Wang (Migration)

[2019] AATA 2637

Wang (Migration) [2019] AATA 2637 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xiangyu Wang

CASE NUMBER:  1804668

HOME AFFAIRS REFERENCE(S):           BCC2017/4361867

MEMBER:Peter Booth

DATE:29 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 29 May 2019 at 4:48pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – change in study direction – interest in hospitality – regression in level of study – relevance of proposed course – vague future plans – length of proposed stay – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 February 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 20 November 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 24 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 is a genuine temporary entrant.

2. 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?

1. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

2. 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.

3. The applicant gave evidence to the Tribunal at the hearing, the substance of which is as follows.

4. The applicant is currently enrolled in an Advanced Diploma of Information Technology which started approximately four weeks ago.  It is due to be completed in June 2020.

5. The applicant arrived in Australia in March 2011 as the holder of a Student (Subclass 573) visa requiring him to undertake higher education study.  That visa was due to expire on 15 March 2015.

6. Since arriving in Australia the applicant has completed a variety of courses as follows:

   a.a Bachelor of Finance in 2015;

   b.a General English diploma in 2015;

   c.a Certificate III in Hospitality in 2016;

   d.a Certificate IV in Hospitality in 2016;

   e.a Diploma of Hospitality in 2017;

   f.an Advanced Diploma of Hospitality in 2017; and

   g.a Diploma of Software Development in May 2019.

7. As stated above, the applicant is currently studying an Advanced Diploma of Information Technology.

8. The applicant was asked to explain the change in direction of study from finance to hospitality.  He informed the Tribunal that he wanted to study hospitability originally, but his family had told him that he must study finance.  He said that having completed the Bachelor of Finance degree, he intended to work in the financial sector.  He said that in China, finance is a “field to get into” and that usually higher education qualifications were required.  In answer to a question from the Tribunal, the applicant said that after completing the courses in hospitality, it was his current intention to work in hospitality.  He added that hospitality employment required skills in information technology, which he did not have.  He said that if one needed to book a hotel room, “people use apps” to do that.  He was asked why he had completed a Diploma in Software Development if his true interest was in hospitality.  He said that it would teach him basic skills to develop applications and website designs.  He was asked whether he was majoring in software development in his Advanced Diploma of Information of Technology.  He said that he was not.  He said the current course “is about business plans”. 

9. The Tribunal asked the applicant what was his intended field of employment once he has finished the current course.  He said that his family still wanted him to do something in finance but that he wanted to work in hospitality.  He said he wanted to work in management within the hospitality sector.

10. The applicant said that all the courses were somehow related but did not expand upon that.  The Tribunal pointed out that he had only completed one higher education course, namely the Bachelor of Finance.  He was asked to explain the change in level of his study from a Bachelor level course to lower level vocational courses.  He responded by saying that he thought the current education provider was “good”.   In answer to a further inquiry to respond to the question by the Tribunal, he said that in his opinion in order to work in the finance sector, one needed to do higher education course but if one was to work in hospitality, one needed to learn “real skills”. 

11. His immediate family in China comprise his father and two sisters.  He said that he had no assets in his own name in China.  He told the Tribunal that he is not currently working and had not engaged in work for remuneration whilst he has been in Australia.

12. The Tribunal noted that the applicant had left Australia on three occasions since arriving, in December 2012 (for three months), in November 2013 (for one month) and in January 2018 (for one month).  

13. The applicant estimated that his salary in China as a hospitality manager would be in the vicinity of AUD $30,000 per year.

14. The Tribunal informed the applicant that it had read his Genuine Temporary Entrant Statement dated 10 November 2017.  He was asked whether he wished to add anything to it.  He declined.  The Tribunal also informed the applicant that it had read his ‘Request Checklist and Details’ dated 20 December 2017 and was asked if he wished to add anything to it.  He declined.  These documents provide responses, which are broadly consistent with the applicant’s evidence at the hearing. 

15. The applicant also produced a variety of documents at the hearing comprising course certificates and academic transcripts.  The Tribunal informed the applicant that the documents had been perused, and it accepted that he had completed all the courses as stated.  The applicant had nothing to add to those documents.

16. The applicant concluded by saying that in 2013 when he was about to undertake exams, he was told that his mother was ill and went back to China to visit her.  He said that his mother passed away shortly thereafter and that she “cared a lot about academic achievement and wanted me to continue to study”.  He said that he wanted to finish his current course and return to China to look after his father, who now had a heart condition.  He said that he would like to have a job near his family so he could go and visit them often.  He said that he did not believe that if he wanted to work in hospitality he needed to undertake higher education studies and that there was a lot of opportunity to learn matters in his current course to add to his skills.  He reiterated that he considered all the courses he had completed were related.  He added that in a hotel all the jobs require some knowledge of information technology.

17. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with clause 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.

18. The Tribunal has considered the applicant’s circumstances in his home country.  The applicant is unmarried and is from China.  The applicant has provided evidence of social, direct family ties to his home country or other economic incentives to return. When considering the applicant’s circumstances his home country, the Tribunal therefore finds that he has been able to demonstrate significant ties to act as an incentive to return to his home country at the completion of the proposed study.

19. The Tribunal has considered the applicant’s potential circumstances in Australia.  The applicant first arrived in Australia in March 2011 as a holder of Student (Subclass 573) visa valid to 15 March 2015.  The proposed study would extend the applicant’s stay until at least June 2020.  The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia.

20. The Tribunal has considered the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country.  The Tribunal has also considered the applicant’s study history since arrival.  He commenced study in a Bachelor of Business, followed by a variety of other courses.  The Tribunal notes that this course plan is inconsistent with the applicant’s other qualifications; and is inconsistent with his plans when he initially arrived in Australia.  The applicant now wishes to pursue an Advanced Diploma of Information Technology in Australia.  The course is asserted to have relevance to very vague future plans and is said to be generally relevant to a career in hospitality.  The latter is difficult to accept.

21. The applicant has provided two documents in which he attempts to address the genuine temporary entry criterion.  The applicant claims that he will gain value from an Advanced Diploma of Information because he wishes to work in hospitality in his home town.  The Tribunal is not satisfied that the applicant has established that further study will provide him with significant benefit in his proposed career plan, considering the cost of the study, and the fact that he already has qualifications more directly relevant to hospitality.  The Tribunal is therefore not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds.

22. The Tribunal has given regard to the applicant’s immigration history. The applicant arrived in Australia in 2015 as the holder of a Student visa requiring higher education study.  Only one such course has been completed.  All others are vocational.  Whilst the Tribunal accepts that plans can change, this is not the conduct of a genuine student.  Rather, it suggests the applicant has decided to extend stay in Australia by utilising the Student Visa Programme.

23. The Tribunal has given regard as to whether there is any other relevant matter.  The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.

24. The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.

25. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: economic circumstances of the applicant; any potential military service in China; political or civil unrest circumstances in China; remuneration the applicant could expect to receive in China or a third country compared with Australia; circumstances in China relative to Australia or any other country; and the applicant’s circumstances in China relative to others in that country.

26. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.  Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.

27. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

28. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

29. Given the above findings, the 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.

DECISION

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

Peter Booth
Member