Tang (Migration)

[2018] AATA 135

Tang (Migration) [2018] AATA 135 (30 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ji-Fa Tang

CASE NUMBER:  1619385

DIBP REFERENCE(S):  BCC2016/1065016

MEMBER:Mark Bishop

DATE:30 January 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 30 January 2018 at 2:42pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Holder of multiple work and student visas – Poor academic progress – Ceased study of multiple courses –Using the student visa program as a means of maintaining residence in Australia – Personal circumstances – Australian wife pregnant

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994 Schedule 1 Item 1222 Schedule 2 cl 572.223

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 11 March 2016. The delegate decided to refuse to grant the visa on 28 October 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.572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied the applicant intended genuinely to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 30 January 2018 to give evidence and present arguments.

5. The applicant provided a copy of the decision record to the Tribunal. The decision record contained references to the movement record of the applicant.

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

   Consideration of claims and evidence

7. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

8. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(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)     …

9. 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.

10. 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.              

11. The Tribunal wrote to the applicant on 4 January 2018 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 did not provide a further GTE statement in addition to his written statement of 17 November 2017.

13. The visa history of the applicant is outlined hereunder:

    ·Applicant granted TZ417 Working Holiday Maker visa 25 October 2010;

    ·Applicant granted 2^nd TZ417 Working Holiday Maker visa 25 October 2011;

    ·Applicant granted Student (Class TU subclass 570) visa 5 November 2012;

    ·Applicant granted Student (Class TU subclass 570) visa 22 October 2013;

    ·Applicant applied for a Student (Class TU subclass 572) visa 11 March 2016. Rejected by delegate 28 October 2016;

    ·Bridging visa A issued 11 March 2016 with condition 8105 attached.

14. The applicant provided the following Certificates of Graduation or Achievement to the Tribunal:

    ·Certificate of Achievement Intensive English 15 April 2013 until 19 July 2013 conferred 19 July 2013;

    • Certificate of Achievement Intensive English  22 July 2013 until 13 September 2013 conferred 12 September 2013;

    ·Certificate of Graduation I ESL (Access)  27 July 2016;

    ·Academic transcript Certificate II in EAL showing all subjects not yet complete dated 27 July 2016;

    ·Academic transcript Certificate III in EAL showing all subjects not yet complete dated 27 July 2016;

    ·Certificate of Enrolment (COE) in Advanced Diploma of Business 17 April 2017 until 20 April 2018;

    ·Diploma of Business conferred 10 March 2017;

    • Statement of Attainment in 6 subjects in Advanced Diploma of Business dated 18 January 2018.

15. The applicant provided a statement to the Department dated 26 April 2016 which made the following points:

    ·The applicant enrolled in Barkly International College to study English in December 2013 for a period of 2 years to study 4 ESL courses. There was a difference with the school concerning method of payment of fees and the school cancelled his COE on 11 September 2014;

    ·The applicant was about to finish his ESL course and enrol in a Business course.

16. The applicant provided a further statement to the Tribunal on 17 November 2017 which made the following points:

    ·His Working Holiday and Student visa history from 2010 until September 2013;

    ·Enrolment in Barkly College for ESL courses;

    ·Cancellation history of his COE’s by Barkly College as outlined above ;

    ·The reason for continuing to study in Business to gain an overseas qualification which is an advantage in applying for jobs in Taiwan;

    ·The fact he was no good at any ‘specific or professional area’, the only option for him being one that ‘doesn’t require too many skills to study and there are more job opportunities’;

    ·He only wanted to apply for an office job because as his mother says ‘blue collar works are not stable’ and she wants him to wear ‘a proper suit and work in an office’;

    ·He is an ordinary person who wants to take care of his parents and will go back to Taiwan and look for an office job after the courses.

17. The Tribunal provided a copy of the PRISMS record of the applicant and explained its meaning to the applicant. The applicant advised he understood the meaning of the PRISMS record.

