SHANG (Migration)

[2017] AATA 2404

SHANG (Migration) [2017] AATA 2404 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jiaming SHANG

CASE NUMBER:  1609121

DIBP REFERENCE(S):  BCC2016/773357

MEMBER:Mark Bishop

DATE:13 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 13 November 2017 at 7:43am

CATCHWORDS
Migration  – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Significant personal ties of family and community in home country – Record of a poor student – Lack of proof of attendance in educational institutions – Amount of time in Australia

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, 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 24 February 2016. The delegate decided to refuse to grant the visa on 1 June 2016. 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. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied the applicant intended to genuinely stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 2 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant also called a witness.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. 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)     …

8. 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.

9. 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.

10. The applicant provided a copy of the decision record to the Tribunal.

11. The Tribunal wrote to the applicant on 17 October 2017 requesting the applicant provide the following information (1) A copy of a current Certificate of Enrolment (COE) (2) Documents that showed the applicant was currently enrolled in a course (3) Documents that show past studies in Australia, attendance certificates, academic transcripts and certificates of completion and (4) An explanation of any gaps in enrolments and relevant documentary evidence.

12. The applicant provided a copy of a COE for enrolment in a Foundation Studies course at RMIT in 2015, copies of a COE for enrolment in a Diploma of Commerce at RMIT for the years 2016 and 2017 and a conditional letter of offer from RMIT for admission to a Bachelor of Commerce commencing February 2018 and concluding November 2019.

13. The applicant provided a document headed Academic history – course list in the name of Jiaming Shang with his University ID Number for a Diploma of Commerce Undergraduate for Semester 1 and 2, 2017. This letter document was not on letterhead and did not show any sign of being an official document from RMIT.

14. The applicant provided a lengthy personal statement which addressed GTE criterion. The applicant had previously provided a GTE statement to the Department on 12 April 2016.

15. Apart from the material outlined above the applicant did not provide any certificates of completion or graduation, statements of course progress, attendance certificates or transcripts of subjects studied and passed for either his Foundation Studies Business Stream course or his Diploma of Commerce.

16. This deficiency concerning the lack of transcript for subjects studied in the Foundation Studies Business Stream and Diploma of Commerce were later remedied.

17. The Tribunal had regard to all of this material.

18. The applicant has been in Australia for almost 8 years since January 2010. He completed his last 3 years of secondary education in Melbourne and successfully passed his VCE examination at the end of 2012.

19. Since finishing high school the applicant has enrolled in 11 courses at either Diploma level or Bachelor level in Commerce, Business or Accounting and appropriate Foundation Studies in Business. The applicant was unable to provide any certificates of graduation, statements of enrolment, or course transcripts of subjects studied and/or passed for the years 2013 and 2014.

20. During the hearing and at the conclusion of the hearing the Tribunal explained the significance of such documentation and asked the applicant to provide such documentation. The Tribunal explained to the applicant the reasons for making such a request and the applicant advised both in English and through his interpreter he understood the nature of the request.

21. At the outset the Tribunal examined the applicant on a statement he had provided to the delegate on 12 April 2016. This statement offered a range of reasons as to why the applicant had been unsuccessful in the early years of his post-secondary studies. Those reasons were poor study habits, lack of discipline, lack of course and lecture attendance, excessive part time work and spending large periods of time with his then girlfriend.

22. The Tribunal sought an explanation for these reasons and the applicant disavowed any knowledge of significant parts of its content. The applicant denied it was his signature at the bottom of the statement.

23. The applicant repeatedly advised he did not have a girlfriend in Australia and had never had a girlfriend in Australia. Pressed by the Tribunal the applicant explained he had a girlfriend for many years in China and was shortly about to get engaged to her. The applicant denied on a number of occasions ever having a girlfriend in Australia.

24. Further the applicant was emphatic he had never worked in Australia. He said he had never worked in Australia because he did not need to work. The applicant explained he came from a wealthy family in China, was an only child, his father owned a large company in China and he received regular large remittances from China which were intended to and did cover all of his expenses.

25. The applicant explained the remittances were paid into his bank account at the Commonwealth Bank. The Tribunal requested the applicant forward a copy of those remittance statements for examination. The Applicant agreed to do so as a matter of urgency.

26. These documents were provided by the applicant on 8 November 2017.

27. The applicant explained the inconsistency between his statement and his evidence by saying his Migrant Agent (MA) at the time was dishonest, that as his then case developed the applicant could see his MA was not doing a good job and why a different MA was retained in the future.

