Wong (Migration)

Wong (Migration) [2019] AATA 5727 (20 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Siu Yi Wong
CASE NUMBER:  1613938
DIBP REFERENCE(S):  BCC2016/1132975
MEMBER:Michael Ison
DATE:20 December 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 20 December 2019 at 4:02pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – genuine intention to stay temporarily – multiple student visas over extended period – changes of course area – failure in multiple units and courses – multiple enrolments cancelled – gaps in study – value of study to future employment – five visits to home country in first six years, but none since then – family ties to home country, but no evidence of other relevant ties, or incentive to return – current and potential circumstances in Australia – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), ss 65, 359(2), 359AA
Migration Regulations 1994 (Cth), Schedule 2, 573.223(1)(a)
CASE
Kaur v Minister for Home Affairs [2019] FCCA 1372

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 15 March 2016. The delegate decided to refuse to grant the visa on 12 August 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).
The applicant is a 36 year old Chinese national who arrived in Australia on 12 July 1998 as a 15 year old on a Student (Subclass 560 Student Guardian) visa to complete her secondary schooling in Australia. The applicant completed her secondary schooling in 2001 and since that time has held multiple Student visas at the Subclass 572 and Subclass 573 levels.
The applicant provided the Tribunal with a copy of the delegate’s decision when applying to the Tribunal to review that decision. The delegate refused to grant the visa because the delegate found the applicant did not satisfy the requirements of cl.573.223(1)(a) of Schedule 2 to the Regulations. The delegate made this decision because the delegate found the applicant had not provided strong reasons or sufficient evidence of how her study plan in Australia will benefit her future, did not provide evidence of any family, social, assets or business and employment ties to her home in Hong Kong which would encourage the applicant to return home, had not departed Australia since 2004 and had multiple changes of course direction leading the delegate to conclude the applicant is using the student visa program as a means of circumventing Australia’s migration program to acquire ongoing residency in Australia.
The applicant appeared before the Tribunal on 21 February 2018 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 was represented in relation to the review by her registered migration agent who made oral submission during the hearing and provided written submissions throughout this review on behalf of the applicant.
At the commencement of the Tribunal hearing the Tribunal explained the determinative issues before the Tribunal, explained the Tribunal’s role and how the hearing would proceed including explaining that the Tribunal is independent of the Department and is not bound by the delegate’s decision and also explained the role of both the interpreter as an aid to communication and the applicant’s representative during the hearing. The Tribunal further informed the applicant that it would allow both the applicant and her representative to address the Tribunal towards the end of the hearing on any matter they felt was relevant to the applicant’s review.
The Tribunal received the following submissions and information from the applicant:
·Submission dated 19 December 2019 providing documents including a cover email, a statutory declaration from the applicant declared on 19 December 2019, an email from the applicant’s current education provider confirming the applicant passed the last unit of her Bachelor of Business (Accounting) course on 7 November 2019 and the applicant’s conditional Offer of Enrolment in a Master of Professional Accounting (Advanced) that is due to commence on 17 February 2020 and conclude on 5 December 2021 at a cost, with a 15% scholarship applied, of AU$43,520.
