WANG (Migration)

[2019] AATA 5341

WANG (Migration) [2019] AATA 5341 (8 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jinzhang WANG

CASE NUMBER:  1726725

DIBP REFERENCE(S):  BCC2017/2969409

MEMBER:Gregory Sarginson

DATE AND TIME OF

ORAL DECISION AND REASONS:         8 August 2019 at 11:37 am (NSW time)

DATE OF WRITTEN RECORD:                13 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the decision under review 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 13 August 2019 at 2:23pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – significant economic and personal ties to home country – length of time in Australia – limited travel home – study consistent with career plans – job offer in China – value of course – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 October 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 8 August 2019 the Tribunal made an oral decision with reasons to be provided within 14 days. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 October 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

4. The applicant applied for the visa on 18 August 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.

5. 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) for reasons that relevantly included:

   a)    The applicant had not demonstrated substantial economic or personal ties to China.

   b)    The applicant had spent a relatively small amount of time in China since arriving in Australia on 15 March 2010;

   c)    The applicant had been unable to provide details as to how the proposed course of study would substantially improve his career prospects in China.

6. The applicant appeared before the Tribunal on 8 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant was assisted in relation to the review by their registered migration agent.

8. The Tribunal had obtained a Provider Registration and International Student Management System (PRISMS) record and movement record prior to the hearing.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 or not the applicant is a genuine applicant for entry and stay as a student.

    Genuine applicant for entry and stay as a student (cl.500.212)

11. 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?

12. 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, which is attached to this decision, 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.

13. 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.

    Documentary evidence of the applicant

14. The applicant provided documentary evidence that was not available to the decision maker at first instance.  The applicant provided such documents together with written information in response to the Tribunal’s request for information under s 359(2) of the Act.  The applicant also engaged a registered migration agent, who attended the hearing but did not make oral submissions at the hearing.

15. Such documentary evidence relevantly included:

    a)Academic records; degrees and diplomas of the applicant.

    b)Documents from ATF Elites, a small accountancy and financial advisory firm that the applicant had been employed with since July 2016.

    c)Property ownership record in respect of a 84.92 square metre residential property owned by the applicant in Yanta District, Xi’an;

    d)An offer of employment from Kuangte Investment Management Pty Ltd in Xi’an in respect of the position of Investment Manager commencing on 6 January 2020.  The date of the letter is 29 March 2019.

    e)Confirmation of enrolment for a Master of Professional Accounting course at Top Education Institute Pty Ltd for the period from 22 July 2019 to 30 December 2019.

    The applicant informed the Tribunal prior to the hearing that he would make available a lecturer at Top Education Institute and his manager at ATF Elites to give evidence by telephone at the hearing, if the Tribunal wished to hear evidence from such persons.  Ultimately, the Tribunal determined that it was unnecessary to hear oral evidence from such witnesses.

    Oral evidence of the applicant at the hearing

16. The applicant gave evidence at the hearing.  The oral evidence of the applicant at the hearing can be relevantly summarised as follows:

17. The applicant is a 30 year old man who is a citizen of China.

18. The applicant arrived in Australia in March 2010 on a student visa.  Since 2010, the applicant had completed a number of registered courses, relevantly including a Diploma of Commerce; Bachelor of Commerce-Professional Accounting; Advanced Diploma of Translating; Diploma of Financial Planning; and Graduate Diploma of Accounting. The applicant is currently enrolled in a Masters of Professional Accounting at Top Education Institute Pty Ltd.

19. The applicant’s parents reside in China.  The applicant has no family members in Australia.

20. The applicant purchased a 2 bedroom unit in Xi’an in February 2017.  The applicant paid a purchase price of the equivalent of $200,000 (AUD).  There is no mortgage on the residential property.

21. When the applicant arrived in Australia to study, the applicant’s father had wanted the applicant to study for qualifications in business and accounting; and then return to China.

22. By July 2015, the applicant had completed a Bachelor of Commerce-Professional Accounting at Macquarie University.  The graduation ceremony for this degree was in about April 2016.

23. The applicant did not return to China after completing the Bachelor of Commerce-Professional Accounting degree, because he was not sure what type of employment he wished to obtain (he was interested in banking; accountancy; financial planning; and real estate) and he and his family believed that he required further qualifications to enhance his prospects of employment in China.

24. The applicant obtained employment at ATF Elites, a small accountancy firm (5 employees) providing accountancy and investment advice in July 2016 and remains employed at that firm.  Many of the clients of the firm were Chinese citizens or Australian citizens with a Chinese background.

25. The applicant’s work involved providing accountancy and financial advice.  In this capacity, the applicant attended a number of conferences, and believed that qualifications in interpreting would assist him to provide advice to clients at ATF Elites.  The applicant completed a 1 year Advanced Diploma of Translating between July 2016 and June 2017.

26. The applicant then enrolled in a Diploma of Financial Planning and Advanced Diploma of Financial Planning as a package course at Australian Professional Education Institute.  A reason the applicant enrolled in this course was that it would enhance his skills providing advice to clients at ATF Elites, as clients not only required advice on tax and accounting issues, but also advice regarding investment and financial planning.  The applicant completed the Diploma of Financial Planning component of the course in February 2018, but the education provider cancelled the Advanced Diploma of Financial Planning component of the course because there were insufficient students.