28. The applicant advised the Tribunal he had not seen the completed statement, the signature was not his handwriting and he did not sign it. The Tribunal accepts this particular evidence and has no regard for the aspect of this statement relating to part-time work and an alleged relationship with a then girlfriend. The Tribunal has no regard for paragraphs 8, 9 and 10 of the applicant’s statement of 12 April 2016 (Df: 14)

29. The applicant did not disavow the remainder of the statement. In substance the remainder of this statement is the same as his statement of 25 October 2017 (Tf: 36).

30. The Tribunal had regard to the applicant’s circumstances in his home country. The applicant explained he was an only child, both his parents were still alive, he was shortly to get engaged to his long standing girlfriend in China, that his father owned a large company in the property development industry in China, that his family was wealthy and funded his entire stay and all associated costs in Australia, that he returned to China 2/3 times every year to see family and future family and there was an expectation he would return to China at the conclusion of his studies to work in the family company.

31. The applicant explained his family were of the view that study in Australia would give skills that would materially assist in the running of the family company. The Tribunal has regard to cl 9 (a) (b) and (c) of Ministerial Direction Number 53. The applicant clearly has significant personal ties of family and community in China. His own future wife is in China. His future employment is in China. Both his family and his wife’s family will continue to reside in China.

32. Ordinarily the Tribunal would regard these circumstances as indicative of an incentive to return to China at the conclusion of studies. In this context the Tribunal notes these incentives are not sufficiently real or immediate that the applicant either significantly improves his study performance or concludes his study.

33. The Tribunal has regard to these factors.

34. Clause 9 (d) and (e) were not relevant in this matter.

35. The Tribunal had regard to the applicant’s potential circumstances in Australia. The Tribunal has regard to Cl 11 (a) (b) (c) and (e) of Ministerial Direction Number 53. There was no evidence of any family or community ties in Australia. There was no evidence of any personal friendships of significance in Australia.

36. The applicant acknowledged his study record in Australia was poor.

37. He variously blamed the different institutions, his own lack of self-discipline, poor time management, lack of assistance from peers and lecturers alike, his MA and his own decision to not study, his own decision not to seek assistance and his own decision to withdraw from courses.

38. There was no evidence the applicant ever sought or received professional advice, assistance or counselling from any of the various institutions the applicant attended. There was no evidence the applicant ever sought counselling or instruction in correct study habits that would assist his passage through the higher education sector in Australia.

39. After 5 years in various institutes of higher education the applicant was unable to point to a single academic achievement. He sought further opportunity to commence a Bachelor degree in Business or Commerce. The applicant was reluctant to acknowledge the shortcomings of his own approach. The applicant did advise the Tribunal his father had discussed with him the choice of his course and his education provider.  The applicant wished to continue studying in Australia until at least the end of 2019. The Tribunal has regard to this evidence.

40. The Tribunal has regard to the value of the course to the applicant’s future. The Tribunal has regard cl 12 (a) and (b). The applicant gave evidence and his 2 statements all addressed the relevance of study in Business or Commerce to his future role in a family owned company in China. The Tribunal accepts this obvious linkage. The Tribunal also notes this linkage has not been sufficiently strong for the applicant to graduate from his various courses of study in Australia.

41. The Tribunal cannot ignore this direct linkage. However the linkage between study and future employment has to be more than indicative of a position. It needs to be real. The applicant’s own study record is a testament to continuing lack of endeavour and failure. It is the record of a poor student. It is not the record of a student committed to his own advancement or the welfare of his family. It is a record of indifference. On the basis of the applicant’s own lack of progress and achievement the relevant courses of study seem to have little value to the applicant.

42. The applicant provided to the Tribunal a statement of future intent concerning employment post-graduation in the family company back in China and consequent offer of employment post-graduation from studies in Australia. The applicant advised he had accepted the offer. The applicant advised the formal acceptance was in a phone conversation with his father.

43. The applicant advised there was no independent verification of either the offer or the acceptance. The Tribunal notes the date for implementation is more than 2.5 years after the date of offer. It is from the applicant’s father in a family company. It is conditional upon success in studies. In reality the job offer from his father in the family company expressed to apply at the conclusion of studies is to a significant extent self-serving.