·Submission dated 10 September 2019 providing documents including a cover email, a statutory declaration from the applicant declared on 10 September 2019, the applicant’s then current Confirmation of Enrolment in a Bachelor of Business (Accounting) being an extension enrolment that commenced on 12 August 2019 concluding on 13 October 2019, a confirmation of completed studies letter dated 6 September 2019 and academic transcript from the applicant’s current education provider stating the applicant has 220 out of 240 credit points toward the completion of her Bachelor degree and a letter of support from a lecturer and Deputy Head (Accounting) at the applicant’s education provider dated 5 September 2019;
·Submission dated 29 January 2019 providing a letter of support from one of the applicant’s teachers;
·Submission dated 28 January 2019 providing documents including a statutory declaration from the applicant declared on 27 January 2019, the applicant’s then current and previous Confirmation of Enrolment in a Bachelor of Business (Accounting) the latter of which commenced on 27 May 2019 and had been extended to conclude on 28 July 2019, a letter and academic transcript from the applicant’s education provider and a reference from a teacher;
·Submission dated 27 February 2018 providing documents including a statutory declaration from the applicant declared on 27 February 2018 and a summary of the travel history to Australia of the applicant’s mother;
·Submission dated 21 February 2018 including a certificate of completion for a Bachelor of Information Technology (Multimedia Technology) awarded on 8 October 2014 and two pages of medical records dated 8 February 2018 and 30 January 2018;
·Submission dated 20 February 2018 providing documents including a copy of an original and translated birth certificate for the applicant and two pages of medical records for the applicant’s father from Hong Kong dated 21 and 22 January 2018;
·Submission dated 13 February 2018 providing documents including a four page written submission, a statutory declaration from the applicant made on 13 February 2018, the applicant’s then current Confirmation of Enrolment in a Bachelor of Business (Accounting) that was due to commence on 19 March 2018 and conclude on 19 May 2019, the applicant’s year 11 VCE results, some secondary school reports for years 9 to 11, an undated curriculum vitae for the applicant, a General English (ELICOS) test report dated 3 December 2004, certificates of completion for a 10 week General English (Upper Intermediate) course, Diploma of Computing, nine certificates of class attendance for units studied between February 2006 and 30 January 2009 all of which are dated 6 February 2018, photocopies of extracts from the applicant’s mothers’ current and previous passport and various letters confirming study at different education providers and also academic transcripts; and
·Electronic mail and attachments dated 26 January 2018 confirming the attendance of the applicant and her representative at the Tribunal hearing.
On 14 January 2019 the Tribunal wrote to the applicant in accordance with the procedure set out in s.359(2) of the Act requesting the applicant to update the Tribunal on her circumstances since the Tribunal hearing in 2018. The Tribunal provided the applicant with a copy of an updated Provider Registration and International Student Management System (PRISMS) report that showed the applicant had commenced a Bachelor of Business (Accounting) on 19 March 2018. The Tribunal did not consider this information to be adverse to the applicant because it was consistent with her evidence given at the Tribunal hearing on 21 February 2018 that the applicant would be starting the course on the date stated.
The applicant responded to the Tribunal’s letter through the submissions dated 28 and 29 January 2019 that are noted above.
On 28 August 2019 the Tribunal wrote to the applicant in accordance with the procedure set out in s.359(2) of the Act requesting the applicant to update the Tribunal on her circumstances including information about her current study as the information before the Tribunal at that time was the applicant’s enrolment in a Bachelor of Business (Accounting) was due to be completed on 28 July 2019.
The applicant responded to the Tribunal’s letter through the submission dated 10 September 2019 that is noted above.
On 5 December 2019 the Tribunal wrote to the applicant. The Tribunal’s letter stated, in part:
During the Tribunal hearing on 21 February 2018 you told the Tribunal your purpose for being in Australia was to finish your studies and return to Hong Kong. At the time of the Tribunal’s hearing you were studying a Bachelor of Business (Accounting).
In your response dated 10 September 2019 to the Tribunal’s letter dated 28 August 2019, sent to you in accordance with the procedure in s.359(2) of the Act seeking updated information from you, you provided an updated Certificate of Enrolment that showed your enrolment in the Bachelor of Business (Accounting) had been extended to 13 October 2019.
Following receipt of your letter the Tribunal obtained an updated copy of your Provider Registration and International Student Management System (PRISMS) record that was printed on 4 December 2019. A copy of that report is enclosed.
Your updated PRISMS report states that your enrolment in the Bachelor of Business (Accounting) “finished” on 13 October 2019. Your updated PRISMS report does not record you having an offer of enrolment or being enrolled in any registered course of study since that time.
This information is relevant to your review because the information indicates:
·You are not currently enrolled in, or the subject of a current offer of enrolment in, a course of study which indicates you do not meet the primary criteria for the grant of a Student visa under cl.573.231(a). This was not the ground on which your application for the Student visa was refused. This is a time of decision criteria which means at the time the Tribunal makes its decision on your application you must be currently enrolled in, or the subject of a current offer of enrolment in, a course of study to be eligible to be granted a Student visa; and
·You have not been enrolled in any course of study since 13 October 2019 which indicates you are not in Australia genuinely temporarily to study but are using the Student visa program to maintain residency in Australia for as long as possible.
