Wong (Migration)

[2018] AATA 5516

Wong (Migration) [2018] AATA 5516 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sing Kwan Wong

CASE NUMBER:  1714733

HOME AFFAIRS REFERENCE(S):          BCC2017/1213182

MEMBER:P. Wood

DATE:20 December 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 20 December 2018 at 5:30pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 572 (Student) visa – genuine temporary entrant criterion – poor study history – maintain ongoing residence in Australia –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363A, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

CASES
Hasran v MIAC [2010] FCAFC 40

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 22 June 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 30 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 review applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The delegate in this case refused to grant the visa on the basis that the review applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. The Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal. The Tribunal did not receive any response to that written invitation.

6. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being the address provided by the review applicant in connection with this application for review.

7. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).

8. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

9. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

10. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. 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?

14. 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.

15. Direction No.69 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.

16. The female applicant in this case is a 47-year-old Chinese national who first arrived in Australia on 16 November 2014 as the holder of a subclass 601 visitor visa.

17. Prior to coming to Australia, the applicant completed secondary school at the Hunan Province Senior High School, presumably many years prior.

18. On 9 February 2015 she was granted a subclass 572 student visa onshore to pursue vocational level studies and that visa was valid until 12 April 2017. She applied for the visa which is presently the subject of review before the Tribunal less than a fortnight before that visa was due to expire.

19. According to the delegate’s decision record, the applicant has been enrolled in the following courses in Australia:

    ·    Certificate II in EAL (Access)

    ·    Certificate III in EAL (Access)

    ·    Certificate IV in Business Administration

    ·    Certificate IV in EAL (Further Study)

    ·    Certificate III in EAL (Further Study)

    ·    Certificate IV in Business

    ·    Certificate IV in EAL

    ·    Certificate IV in Marketing and Communication

    ·    Diploma of Marketing and Communication

20. At the time of application to the Department, the applicant was enrolled in the Certificate IV in EAL, Certificate IV in Marketing and Communication and the Diploma of Marketing and Communication. There is no information before the Tribunal as to whether the applicant continued with this or any other study after the delegate’s decision. The Tribunal therefore cannot conclude further in relation to her recent academic progress in Australia.

21. In her undated genuine temporary entrant statement entitled “dear officer” provided to the Department (at df 19), the applicant claims to want to continue the Certificate IV in EAL, Certificate IV in Marketing and Communication and the Diploma of Marketing and Communication. She claims she experienced separate but similar issues with her first education agent and private education provider respectively. She claims she decided to study marketing on the advice of a second education agent. She claims that she chose the Australian Study Link Institute after researching online. In this statement, she confirms her intention to return to Hong Kong to “develop my business”.

22. In her subsequent undated genuine temporary entrant statement entitled “to whom it may concern” provided to the Department (at df 31), the applicant claims that she didn’t adapt to an English speaking study environment in Australia and found her private education providers unresponsive when she sought assistance.

23. In this statement, she claims that the Australian Study Link Institute was the only college that would accept her due to her poor study history. She claims to have transferred her clothing trading business to someone else because it was not profitable. She claims that she considers her failure in business was due to her limited knowledge of marketing. She claims that she would like to re-establish her own trading business in the future.

24. The applicant did not provide the Department or the Tribunal with any verifiable evidence concerning the difficulties she claims to have encountered with her education agent and providers. The Tribunal has not accepted the applicant’s bare assertions concerning not progressing academically.

25. Upon her application to the Tribunal, the applicant provided the Tribunal with a letter addressed “to whom it may concern” (tf 6). The letter is a poor attempt to address the issues raised in the delegate’s decision record. In the letter, she writes that she would like to return to China to take care of her parents. She claims that she will return to Hong Kong because of her networks in the trading business. In all the circumstances, the Tribunal does not consider these to be significant incentives for her to return.

26. The applicant also seeks to explain a half year study gap during her time in Australia between November 2015 and May 2016. During this period, the applicant claims to have felt frustrated and helpless. The applicant’s previous subclass 572 visa was subject to condition 8516 which required her to be a person who would satisfy the primary criteria for the grant of the visa. One of the primary criteria required the applicant to remain enrolled or subject of a current offer of enrolment. Whilst the Tribunal acknowledges that the applicant returned to study after many years, in a foreign language, the Tribunal is concerned that the applicant would have been in breach of condition 8516 during this period. The Tribunal is unaware of any circumstances beyond the applicant’s control concerning this.

27. In this statement, she also restates her previous claims in relation to failing to adapt to an English speaking study environment and finding her education providers unresponsive.

28. The applicant also provided the Tribunal with confirmation of enrolment certificates (tf 8-11), which the Tribunal has read and had regard to. The Tribunal is concerned that the applicant proposes to stay in Australia until the end of November, 2019.

29. In this case the applicant is proposing to study a Certificate IV in EAL, Certificate IV in Marketing and Communication and the Diploma of Marketing and Communication more than four years after she first entered Australia. The Tribunal considers that if the applicant was committed to persevering with and completing such qualifications, she has already had every opportunity to do so. Put simply, the Tribunal does not consider this her academic progress to be that of a genuine student.

30. The Tribunal is not satisfied that the applicant isn’t simply now proposing further short, inexpensive courses in order to gain a student visa with the primary objective of maintaining ongoing residence in Australia.

31. Having regard to the applicant’s circumstances, including where she is at in her career, the Tribunal is not satisfied the study proposed will assist her to obtain employment or improve her employment prospects. The Tribunal considers the vocational courses proposed to be of marginal value to someone with her many years of experience.

32. In her original application to the Department, the applicant did not declare travel to any country other than Australia. There is nothing before the Tribunal to indicate that the applicant has experienced visa refusal or immigration issues in any of other country.

33. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: whether the applicant has sound reasons for not undertaking the study in China or that region, her specific economic circumstances, the applicant’s ties with Australia, 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.

34. 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 on student and associated bridging visas, the Tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence.

35. Having not provided additional information to the Tribunal as requested, the applicant is mostly relying on the strength of previous assertions made by her. In all the circumstances, the Tribunal does not accept the applicant’s assertions claiming to be a genuine temporary entrant.

36. 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).

37. 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.

38. 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

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

    P. Wood
    Senior Member