44. The Tribunal has regard to all of these factors.

45. The Tribunal has regard to the applicant’s immigration history. The Tribunal had regard to both Cl. 13 and 14. There was no evidence of breach of any visa condition, no evidence of visa cancellation, the applicant’s entire period of time in Australia was lawful and the applicant regularly left and returned to Australia.

46. In his early years of study after high school the applicant studied short, inexpensive courses. Thereafter the applicant studied expensive, short courses. The applicant has yet to commence a Bachelor level course at a University. The applicant has not studied in a meaningful way that leads to success and a voluntary return to his home country. The applicant has spent many years in Australia and wants to remain for at least another 3 years.

47. To date the applicant has studied in a way that guarantees academic failure but enables ongoing lawful residence. The amount of time the applicant has spent in Australia requires the Tribunal have regard to cl.14 (b) (iii). In particular the Tribunal has reviewed “the amount of time the applicant has spent in Australia”. The period of time is almost 8 years. In that time the only academic achievement of the applicant has been to finish secondary school.

48. In those circumstances the applicant “has been onshore for some time without successfully completing a qualification”. This is a serious matter. Ministerial Direction Number 53 requires an acceptable level of academic progress or reasonable explanations for lack of such progress. The evidence points to continuing failure and a series of ongoing shortcomings acknowledged by the applicant and not remedied in any material way. The Tribunal finds the applicant is using the student visa program to maintain ongoing residence.

49. In his statement to the Department in April 2016 the applicant said he had just finished the Foundation Program at RMIT and now wished to continue and further enhance his study through Diploma level to a Bachelor degree. He said it was quite common for Chinese students to choose Business and Commerce as a major because like many others, his family owns a company in China and since the applicant is the oldest son it is normal for him to inherit the company.

50. The Tribunal notes the decision record had a detailed discussion of the PRISMS record of the applicant. It disclosed the applicant’s enrolment in Foundation Studies Business Stream was cancelled on 2 occasions for reasons of “unsatisfactory attendance” on 23 February 2015 and 22 June 2015.  The decision record notes the references to the PRISMS of the applicant outline in considerable detail the many instances of COE cancellation and the reasons. The Tribunal notes the applicant did not challenge an identical finding of the delegate in his decision of 1 June 2016.

51. The Tribunal requested an explanation for these cancellations and continuing non-study during the remainder of 2016. The applicant advised he had been the passenger in a major car accident on 31 May 2016 and the fall-out from this accident prevented the applicant from studying during 2016.

52. The applicant provided a picture of a wrecked car and a picture of a man in a hospital bed. The applicant said the car was the vehicle involved in the accident. No independent verification of this comment was provided to the Tribunal.

53. The applicant said the man in the picture was himself. The Tribunal accepts this evidence.

54. The applicant provided a copy of an “Ed Attendance Summary EH290130” document in the name of the applicant for 31 May 2016 from the Eastern Health Emergency Department at Box Hill Hospital. It showed his admission time as 02:02 and discharge time as 19:20 on the same day.

55. The Tribunal examined the document. It outlined “no procedure performed” and some Pathology and CT requests. The document did not show any diagnosis, treatment advice, recommended recovery processes or remedial activity. The document did not disclose any period of incapacity or restriction of activity or movement.

56. The applicant said the direct after effects of the accident resulted in him being unable to engage in study for the remainder of the year. The Tribunal requested the applicant provide evidence that supported this statement and gave time for the applicant to obtain any additional relevant medical reports etc. that would be proof of his ongoing incapacity. The applicant undertook to try and obtain this evidence.

57. The Tribunal notes all this evidence. It is even more critical because it was given in the context when retention of the applicant’s student visa was under review.

58. In October 2017 the Tribunal requested the applicant provide “documents that show past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion”.

59. Except as outlined in paragraphs 4-6 the applicant did not provide the relevant documentation. As noted in paragraph 7 the applicant did not provide the relevant material. COE’s are not documents that show past studies. COE’s are not attendance certificates. COE’s are not academic transcripts. COE’s are not certificates of completion. Provision of this material to the Tribunal would assist in its deliberations around Ministerial Direction Number 53.

1. At the conclusion of proceedings the Tribunal gave the applicant another opportunity (the 3^rd) to provide this and other material relating to a motor vehicle accident, consequent alleged medical disability and 1 day stay in hospital, remittance details from China and course progress. The applicant undertook to provide the material as a priority.

2. The Tribunal repeatedly explained to the Tribunal the importance of providing the material. The applicant advised he understood the request of his own volition and through his interpreter. The Tribunal explained the same request to the applicant’s witness in the presence of the applicant.