The consequence of the Tribunal relying on this information in relation to your review is that the Tribunal may find:
(i)You appear to have completed your study in Australia but despite not enrolling in further study for nearly two months you remain resident in Australia indicating you do not meet the primary criteria in cl.573.223(1)(a) of being a genuine applicant for temporary entry and stay in Australia as a student. This was the determinative issue at the Tribunal hearing; and
(ii)You do not have an enrolment or current offer of enrolment indicating you do not meet the separate primary criteria in cl.573.231(a) for the grant of a Student visa. This is a new potentially determinative issue separate from the determinative issue discussed during the Tribunal’s hearing.
Each of these reasons would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review not to grant you a Student visa.
The applicant responded to the Tribunal’s letter through the submission dated 19 December 2019 that is noted above.
The Tribunal has had regard to the oral evidence of the applicant, all written and oral submissions made on her behalf before, during and after the Tribunal’s hearing and the information in the Tribunal’s file and the Tribunal’s copy of the Department’s file in relation to the applicant’s application for this Student visa.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Having regard to the applicant’s current proposed course of study, a Master of Professional Accounting (Advanced) the relevant subclass in this case is Subclass 573 Higher Education Sector.
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)…
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.
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.
In the recent decision of Kaur v Minister for Home Affairs & Ano.,[1] the Federal Circuit Court observed:
The use of guidelines in the exercise of statutory discretionary powers is not uncommon. [*] The trend of reasoning in the authorities [*] respecting Direction 53 … confirms that the use of those guidelines requires that they be addressed insofar as they are relevant to the particular facts of the instant application. By extension, those guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines. [Footnotes omitted]
The applicant’s circumstances in the applicant’s home country
[1] Kaur v Minister for Home Affairs [2019] FCCA 1372
In her application for this Student visa dated 15 March 2016 the applicant submitted her reasons for studying in Australia rather than Hong Kong are because Australia has better universities that provide a better education standard that is recognised worldwide and Australian studies are taught in English which is a worldwide preferred language and the applicant can more effectively develop her English skills in Australia.[2]
[2] Department file, folio 4.
The Tribunal accepts that the applicant believes she has sound reasons for undertaking her study in Australia rather than in Hong Kong.
The applicant told the Tribunal she has important personal ties to her home country has her mother and father, married older sister and brother continue to live in Hong Kong where she also has other relatives including her mother’s family. The applicant’s evidence is that her parents live in public housing and she will live with her parents when she returns to Hong Kong, where she expects to have a reasonable standard of living compared to others in Hong Kong.
In submissions the applicant has stated that she does not have any military service commitments and there is no political or civil unrest affecting her or her family in her home country that would act as a significant incentive for the applicant not to return home. The Tribunal accepts the applicant’s evidence above, despite the recent civil unrest in Hong Kong.
The Tribunal discussed with the applicant her movement records in accordance with the procedure set out in s.359AA of the Act. The Tribunal explained to the applicant what her movement records are, how they are compiled and particularised the information in those records as showing that after the applicant had returned to Hong Kong five times in her first six years in Australia, the applicant has not returned to Hong Kong since 2004. The Tribunal explained that the relevance of this information to her review was that it could indicate she is not maintaining her family and other relationships in Hong Kong. The Tribunal explained to the applicant that the consequences for her review of the Tribunal relying on this information is that it could lead the Tribunal to form the view that the applicant continues to enrol to study in Australia so she can maintain residence here as opposed to genuinely progressing academically and that such a finding would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review.
The Tribunal offered the applicant additional time to consider this information before inviting the applicant to comment upon or respond to the information. The applicant requested and was granted a short adjournment to consider the information, including discussing it with her representative.
The applicant told the Tribunal that she stays regularly in touch with her family, particularly her parents who support her financially, by telephone and by using social media and speaks to them at least once a week.
The applicant also told the Tribunal that she has not returned to Hong Kong since 2004 because her mother has regularly visited her in Australia. In the submission dated 27 February 2018 the applicant’s representative provided a summary stating the applicant’s mother had visited her in Australia after 2004 in 2009, 2012, 2013 and 2015 for up to 3 months at a time.[3] This information is supported in part by the photocopies of extracts of the applicant’s mothers’ passports provided in the submission dated 13 February 2018.[4]
[3] Tribunal file, folio 89.
[4] Tribunal file, folios 33 to 36 and 42 to 43.

