Wang (Migration)

[2018] AATA 5756

Wang (Migration) [2018] AATA 5756 (9 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Xiao Wang

CASE NUMBER:  1708745

HOME AFFAIRS REFERENCE(S):           BCC2017/946136

MEMBER:Stephen Conwell

DATE:9 December 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 09 December 2018 at 4:06pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine applicant for entry and stay as student – not genuine temporary entrant – entered on Visitor visa – Diploma of Leadership and Management – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 and Border Protection on 12 April 2017 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 10 March 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 delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student and that she genuinely intended to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 13 September 2018 to give evidence and present arguments.  The applicant was assisted in relation to the review by their registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. At Hearing the applicant confirmed that she is applying for a Student visa and does not claim to meet the criteria for a Student Guardian visa. She also confirmed that she provided the Tribunal with a copy of the delegate’s decision with her application for a merits review. 

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

7. Where used in this decision:

   a.   COE refers to Confirmation of Enrolment;

   b.   VET refers to Vocational Education and Training;

   d.   The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection);

   e.   ‘Direction 69’ or ‘the Direction’ refer 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 has complied with cl.500.212(b) in so far as the applicant intends to comply with any conditions subject to which the visa is granted.

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

9. 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.

10. According to the delegate’s decision, the applicant provided a GTE Statement (DIBP. fols.21-22) and several supporting documents to the Department.  According to the GTE Statement the applicant:

    ·       came to Australia on a Visitor visa because it is “famous for its well-structural(sic) education system.”

    ·       visited many schools in Melbourne and then decided to continue her education here;

    ·       has operated her own business – an international kindergarten – for the nine past years and wishes “to improve myself in the field of business and management.”

    ·       intends to return to her home country of China after she finishes her study. 

    Summary of the delegate’s decision

11. According to the decision record:

    ·       The applicant entered Australia in 12 January 2017 on a Visitor visa, stating on her incoming passenger card that the purpose of her visit was to stay for approximately eight days.

    ·       She is now proposing to study Certificates I-IV in EAL and Diploma of Leadership and Management, which is scheduled for completion on 24 May 2020, meaning that the applicant is seeking a further three years stay from her first arrival.

    ·       The delegate found that the applicant’s electing to study in Australia was a significant change from her original intentions to remain onshore for only eight days whilst holding a Visitor visa.  This suggests that the applicant undertook a greater degree of planning and preparation before her arrival in Australia, than she purports to be the case.

    ·       The delegate was not satisfied that the applicant had demonstrated a “clear and substantial improvement” to come from her proposed study to outweigh “significant time and monetary commitment” which this further study would require.

    ·       After weighing up evidence the delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily. 

    s.359AA

12. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant information from the Provider Registration and International Student Management System known as PRISMS. The Tribunal explained:

    a.   that this information is relevant to the review because, when considered alongside all the other information before the Tribunal it could have reason to believe that the applicant was seeking to circumvent the ordinary migration program by using the Student visa program as a means to maintain ongoing residence in Australia;

    b. that if it relied on this information it may lead it to believe that she did not intend to stay in Australia temporarily, and did not meet cl.500.212. If the Tribunal finds this to be the case, it would be the reason or a part of the reason for affirming the decision that is under review.

13. The applicant was informed that she could comment or otherwise respond to the information or that she may seek additional time to comment or respond to the information.

14. The applicant confirmed that she understood the relevance of this information to the process. She requested, and was granted, a few minutes time to consider the PRISMS information and discuss it with her representative; the hearing proceeded after this short interval.

15. The applicant’s PRISMS record dated 13 August 2018 showed that she is currently enrolled in Certificate IV in EAL.

16. The applicant also tendered COEs in respect of her enrolment in EAL and the Diploma of Leadership and Management.

17. The applicant submitted a GTE submission to the Tribunal (Tribunal fol. 58 - both sides) which re-states her interest in improving her English, acquiring business management skills to support the growth of her business, and her view of the value and quality of an Australian education for overseas students.

18. Prior to the Hearing the applicant also completed a 359(2) questionnaire.

19. The Tribunal has reviewed all the above material. 

    Does the applicant intend genuinely to stay in Australia temporarily?

20. 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.

21. 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.

22. The applicant arrived in Australia on a Visitor visa on 12 January 2017, declaring on her incoming passenger card that the purpose of her stay was for a holiday and she planned to stay for approximately eight days. She now proposes to remain in Australia for more than 3 years.