27. The applicant then enrolled in a package course at Top Education Institute Pty Ltd for the qualifications of Graduate Diploma of Accounting and Masters of Professional Accounting.  The course commenced in July 2018, and will end on 30 December 2019.  The applicant had a further 4 units to complete his Masters of Professional Accounting degree.

28. The reason the applicant had enrolled in the Graduate Diploma of Accounting and Masters of Professional Accounting was because the course offered by Top Education Institute was significantly shorter duration to an equivalent course in China.  The applicant also asserted that due to the competitive job market in China, a Masters level degree was of assistance.  Further, the applicant stated that a reason that he did not wish to study for the equivalent of a Masters of Professional Accounting degree in China was that he had been living and studying in Australia for a considerable period of time and it would be a “culture shock” to further study in China.

29. The applicant did not intend to remain in Australia after completion of the Masters of Professional Accounting degree. 

30. While in Australia, the applicant had applied for the position of Investment Manager at Kuangte Investment Management Pty Ltd in Xi’an.  The applicant had been successful and had been offered the position, subject to the applicant providing evidence that he had completed a postgraduate degree at Masters level.

    The factors specified in Direction No 69-Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications under s 499 of the Act

31. The Tribunal has considered the criteria as follows:

    Circumstances in own country

32. The applicant’s evidence is that his parents reside in China; he owns residential property in China; and he has been offered employment in China upon completion of the Masters of Professional Accounting degree in December 2019.

33. The Tribunal accepts that the applicant has significant ties to China.

    Potential circumstances in Australia

34. The applicant has resided in Australia since March 2010 and has studied (and completed) a number of different courses over that time period.  Considering the applicant is 30 years of age, and he has been in Australia for over 9 years, the applicant has spent a very considerable time in Australia, which when considered with his employment at ATF Elites since July 2016 and the duties he has performed (providing accounting and investment advice to clients predominantly of a Chines/Australian background), the applicant has a strong knowledge of living in Australia.

35. The Tribunal has some concerns that the applicant may not be genuinely residing in Australia on a temporary basis due to the length of time he has been in Australia studying, together with the nature of his duties and period of employment at ATF Elites.

36. However, weighed against that concern is that the course of study he has undertaken are consistent with the applicant’s career plans (the applicant explaining that the qualifications in interpreting were not obtained to change careers into the interpreting field, but to enhance his skills dealing with Chinese/Australian clients), being all related to the fields of accounting and investment, and progressing towards a Master’s degree.  The applicant has completed the courses he has commenced, other than the Advanced Diploma of Financial Accounting at Australian Professional Education Institute, which the applicant stated was cancelled due to insufficient student numbers.

37. Further, the applicant only has a brief period of time to complete the Masters of Professional Accounting degree (approximately a further 4 months) and his evidence to the Tribunal at the hearing was that he intends to return to China to take up the position he has been offered as an Investment Manager commencing on 6 January 2020.  The applicant also owns residential property in China.

38. Despite some concerns, the Tribunal is satisfied that the preponderance of evidence is that the applicant is in Australia genuinely for the purpose of study, and genuinely on a temporary basis.  The Tribunal has given significant weight to the applicant’s evidence at the hearing that he does not intend to apply for further courses of study at the completion of the Masters of Professional Accounting degree on 30 December 2019 and intends to return to China to take up the position of Investment Manager at Kuangte Investment Management Pty Ltd in Xi’an commencing on 6 January 2020.

    Value of course to applicant’s future

39. The applicant’s evidence regarding the value of the Masters of Professional Accounting degree is that he requires this level of qualification to be employed in the position of Investment Manager at Kuangte Investment Management Pty Ltd in Xi’an.  There is no reason for the Tribunal not to accept this evidence, and accordingly the course has significant value to the applicant’s future.

    Applicant’s immigration history

40. The applicant’s evidence was that he had not returned to China since February 2017 and had only returned to China on 3 other occasions between 2011 to date.  The applicant’s evidence was consistent with the information contained in the movement records which the Tribunal had obtained prior to the hearing.

41. Although the Tribunal has some concerns regarding the limited number of visits made by the applicant to China to see family and friends since 2011 because such lack of visits may indicate that the applicant’s ties to Australia are stronger than his ties to China, such concerns are outweighed by the factors set out in paragraphs [35]-[38] above.

    If the applicant is a minor, the intentions of a parent, guardian or spouse

42. The criterion is not relevant, as the applicant is not a minor.

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

    Does the applicant intend to comply with visa conditions?

44. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

45. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).  

46. There is no evidence to conclude that the applicant has failed to comply with visa conditions in the past or that there is a real prospect he will fail to comply with visa conditions prior to completion of the Masters of Professional Accounting degree on 30 December 2019.

47. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

48. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

    There are no other relevant matters under cl.500.212(c).

    Conclusion on cl.500.212

49. 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.

50. 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

51. 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.

    Gregory Sarginson
    Member