The Tribunal finds that the applicant has resided in Australia for 21 of her 36 years and has not returned to Hong Kong since 2004 or 15 years ago. The Tribunal sets to one side the applicant’s first six years in Australia when she was completing her secondary schooling and regular returned to Hong Kong to visit her family. In the past 15 years the applicant’s mother has travelled to Australia on four occasions to visit the applicant.
The Tribunal finds that the applicant seems quite satisfied with staying in touch with her family in Hong Kong using telephone and Internet communications and by her mother visiting her every few years, on average. This causes the Tribunal concern that the applicant does not have a significant incentive to return to her home country and maybe using the Student visa program to maintain residence in Australia rather than genuinely to stay in Australia temporarily to study.
When explaining some of the significant gaps in her study the applicant told the Tribunal about her father’s illness in 2017 and how he wanted her to return to Hong Kong and for the applicant to get married and have and raise children at home like her cousins in Hong Kong. The applicant told the Tribunal this was not the life she wants for herself as she wants to be a career woman but she feels she will be under significant pressure from her parents to marry and have children if she returns to Hong Kong. This causes the Tribunal great concern that this family pressure to choose a lifestyle the applicant does not want acts as a significant incentive for the applicant to continue to obtain Student visas so that she can maintain residence in Australia rather than return to Hong Kong. This causes the Tribunal concern that the applicant is not a genuine temporary entrant into Australia to study.
The applicant’s potential circumstances in Australia
The applicant told the Tribunal that she lives on her own in rental accommodation but has an uncle and his family living in Melbourne in Australia who she is not in regular contact with other than when significant festivals occur. The applicant’s evidence is she has no other relatives in Australia. The Tribunal accepts this evidence.
The applicant’s evidence is she is not a member of any groups or clubs, such as sporting clubs in Australia, does not attend a church or temple for religious observances, has few or no friends in Australia and in her spare time likes to listen to music, go to pet shops or go to parks. The applicant told the Tribunal she does not wish to settle in Australia but wants to return to Hong Kong upon the completion of her studies.
The Tribunal found that the applicant’s evidence that she has few or no friends in Australia having lived, studied and worked in Australia for 21 years to be unconvincing but the Tribunal does not make any adverse findings against the applicant in this regard.
The applicant provided the Tribunal with a copy of her curriculum vitae showing her work history in Australia dating back to 2009. The applicant’s evidence is she has worked in an office administration role for a home loan company since February 2017 and is aware of the condition that attaches to her Student and Bridging visas that restricts the amount of paid work she can do to 40 hours per fortnight. The applicant says she generally works 10 to 15 hours a week and is paid at least AU$10 per hour.
The Tribunal accepts this evidence. There is no evidence before the Tribunal that the applicant has worked in breach of her visa conditions or that she is earning such a significant income in Australia that this may act as an economic incentive for the applicant to use the Student visa program to maintain ongoing residence in Australia.
The applicant provided information to the Tribunal, which the Tribunal accepts, showing that she has completed the following courses in her time in Australia:
·Secondary school, years 9 to 11 – 1999 to 2001;
·Certificate in Foundation Studies – 2002 to 2003;
·General English (Upper Intermediate) – 27 September 2004 to 3 December 2004;
·Diploma of Computing – 25 June 2007 to 13 February 2009;
·Bachelor of Information Technology (Multimedia Technology) – 4 March 2009 to 11 July 2013; and
·Bachelor of Business (Accounting) – 19 March 2018 to 7 November 2019.
The Tribunal discussed with the applicant the information in her PRISMS record in accordance with the procedure set out in s.359AA of the Act, including providing the applicant and her representative a copy of the PRISMS record relied upon by the Tribunal. The Tribunal explained to the applicant what her PRISMS records are, how they are compiled and particularised the information in those records as showing that after secondary school the applicant had completed, at the time of the Tribunal’s hearing, a 10 week English course, University Foundation Studies, a Diploma of Computing and a Bachelor of Information Technology but had had a further nine enrolments cancelled. The Tribunal explained the relevance of this information to the applicant’s review was that it could indicate she is not studying in Australia to progress academically but is studying to maintain residency here. The Tribunal explained to the applicant that the consequences for her review of the Tribunal relying on this information is that it could lead the Tribunal to form the view that the applicant is not a genuine temporary entrant into Australia to study and that such a finding would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review.