3. On 8 November 2017 the applicant provided a further detailed unsigned statement and attachments which addressed issues relating to his car accident, various COE’s and enrolment confirmations and course transcripts for the period 2015-2017, bank transfer statements in Chinese characters and in translation, bank statements from January 2014 until the present time, detailed medical notes from treating doctors and nurses on 31 May 2016 (only) and a COE from RMIT dated 2 November 2017 for enrolment in a Diploma of Commerce  from 1 January 2017 until 31 December 2017.

4. The Tribunal has reviewed the statement of the applicant and examined all the attachments.

5. The statement refers to the circumstances of the accident, the applicant’s admission to hospital, the lack of external injuries, his lack of contact with the police, his inability to contact the driver of the vehicle, the inability of the hospital to provide a medical report because the staff could not locate his record and his suffering of psychological shadow for a long time after the accident.

6. In his statement the applicant asserted “in mid-2016 he suffered serious injury both physically and psychologically” and recovered only in 2017.

7. The applicant did not provide any medical reports or other evidence concerning inability to study or restrictions on study at any time after his accident.

8. The applicant did not provide any medical reports or other evidence of medical treatment, rehabilitation programs, counselling or psychological treatment or follow-up at any time after the accident.

9. The applicant did not provide any evidence of assistance or professional counselling from RMIT or elsewhere during any of this period. The applicant did not give any evidence of returning home to China to seek family assistance, advice or counselling in this period.

10. The Tribunal is unable to find any relationship between the car accident and poor study outcomes during 2016.

11. Course transcripts from RMIT showed the applicant completed the bulk of the Foundation Studies Business Stream in 2015 failing 3 subjects and was enrolled in a Diploma of Commerce at RMIT in 2016 and 2017 and successfully completed 5 subjects and is yet to complete 3 subjects.

12. Transcript provided by the applicant as discussed above shows he has completed some subjects in the above courses in the period 2015 until present. The applicant did not provide any certificates of graduation.

13. The applicant was unable to provide any COE or letter of enrolment or course transcript from   Deakin for 2013. The applicant advised Deakin refused to provide the requested material because he was no longer enrolled as a student.

14. The applicant was unable to provide any COE or letter of enrolment or course transcript from his period at CIC.The applicant advised CIC refused to provide the requested material because he was no longer enrolled as a student.

15. The applicant provided relevant bank transfer statements in Chinese characters and in translation and bank statements from the Commonwealth Bank as outlined above. The bank transfer statements show the applicant receives regular large remittances from China. The bank statement show the applicant transferred almost $50,000 to RMIT (presumably for course fees) on 5 occasions between November 2014 and March 2017.

16. The bank statements from the Commonwealth Bank are a record of thousands of transactions relating to routine household and living expenses over a period of 3 years. Critically they do not show any deposits apart from those as outlined. This tends to suggest the applicant was not engaged in alternate paid employment in this period.

17. The Tribunal has had regard to all of the above material. The Tribunal has had regard to all material parts of Ministerial Direction Number 53.

    Concluding paragraphs

18. The Tribunal finds the applicant has been resident in Australia for almost 8 years and seeks to remain for at least another 2 years. In that time the Tribunal finds the applicant has generally been a poor student, has spasmodically engaged in serious study, and achieved some limited success in his studies.

19. The Tribunal is satisfied the applicant was enrolled in successive courses at RMIT from 2015 until the present time, has sometime attended studies, has a mixed pass rate in both his Foundation Studies Business Stream and his Diploma of Commerce, has graduated from neither course as yet and has not engaged in employment in Australia.

20. The Tribunal expresses concern at the lack of proof of attendance at educational institutions in 2013 and 2014. The Tribunal is unable to find any relationship between the car accident of 31 May 2016 and poor study outcomes during 2016 in whole or in part.

21. The Tribunal discerns a pattern of behaviour funded by his parents that is indicative of a desire to remain in Australia as a resident. The applicant has not yielded to the many incentives of family, marriage, employment and position to return to China. The applicant has not yielded to an incentive of employment in a family company in China. Neither has the applicant yielded to incentives to conclude his studies.

22. Instead the applicant offers numerous reasons to explain his lack of achievement accompanied by an undertaking to succeed in the future. The Tribunal is not satisfied this undertaking is directed to anything other than remaining in Australia as a resident on an ongoing basis. 

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

24. 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

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

    Mark Bishop
    Member