 December 2018, was the last substantive visa held by the applicant prior to his departure from Australia on 6 March 2019.

20. The applicant departed Australia on 6 March 2019 as the holder of a Bridging E visa. This Bridging visa E was either granted to the applicant on 28 February 2019 [visa grant no: 0079568993513] or 5 March 2019 [visa grant no: 0079542759826][3]. Either way, this was at least two days after the Bridging visa A upon which the submissions provided to the Department rely [visa grant no: 0049585084230], which came into effect on 20 December 2018, ceased on 26 February 2019. Accordingly, the tribunal is not satisfied the criteria in PIC 4014(5)(b)(ii)(A) is met.

    [3] Both Bridging vis E’s ceased on 6 March 2019, the date on which the applicant departed Australia.

21. As the Bridging E visa held by the applicant at the time of departure on 6 March 2019 was granted more than 28 days after the expiry of the applicant’s previous substantive visa the tribunal is not satisfied the criteria in PIC 4014(5)(b)(ii)(B) is met and as a result of these cumulative findings, the Tribunal finds the applicant is affected by a ‘risk factor’ for the purposes of PIC 4014(4).

22. An unusual aspect of this case is that it would appear decision makers within the Department assessed PIC 4014 as being satisfied in relation to the Subclass 500 Student granted from 15 March 2019 until 30 May 2019 and the Subclass 485 Graduate Work Stream) visa, which was subsequently granted from 30 May 2019 until 30 November 2020. These are however, not the decisions under review in the current matter and the Tribunal does not perceive they relevantly impact on the consideration as to whether the provisions of PIC 4014 apply to cl 500.217 in relation to the Subclass 500 Student visa application lodged on 27 November 2020.

    Was the application for the visa made more than 3 years after the departure of the applicant from Australia referred to in subclause 4014(4)?

23. Based on the applicant’s evidence to the Tribunal, the Tribunal finds the applicant departed Australia on 6 March 2019 as the holder of a Bridging E visa and then applied for the visa that is the subject of this review on 27 November 2020.

24. The Tribunal finds that the application for the visa is not made more than three years after the relevant departure of the applicant from Australia.

25. For the above reasons, the Tribunal finds that the applicant does not meet the requirements of PIC 4014(1)(a).

26. A feature of this case is that the three year exclusion period, imposed as a consequence of the delegate’s decision to refuse the application under the provisions of PIC 4014, has now passed, having ceased on 6 March 2022. The Tribunal’s view is that this does not mitigate the effect of the risk factor as PIC 4014(1)(a) establishes that if an applicant applies for another visa at any time before the date that is three years after the date on which they departed Australia whilst affected by a risk factor specified in subclause (4), then the applicant does not meet PIC 4014(1)(a).

    Waiver of the requirements of PIC 4014

27. In ascertaining whether the requirements of PIC 4014 may be waived, there needs to be either compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen justifying granting the visa within the prescribed 3‑year period.

28. There are no definitions of compelling or compassionate circumstances in the Act or Regulations, and there is limited judicial consideration of this provision in the context of PIC 4014. Whether a circumstance or reason is compelling and/or compassionate is a question of fact and degree for the Tribunal to consider.

29. Departmental policy provides some guidance on what may amount to compelling or compassionate circumstances, while making it clear that whether there are compelling or compassionate circumstances depends on the circumstances of the individual case.[4] Whilst not binding, the Tribunal may have regard to the Department’s interpretation and examples of what may constitute compelling or compassionate circumstances. However, the Tribunal is mindful that it should avoid elevating any such interpretation to a statutory requirement and should always bring its consideration back to the words of the provision in PIC 4014(1)(b) and consider the individual circumstances of the case.

    [4] Policy - Migration Act - Visa cancellation instructions - Exclusion periods - Assessing and deciding visa applications - Grounds for exercising discretion (reissued 01/07/2020).

    Compelling circumstances affecting the interests of Australia

30. In assessing if the applicant has compelling circumstances affecting the interests of Australia, under policy, there may be compelling circumstances affecting the interests of Australia if:

    ·Australia’s trade or business opportunities would be adversely affected if the person was not granted the visa;

    ·Australia’s relationship with a foreign government would be damaged if the person was not granted the visa; or

    ·Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.

31. With regard to whether there are compelling circumstances affecting the interests of Australia which would justify granting the visa, the applicant gave evidence at hearing that he considers the employment he has as a software developer to be important and valued by his employer, he noted however that he is one of around 60 software developers employed by the Australian business he works for and that he is unsure if his contribution is such that it impacts Australia’s interests.  

32. The Tribunal is aware of and discussed with the applicant the current shortage of skilled workers in Australia at the present time. However, the Tribunal is not satisfied that this factor, or other circumstances described by the applicant, constitute compelling circumstances affecting the interests of Australia such that it would justify the exercise of the discretion to grant the visa.

    Compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen

33. In assessing if there are compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, under policy, there may be compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen if the applicant was not granted the visa because:

    ·A business operated by an Australian citizen would have to close down because it lacked the specialist skills required to carry out the business;

    ·Civil proceedings instigated by an Australian permanent resident would be jeopardised by the absence of the non-citizen witness; or

    ·An eligible New Zealand citizen would be unable to finalise legal and property matters associated with divorce proceedings without the physical presence of the non‑citizen in Australia.

34. In assessing if there are compassionate circumstances, under policy, there may be compassionate circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the person was not granted the visa because:

    ·Family members in Australia would be left without financial or emotional support;

    ·Family members in Australia would be unable to properly arrange a relative’s funeral in Australia; or

    ·A parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and is therefore subject to an exclusion period).

1. With regard to whether there are compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, the applicant indicated at hearing that beyond the impact of his leaving employment with his current employers, who he understands to be Australian citizens, he cannot think of how an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen would be adversely impacted if he was not to be granted the visa. He indicated that he was at one stage in a relationship with someone who is an Australian citizen, but that relationship ceased and he now has a girlfriend who holds a temporary visa.  With regard to the impact of his potential departure from Australia on his current employer, the applicant indicated he did not think he had a vital position in the business such that there would be a risk the business would need to shut down, or would otherwise be seriously impacted if he could no longer work there.   When discussing his study history, the applicant indicated that his decision to not be enrolled in a course at the present time reflects his wish to be able to work in a full time professional role. The applicant further indicated that enrolling in a course would therefore incur unnecessary expense and also not honestly reflect his current aspirations.

   Conclusion

2. In the circumstances, the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia or that there are compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. As a consequence of this and the other findings it has made, the Tribunal is not satisfied the applicant meets PIC 4014.

3. Accordingly, as the Tribunal is not satisfied that the applicant meets PIC 4014, then it is not satisfied that the applicant meets cl 500.217 of Schedule 2 to the Regulations.

4. 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.

5. Having reached what it perceives to be the legally correct decision, the Tribunal would nonetheless reiterate that the applicant presented at hearing in a straightforward, open and honest manner.  The Tribunal is satisfied that the applicant has at no stage sought to misrepresent his circumstances, or manipulate Australian visa provisions. The Tribunal is satisfied that the applicant genuinely wishes to remain in Australia for the purpose of working in roles commensurate with the tertiary qualifications and skills that he has acquired and  thathe perceives this would be to the benefit of himself, but also to Australia.

   DECISION

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

   David Barker
   Member