The Tribunal offered the applicant additional time to consider this information before inviting the applicant to comment upon or respond to the information. The applicant requested and was granted a short adjournment to consider the information, including discussing it with her representative.
The applicant explained to the Tribunal that she had a gap in her studies when studying her Foundation Studies course because at that time in 2002 – 2003 her health was not good and she applied for a one semester “leave of absence”, which was granted by her education provider, before returning to complete those studies. The applicant did not provide any documents to the Tribunal such as medical information or correspondence with her education provider to support this evidence and PRISMS records this cancellation as “Student Notifies Cessation of Studies”. The Tribunal gives little weight to the applicant’s evidence explaining this gap in her studies but notes the applicant did complete the course.
The applicant told the Tribunal and submitted in her statutory declaration declared on 13 February 2018 that in the first half of 2004 she forgot to renew her Student visa and so returned to Hong Kong to do so, causing a gap in her studies. This evidence is consistent with the information in the applicant’s movement records which records that the applicant spent 10 months in Hong Kong from November 2003 until September 2004. The Tribunal accepts this evidence.
The applicant’s evidence is her studies were also affected by the following events that she submits were beyond her reasonable control:
·The applicant had health problems at the beginning of 2014 that arose from breaking up with her boyfriend of a few months at the time causing the applicant to become depressed, for which she sought treatment by visiting a medical clinic almost daily at the time and being prescribed medicine. The applicant says she also discussed her situation with her education provider, obtaining the assistance of the Student Welfare Officer, but did not provide any documents to support this evidence. The applicant told the Tribunal she slowly recovered and has not had a boyfriend before this relationship or since. The only documents the applicant provided to the Tribunal in support of this evidence was a medical certificate from Burwood Healthcare dated 30 January 2018 that states:
This is to certify Miss.Suiyi has taken treatment for psychological condition from this medical centre in 2014 and 2015, this letter was issued on her request. (sic)[5]
·In 2016 the applicant suffered a foot injury which she described as an ingrown toenail which meant she could not walk to her classes and attend her education provider at the time. The applicant told the Tribunal she called Nurse on Call, visited a doctor and had two to three visits to a podiatrist but her injury affected her ability to study. The applicant provided a medical certificate from Waverley Medical Centre dated 8 February 2018 that states:
Please be advised that Siu Yi Wong, was seen on 18th November 2016 at Waverley Medical centre for left big toe pain which she had had for two – three weeks prior to presentation.
She had seen a podiatrist regularly prior to this with minimal improvement for an ingrown toe nail and had bleeding and pus as a result of this which was affecting the way she walked.
She was started on antibiotics to assist with this and advised to see her podiatrist for further treatment and return to the clinic for ongoing review. She had marked inflammation at the time of the review. This may have caused difficulty with walking at the time and may have affected her studies towards the end of the year in 2016. (sic) [6]
·Her father fell ill in June 2017, including suffering depression “and coughed a lot with symptom of dyspnea”[7] (shortness of breath or laboured or difficult breathing), because the economic situation in Hong Kong at the time was adverse for him and his pay was reduced causing him great stress. The applicant provided the Tribunal with a medical certificate for her father dated 21 January 2018 for a “chest infection” and a radiology report dated 22 January 2018.[8] The applicant’s evidence, as noted above, is that her father wanted her to return to Hong Kong and marry and have children but this was not a life the applicant wanted as she says she wants to be a career woman. The applicant says this caused arguments between her and her father which resulted in him withdrawing financial support for a period which in turn meant the applicant could not pay her course fees causing the cancellation of her enrolment in a Bachelor of Business (Accounting) on 26 June 2017. This situation caused the applicant to suffer “anxiousness and depression” but eventually her father agreed to financially support the applicant until she completed her studies and the applicant then re-enrolled in the Bachelor of Business (Accounting) in February 2018. The Tribunal accepts this evidence as it is consistent with the information in the Confirmations of Enrolment provided by the applicant, in her PRISMS record and with the medical evidence the applicant provided in relation to her father.
[5] Tribunal file, folio 84.
[6] Tribunal file, folio 85.
[7] Applicant’s statutory declaration made on 13 February 2018, Tribunal file, folios 70 to 71 at folio 70 (back).