18. The Tribunal provided the following s.359AA statement to the applicant. The Tribunal read out the s.359AA statement:

    Statement to be read out by Member Bishop at hearing in Case No 1619385

    Mr TANG, I am going to share with you some adverse information that I have from a Departmental database. It is called PRISMS (the Provider Registration and International Students Management System). It tracks, based on information reported by Australian education providers, the enrolment and education achievements of international students in Australia.  I have a PRISMS report dated 12 January 2018.

    The information from PRISMS is:

    1.        PRISMS show you have enrolled in 16 courses since October 2012;

    2. PRISMS report also shows that a great majority many of the courses you have enrolled have been in the same field and hence are repetitive or overlap; 

    3.        PRISMS show you have enrolled in a Certificate II in EAL on 2 occasions;

    4.        PRISMS show you have enrolled in a Certificate III in EAL on 3 occasions;

    5.        PRISMS show you have enrolled in a Certificate IV in EAL on 4 occasions;

    6.        PRISMS show you are currently studying an Advanced Diploma in Business;

    7.YOU have only provided Certificates of Graduation or Attainment as outlined above (Certificates of Achievement in ESL or EAL in 2013 and Diploma of Business in 2017).       

    This information is relevant because it shows that you have ceased studying, cancelled enrolment or time for course completion has finished on 12 occasions. It indicates a lack of academic progress that in the absence of other explanation is not consistent with you being a genuine student staying in Australia temporarily.

    If the Tribunal relies on this information in making its decision, it may lead me to believe that you are not a genuine student, and that you do not meet cl.572.223. If the Tribunal so finds, this information would be a reason, or part of the reason, for me to affirm the decision of the Department in your case and refuse your application for a student visa.

    I invite you to comment on or respond to that information. You do not have to respond or comment now. You may seek additional time to comment on or respond to that information. If you do want additional time, I will consider your request and will grant you a reasonable amount of time to consider the information I have given to you and to consider your response to that information.

    Do you want to comment on or respond to the information I have just provided to you now or would you like some time to consider it before you respond?

19. The applicant advised he did not seek a postponement of the hearing.

20. The Tribunal asked the applicant to explain his almost complete lack of achievement in his study from 2012 until 2017 particularly from September 2013 until 2016.

21. The applicant advised he did attend some school classes from time to time, did not complete his homework and has no record of attendance.

22. The Tribunal inquired as to what the applicant had been doing in the period September 2013 until the present time.

23. The applicant advised he remained at home and occasionally worked. The applicant advised he received financial support from his family and earned approximately $20 per hour for 20-30 hours work per week.

24. The Tribunal inquired as to how often the applicant had returned home since initial arrival in Australia in 2012.

25. The applicant advised he had not returned home since 2012.

26. The Tribunal inquired as to the extent of the applicant’s personal ties to Taiwan and whether those ties served as a significant incentive to return home.

27. The applicant advised did not have any immediate family in Taiwan and he had some relatives in Taiwan. His parents were born in Myanmar and lived there all his life as farmers and agricultural producers. The applicant advised he went to Taiwan to establish his citizenship status. The applicant regards Taiwan as his home as he has lived for most of that time since high school graduation in 2001 until coming to Australia in 2010. The applicant did not outline the detail of any significant business or employment links to Taiwan. The applicant advised his incentives to return to Taiwan at the conclusion of his study were a familiar environment and he could earn income to start a business in Myanmar.

28. The applicant advised his parents lived in Myanmar, provided regular funding to cover his expenses and costs in Australia, possessed significant land holdings and ran large well stocked properties. He considered his parents to be very comfortably off. The Tribunal is of the view the applicant has few family ties of substance in Taiwan, his parents are long term residents of Myanmar  and he left that country to obtain Taiwanese citizenship, he has not visited Taiwan since 2012  and as he explained his links and bonds are to his new wife and family in Australia. The Tribunal is of the view the applicant does not have any ties to Taiwan that would serve as a significant incentive to return to that country. 