23. The Tribunal does not accept that a person travelling as a tourist for a visit of merely eight days would make such a significant change from their initial intent of a brief holiday, particularly when it would mean leaving her husband and young child back in the home country. The applicant’s oral evidence at hearing confirmed that she and her husband had discussed her proposal to study in Australia prior to her leaving China. This supports the Tribunal’s view that the stated intent of the applicant in her application for a Visitor visa must have included a greater degree of planning and preparation prior to her arrival in Australia.

    The applicant’s circumstances in the home country

24. The Tribunal has regard to the applicant’s circumstances in China.  The applicant claims to have strong ties to her home country as her spouse and child as well as her parents and siblings live there and she must return to care for her parents as they grow older. The Tribunal accepts that the presence of her husband and young child in China is likely to act as an incentive for the applicant to wish to return there, however it also supports the Tribunal’s contention that her decision to study in Australia, whilst ostensibly claiming to be a short-term visitor, would have involved a greater amount of planning and preparation before arriving in Australia.

25. Although the economic and social differences between Australia and China are becoming less  divergent, particularly for China’s rapidly growing middle class, the Tribunal finds that there are sufficient benefits available to the applicant by residing in Australia, for her to seek to maintain residence here.

26. The applicant confirmed that there were no adverse reasons pertaining to the following factors indicated by Direction 69 that would prevent her from returning to China and the Tribunal makes no findings against the applicant based on:

    ·      any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;

    ·      circumstances in the home country relative to Australia or any other country;  or

    ·      the applicant’s circumstances in the home country relative to others in that country.

27. The Tribunal is prepared to give some weight to the applicant's claim that her personal ties are an incentive for her to wish to return permanently to the home country upon completion of her studies onshore.

    The applicant’s potential circumstances in Australia

28. The Tribunal has regard to the applicant’s potential circumstances in Australia. The applicant's economic circumstances in Australia appear to be comfortable - she is living in share accommodation with class mates.  She keeps in contact with her husband, child and other family members several times a week by social media. This arrangement appears to be acceptable to her given that she is seeking to remain onshore for a further 18 months or so.

29. The applicant does not work due to the ‘No work’ condition on her Bridging visa. She claims that her living and study expenses are self-funded from her savings and assets in China.

30. Given the relatively short time that the applicant has been onshore, the Tribunal is prepared to draw no adverse conclusions regarding the applicant's circumstances in Australia and whether they present as a significant incentive for her to seek to maintain ongoing residence indefinitely. 

    The value of the course to the applicant’s future

31. The Tribunal has regard to the value of the course to the applicant’s future.  The applicant claims to own an ‘international kindergarten’ which she has operated for nine years before arriving in Australia.  No corroborating evidence was submitted however the Tribunal is prepared to accept the applicant’s evidence in this regard.

32. However, having run her own business for nine years in her home country, the Tribunal is not persuaded that the enrolment in a Diploma of Leadership and Management is justified or can reasonably be said to add value to the applicant’s future. The applicant has not provided satisfactory arguments or evidence that this further enrolment would add distinct value on top of her long-term business ownership and work experience in China.

33. Consequently the Tribunal is of the view that the applicant’s enrolment in study, whilst she was onshore on a short-term visa, is unlikely to significantly enhance the applicant's career prospects or remuneration upon return to her home country in order to justify the expense and time required to pursue this further study.

    The applicant’s immigration history

34. The applicant arrived in Australia on a Visitor visa, claiming to be on a holiday of approximately eight days. The Tribunal has considered the applicant’s explanation of why she chose to apply for a Student visa when the stated purpose of her visit was to remain in Australia for approximately eight days. The Tribunal is of the view that the applicant’s travel to Australia would have involved a greater amount of planning and preparation that she cares to admit. Indeed her oral evidence supports this view. The Tribunal has grave concerns that the applicant’s intentions to remain in Australia are motivated by factors other than study. 

35. In oral evidence the applicant stated that she has not applied for any other visa for Australia or other countries nor does she have an adverse immigration record. There is no evidence before the Tribunal to suggest otherwise.

36. Although there is no evidence of any breach of visa condition by the applicant, it would appear that she has misrepresented to the Department her true intentions for coming to Australia.  The Tribunal finds such conduct to be a serious contravention of Australia’s migration laws which it gives significant weight to. Consequently the Tribunal makes an adverse finding against the applicant in this regard. 

37. The Tribunal finds that the applicant’s misrepresentation of the purpose of her visit to Australia, together with her decision to leave her husband and child in her home country in order to pursue overseas studies of questionable value to her stated career goals, cumulatively suggest that the applicant is not a genuine applicant for entry and stay as a student, nor is she a genuine temporary entrant.

    Any other relevant matters

38. There are no other relevant matters.

    Conclusion on cl.500.212

39. 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).

40. 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.

41. 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

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

    Stephen Conwell
    Member