[8] Tribunal file, folios 80 and 81.
In relation to the medical evidence provided by the applicant the Tribunal notes that the certificate in relation to the applicant’s psychological condition in 2014 and 2015 does not provide any detail about what condition the applicant was suffering, what treatment she was provided, how many times she was seen by the certifying doctor, what impact the applicant’s psychological condition would or may have had on her ability to study and whether the treatment was effective, has ceased or is ongoing. As a result the Tribunal gives this evidence very limited weight.
The Tribunal notes in relation to the medical certificate for the applicant’s ingrown toenail in 2016 that the certifying doctor has only repeated the applicant’s instructions in the certificate in relation to the circumstances of her injury, does not state how many times applicant was seen by the certifying doctor and provides a heavily qualified conclusion that the applicant’s condition may have caused difficulty with walking at the time and may have affected her studies towards the end of 2016. The Tribunal gives this evidence limited weight.
The applicant’s representative explained to the Tribunal that the applicant had enrolled in packages of courses and when she had gaps in her studies and also failed courses this caused the cancellation of multiple enrolments. The Tribunal accepts the applicant had two enrolments cancelled and changes to two other course enrolments on 12 November 2008. The cancellation of six other course enrolments all occurred on unique dates and four of those enrolments cancellations do not appear to have been cancellations that were caused by changes to other enrolments as two of those cancellations are recorded as arising due to non-payment of fees and two are recorded as due to “Student Notifies Cessation of Studies”.
The applicant acknowledged to the Tribunal that her academic progress has been poor and that she has failed many units and multiple courses, which the Tribunal sets out in more detail below. In her statutory declaration declared on 27 February 2018 the applicant set out chronologically her course enrolments, changes, cancellations and some course failures but provided little detail about the reasons for those changes, cancellations or failures, at least for her enrolments from 2005 onwards.[9]
[9] Tribunal file, folio 88.
In her evidence to the Tribunal the applicant and her representative explained the applicant’s early post-secondary school study choices including enrolling in an Advanced Diploma of Business (Marketing), which she failed, re-enrolled in and failed again, then a Diploma of Mass Communication, which she also failed. The applicant told the Tribunal she then relied on the advice of her education provider’s course adviser who suggested information technology studies leading to the applicant enrolling in a Diploma of Computing, in which she also failed some units before re-enrolling and passing that course, packaged with a Bachelor of Information Technology (Multimedia Technology) where she again failed units leading to multiple enrolments before completing her degree in July 2013, attempted a Bachelor of Business (Marketing) and failed before commencing her Bachelor of Business (Accounting) in March 2014. According to publically available information on the Commonwealth Register of Institutions and Courses for Overseas Students internet website[10] this is usually a three year course at the applicant’s education provider. It has taken the applicant over five and a half years since the applicant first attempted that course to complete it.
[10] >
The applicant has provided academic transcripts to the Tribunal showing:
·2002 – 2003 Foundation studies: five units failed;
·2003 – 2005 Advanced Diploma of Business (Marketing): 10 units failed;
·2006 – 2008 Diploma of Computing: 15 units failed;
·2009 – 2013 Bachelor of Information Technology (Multimedia Technology): eight units failed;
·2014 – 2019 Bachelor of Business (Accounting): 19 units failed.
These transcripts do not cover all of the courses studied by the applicant. What the transcripts the applicant has provided show is that she has failed 57 units of study between 2002 and 2019 in effectively five courses, albeit over multiple enrolments.
The Tribunal is not satisfied that the applicant’s oral and written evidence adequately explains the three significant gaps in her study in 2002, 2004 and 2017-18 and the applicant’s very poor academic progress over the past 15 years and her regularly failing courses and units of study.
The Tribunal finds that the applicant’s academic progress is not that of a genuine student who is in Australia temporarily to study. This causes the Tribunal significant concern that the applicant is using the Student visa program to maintain ongoing residence in Australia.
The applicant explained and submitted to the Tribunal that she is now committed to completing her Bachelor of Business (Accounting) on time and returning to Hong Kong. At the time of the Tribunal’s hearing in February 2018 the applicant said she had only nine units to complete her Bachelor of Business (Accounting) as she had passed 15 units. The applicant also submitted that she had not applied for a permanent visa during her time in Australia and had only applied for Student visas and this evidences her commitment to her studies and intention to return home. As explained above and below, the Tribunal does not accept the applicant’s evidence that she has demonstrated a commitment to her studies and her intention to return to Hong Kong during her time in Australia.