29. The Tribunal inquired as to how the applicant communicated with Taiwan.

30. The applicant advised he occasionally chatted with his cousins in Taiwan using social media tools. The applicant advised it was a satisfactory form of communication and was well established and used by his family.

31. The Tribunal inquired as to the applicant’s ties to Australia –family, community, employment which might present as a strong incentive to remain in Australia.

32. The applicant advised he was married to an Australian citizen of Myanmar ethnicity on 26 August 2017 who was born in Myanmar. His wife does not speak Chinese. She has lived in Australia since 2011 after arriving as a refugee and is now an Australian citizen. The applicant agreed he had strong links of family, work and study in Australia. His wife was expecting their first child in April 2018. The applicant advised he had discussed relocating his family to Taiwan and his wife was had not agreed to the shift. The applicant advised he would seek advice as how to acquire a dependant spouse visa so that he could remain in Australia.

33. The applicant agreed he had a life of domestic harmony in Australia, was looking forward to the birth of his child, his wife enjoyed the peace and contentment of Australia after fleeing Myanmar as a refugee and both he and his wife had no problems enjoying the Australian lifestyle, language and culture. The applicant advised it would be easier to find a job in Taiwan than in Australia. He did not offer any reasons but explained the work limitation attached to his student visa was a hindrance to gaining employment in Australia. The Tribunal is of the view the applicant has strong ties to Australia  which present as a strong incentive to remain in Australia  and the student visa program is being used to maintain ongoing residence and to circumvent the intentions of the migration program.

34. The Tribunal inquired as to how the enrolment in an Advanced Diploma of Business might assist to obtain employment or improve his employment prospects.

35. The applicant advised he had not approached any companies to work in Taiwan. He had not retained a recruiter to introduce him to companies or employment options in Taiwan

36. The Tribunal inquired as to what type of work the applicant might seek in Taiwan and what he had done to give effect to that purpose.

37. The applicant advised he would like to run his own small business like a juice bar, a snack shop or a restaurant. He did not have any business plans. He had not initiated any processes to seek a job in Taiwan. He thought his family might support him in such an endeavour. He advised he had not approached his family for this support and they were very comfortably off, had been successful and had significant land holdings and livestock. The applicant was satisfied his parents would provide the necessary capital to open an enterprise in Taiwan.

38. In a previous statement to the Tribunal the applicant advised he would seek white collar work in Taiwan.  The applicant did not refer to this prior motivation in his evidence. He did not relate his current study in Business to either work in Taiwan or the establishment of his own enterprise. The Tribunal is unable to find any connection between current studies in Australia and potential work or self-employment in Taiwan. The Tribunal is of the view the Business course will neither assist nor hinder the applicant’s job or career choices in Taiwan.

39. The applicant’s immigration record shows that he first arrived in Australia in 25 October 2010 on a (TZ 417) Working Holiday visa. In addition, he obtained a second working holiday visa and remained in Australia until 25 October 2012. The applicant told the Tribunal he had rarely left Australia and then only for minimum periods of time. He advised he had not left Australia since 2012.

40. The applicant arrived in Australia in October 2010 and has been resident since 2012 that on various student and associated bridging visas. The applicant seeks to remain in Australia until at least April 2018. The Tribunal is of the view the significant period of time the applicant has spent in Australia since initial arrival suggests his potential circumstance in Australia outweigh any incentive to return to Taiwan.

41. The primary objective of a Student visa holder in Australia is to study a registered course and progress academically. The applicant did not undertake any studies for 8 months between 14 June 2014 and 15 February 2015, and was disciplined by his education provider for low attendance. He had the opportunity to seek a deferral from his education provider if he was experiencing personal problems and could not study, or could have departed from Australia until fit and able to return to study. The applicant gave evidence that he did not seek a deferral from his education provider.

42. The Tribunal has considered comments that he had problems with payment causing cancellation of his enrolment. The Tribunal does not consider this an acceptable explanation for the identified gap in studies of over 8 months.