The applicant provided three letters of support from lecturers or teachers in her recently completed course dated 25 and 29 January 2019 and 5 September 2019, with the two latest dated letters from the same lecturer.[11] The letters attest to the applicant’s attentiveness in class and engagement with the subjects the lecturers taught, with one letter noting the applicant’s participation in the student ambassadorship program at the applicant’s education provider. The Tribunal accepts these letters of support as evidence that the applicant was actively engaged in the subjects taught by those lecturers and in wider campus life.
[11] Tribunal file, folios 106, 109 and .
As noted above, the applicant also provided nine certificates of class attendance all dated 6 February 2018 showing the applicant averaged a 95% class attendance rate for the 24 units covered by the certificates. However the certificates state they are for units the applicant studied between February 2006 and 30 January 2009 and so are of limited relevance to the applicant’s current attendance and performance as a student.
In the most recent submission sent to the Tribunal on the applicant’s behalf dated 19 December 2019, the applicant provided a statutory declaration declared on 19 December 2019 in which the applicant states:
Considering my future career and my knowledge limitation, I am thinking to further my study to learn Master of Professional Accounting program. …
I have no intension to use student visa to maintain residency in Australia for as long as possible. Study is always my purpose in Australia. I hope AAT could consider my situation and give me extension time to get my new COE. (sic) [12]
[12] Tribunal file, folio 132.
The applicant provided the Tribunal with evidence of a conditional offer of enrolment for a Master of Professional Accounting (Advanced) course dated 19 December 2019.[13] The Tribunal accepts this evidence of the applicant having a current offer of enrolment.
[13] Tribunal file, folios 133 to 141.
The Tribunal finds the applicant has a realistic knowledge of living and studying in Australia, having resided in Australia for the past 21 years now and having completed her senior secondary schooling and all of her tertiary education in Australia.
The Tribunal finds that the applicant is well established in Australia with a lifestyle that balances working, studying - although not always successfully - staying in touch with her family in Hong Kong and appears to meet the applicant’s other personal needs as evidenced by the fact the applicant has not departed Australia since 2004. In short, the applicant has adjusted to and adopted a way of life that is acceptable to her and she appears able to maintain this lifestyle in Australia even when her parents withdrew financial support for a period in 2017, as the applicant was able to afford to stay in Australia and did not return to Hong Kong, albeit that she could not also afford her course fees at the time.
The Tribunal finds the applicant’s ties to Australia act as a strong incentive for her to maintain her residence in Australia. The Tribunal also finds the applicant has significant incentives not to return to Hong Kong due to the expectations of her family there that are not consistent with her own desires for the future.

These findings cause the Tribunal great concern that the applicant is using the Student visa program to circumvent the intentions of Australia’s migration program. They also caused the Tribunal to doubt the sincerity of the applicant’s evidence at the time of the Tribunal’s hearing that the applicant was committed to completing her then current course punctually and would return to Hong Kong at the end of that course.
The value of the course to the applicant’s future
The applicant’s evidence is that she originally studied information technology based on the advice of a course adviser at her education provider at the time but has since found that it is very male dominated and competitive industry in Hong Kong.
In her statutory declaration declared on 13 February 2018 the applicant stated:
Considering of the fierce competition among graduates in Hong Kong and limited knowledge I obtained [after studying information technology], I realized that it was not enough for me to find a good job in my hometown in the future. After researching, I found that compound multi-skilled person was highly recommended by majority large enterprises. Considering of my ability, I thought it might be hard to directly study Master level course.
…
I believed that if I studied accounting program, combined with my IT knowledge, I could get more opportunity to step into a big company in the future after graduation. (sic) [14]
[14] Tribunal file, folios 70 to 71 at folio 71.
The applicant told the Tribunal she intends to work for a big company in Hong Kong, such as Hewlett-Packard or a bank, as an accountant with system software or information technology system design responsibilities or as a certified practising accountant. The applicant explained to the Tribunal that she expects an accountant’s main duties are helping the company with its payroll, auditing accounts receivable and payable, being familiar with accounting software, being familiar with how the company operates including knowing the company’s total earnings, profit and loss and expenses including managing stock.
The applicant told the Tribunal she expects to earn more using her Australia qualifications in Hong Kong than she earns in Australia with the average income for an accountant in a big company in Hong Kong being between HK$120,000 to HK$240,000 per annum, which the applicant said equates to AU$20,000 to AU$40,000 per annum. According to the Reserve Bank of Australia internet website at the time of this decision AU$1 equals HK$5.36.[15] Using this currency conversion rate means an income in Hong Kong of HK$120,000 to HK$240,000 is equivalent to earning AU$22,388 to AU$44,766 which is consistent with the applicants expectations.
[15] See Information accessed on 19 December 2019.
The applicant now has a conditional offer to study a Master of Professional Accounting (Advanced), which is a two year course extending the applicant’s stay in Australia until 5 December 2021 at a cost to the applicant AU$43,520 with a 15% scholarship and AU$51,200 without the scholarship. Even when the applicant was studying the Bachelor of Business (Accounting) the Tribunal was not convinced by the applicant’s evidence about the genuineness of her plan to be an accountant in Hong Kong or even her commitment to that plan, given the applicant’s poor academic results and progress in Australia, the length of time she has been in Australia post her secondary schooling and not realised her plans and her incentives not to return to Hong Kong.
The applicant’s enrolment in the Masters course has heightened the Tribunal’s concerns. It is a departure from the applicant’s evidence at the Tribunal hearing. However, Direction No.53 specifically requires decision makers to allow for reasonable changes of plans and a considerable period of time has elapsed since the Tribunal hearing.
The cause of the Tribunal’s heightened concern is that the applicant has not provided any reason for the enrolment in the Masters course beyond her future career and “knowledge limitation”. It is not clear to the Tribunal what additional knowledge or skills the applicant will gain that she has not obtained from her Bachelor level and other studies in Australia or how any additional knowledge and skills the applicant may gain from the Masters course will assist in her career opportunities or improve her potential remuneration upon return to Hong Kong. The applicant already holds two Australian Bachelor degrees: a Bachelor of Information Technology (Multimedia Technology) and a Bachelor of Business (Accounting) and seems to have sufficient qualifications to realise her stated plans in Hong Kong.
The Tribunal accepts that obviously the Masters is a higher level qualification than the Australian qualifications already held by the applicant but it is for the applicant to establish the value of such further study to her future. In the Tribunal’s view the applicant has not established this. The Tribunal finds that in the circumstances of the applicant with a poor academic history, having been studying at the post-secondary school level since at least 2003 and already holding two Australian Bachelor degrees in information technology and accounting, the studying of a Masters in accounting will add at best only marginal or incremental value to the applicant’s future.
Having made the above finding, this adds to the Tribunal’s concern that the applicant has enrolled in further study not to genuinely progress academically as a student but to maintain ongoing residence in Australia.
The applicant’s immigration history
The applicant acknowledged that she stayed in Australia after her Student visa had expired in 2003. The Tribunal notes the applicant has been granted multiple Student visas since.
Apart from this breach, there is no other information before the Tribunal of the applicant being found to have not complied with her visa conditions and immigration laws in Australia or overseas, to have had a visa in Australia or overseas cancelled or refused (other than the visa the subject of this review) or otherwise to have had an adverse immigration finding in Australia or overseas. The Tribunal has previously addressed the amount of time the applicant has spent in Australia and the Tribunal’s concern that the applicant is using the Student visa program to maintain ongoing residence in Australia.
Any other relevant matters
Both the applicant and her representative accepted the Tribunal’s invitation at the end of the Tribunal hearing to address the Tribunal on any other matters they wished to bring to the Tribunal’s attention. The matters raised in those submissions have been addressed in the Tribunal’s reasons above.
Since the Tribunal’s hearing the Tribunal has received five written submissions and additional information from the applicant dated 27 February 2018, 28 January 2019, 29 January 2019, 10 September 2019 and 19 December 2019. The Tribunal has also addressed the matters raised in those submissions in the Tribunal’s reasons above.
Conclusion
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 the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.573.223(1)(a).
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Ison
Senior Member

[2019] AATA 5727

20 December 2019

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