43. Since the grant of his initial Student visa, the applicant has enrolled in English courses in the ELICOS sector and maintained enrolment in short/inexpensive courses. The applicant provided numerous COE’s to both the Department and the Tribunal for his many enrolments in English courses in the ELICOS sector. None of those COE’s disclosed payment of pre-tuition or tuition fees. The applicant advised he could not provide proof of payment of these fees. Excluding the Certificates of Graduation outlined above for a 7 month period in 2013 the PRISMS record show cancellation of most enrolled English course for  reason of ‘student notifies cessation of studies’. The Tribunal concludes the applicant is using the student visa program to maintain residency in Australia rather than due to a genuine interest in study and academic progress.

44. The Tribunal note the applicant provided evidence of graduation in 3 English courses only in the first half of 2013, all other English study since is categorised by the education provider as ‘not yet complete’ and a Diploma of Business in 2017. The Tribunal has considered the comments of the applicant by way of explanation. The Tribunal does not regard this to be a reasonable completion level for a student whose primary purpose for being in Australia is to study and progress academically.

45. The statement of the applicant addressing how his studies in Australia may benefit his employment options in Taiwan is very general in nature. The applicant states he believes the course will be helpful when applying for future positions in Taiwan. The applicant did not provide any detail of potential jobs. The applicant did not provide any detail of specific jobs. The applicant did not provide any evidence of a plan to seek employment in Taiwan. The applicant did not provide any evidence of approaches to companies in Taiwan. The applicant did not provide any evidence of approaches to recruitment specialists in Taiwan. The applicant did not explain the relevance of his course of study to his academic or employment background. The applicant has failed to provide adequate reasons to the Tribunal that his course of study will assist him to obtain employment or improve his employment prospects in Taiwan in the future. The Tribunal is of the view the applicant is using the student visa program to circumvent the intentions of the migration program and is being used to maintain ongoing residence in Australia

1. The applicant gave evidence of some contact with family and friends in Taiwan using modern technology and tools of social media. The applicant expressed satisfaction with this form of communication. The applicant did not express any concerns about using these methods of communication. The applicant gave evidence he rarely visits Taiwan. The applicant gave evidence he has cousins in Taiwan but his immediate family are long term residents of Myanmar.

2. The Tribunal is of the view that personal ties in Taiwan in the form of cousins, or his immediate family as long term residents/citizens of Myanmar neither of whom he visits, do not of themselves constitute a strong incentive to return home when considered against the fact the applicant is able to communicate with Taiwan on a regular basis in a satisfactory form and lacks strong employment options in Taiwan. The Tribunal is concerned the applicant’s intention to live in Australia is motivated by factors other than study.

3. The Tribunal notes that the applicant applied for this Student visa on 11 March 2016 and applied for enrolment in his course shortly before the application for this visa on 9 March 2016. The Tribunal is of the view the applicant recommenced studying for the purposes of the visa application only in order to secure a student visa rather than due to a genuine interest in this area of study and overall academic progress.

4. The applicant has not provided any substantial reasons as to why he chose to study these courses. The Tribunal gives weight to the lack of apparent value of the courses to the applicant’s future which indicates that he does not genuinely intend to stay in Australia temporarily and is using the student visa program as a means of maintaining residence in Australia.

5. These indicate the applicant is not a genuine student. Rather, the applicant appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and does not genuinely intend to stay in Australia temporarily.

6. There is no significant relevant evidence regarding the following factors indicated by Direction 53 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, economic or political circumstances in the home country, civil unrest in the home country, circumstances in the home country relative to Australia or any other country, the applicant’s circumstances in the home country relative to others in that country.

7. Overall, given the lack of academic progress, his study history, his potential circumstances in Australia, his immigration history and the lack of value of the courses to his future, the Tribunal finds the applicant is using the Student visa program to circumvent permanent migration programs and the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and intends to stay in Australia temporarily.

8. 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 does not meet cl.572.223(1)(a).

   Concluding paragraphs

9. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. 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

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

    Mark Bishop
    Member