Wong (Migration)

[2017] AATA 3190

Wong (Migration) [2017] AATA 3190 (29 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sze Long Wong

CASE NUMBER:  1602469

DIBP REFERENCE(S):  BCC2015/3887731

MEMBER:Gabrielle Cullen

DATE:29 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 29 November 2017 at 1:07pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – genuine student – length of time in Australia – unsatisfactory course progression – low attendance rate – future career goals – reasons for studying in Australia – close and strong family ties in Hong Kong – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 572.223

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 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 to the Department of Immigration for the visa on 15 December 2015. The delegate decided to refuse to grant the visa on 9 February 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).

3. Movement records indicate that the applicant arrived in Australia on 17 December 2013 on a subclass 417 working holiday visa, which was extended to 17 December 2015. Information provided by the applicant indicates he worked on a farm during this period.  He applied for the visa to which this application relates on 15 December 2015.

4. Certificate of Enrolments attached to the applicant’s application refer to the applicant studying a Certificate II in Spoken and Written English from 10 February 2016 to 2 September 2016 and a Certificate III in Spoken and Written English from 19 October 2016 to 12 May 2017. To the Tribunal he has submitted a COE to study a Certificate III in Spoken and Written English from 15 November 2017 to 8 June 2018 and a Certificate IV in Spoken and Written English from 20 June 2018 to 18 January 2019.

5. The applicant in a statement to the Department indicated that his main aim in applying for the language school is so he can achieve his ultimate career objective which is to work as a specialist NVIDIA engineer. He claims to achieve this goal he needs to enhance his English communication schools. He refers to finishing his MGBM in Hong Kong in 2012. He claims the first language in Hong Kong is Cantonese and to be promoted he needs to improve his English. He claims he wishes to pursue his English in Australia as qualifications are internationally recognized. He claims with good English many job opportunities will open up for him. He claims once he has completed these short courses he will return to Hong Kong. He notes he is the only son and sooner or later he must return and look after his family. He claims most of his friends are in Hong Kong. He attached payslips indicating he is a shop manager.

6. The delegate decided to refuse to grant the visa on 9 February 2016. The delegate decided to refuse to grant the visas because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate, among other matters, was concerned that the applicant had not provided sufficient evidence of the relevance of the study to his academic and employment background.

7. On 26 February 2016 the applicant lodged an appeal to the Tribunal and attached the decision of the Department. On 19 October 2017 the Tribunal wrote to the applicant and invited him to attend a hearing on 14 November 2017. The letter, among other matters, requested the applicant provide an explanation of any gaps in his enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 572.223(1)(a) and asked him to provide a written statement addressing this issue by referring to Direction 53, which was attached.

8. The applicant submitted Certificate of Enrolments as noted above. He submitted a letter dated 26 October 2017 and an academic report from his education provider. The information indicates that the applicant is yet to successfully complete the Certificate II in Spoken and Written English. It indicates he had been enrolled in this course from 10 February 2016 to 2 September 2016 but did not achieve competency in 3 subjects. It indicates he retook the coruse from 2 November 2016 to 26 May 2017 and did not achieve competency in two of the same subjects. He redid the course partially from 28 June 2017 to 1 September 2017 and did not successfully complete one subject for a third time. The submission notes that the applicant is a hardworking student and since he began has maintained satisfactory attendance. It notes his attendance at 70%. The information provided advised that they had conditionally allowed him to move onto a Certificate III in Spoken and Written English with one assessment pending in the Certificate II course.

9. The applicant also submitted a statutory declaration outlining his continued enrolment in the Certificate II in Spoken and Written English, outlining his study history and that he had repeatedly been enrolled in the Certificate II in Spoken and Written English from 10 February 2016 to 1 September 2017.  He submits that he has made progress in his studies and now has the opportunity to advance to a Certificate III in Spoken and Written English. He indicates his ultimate goal is to establish his own software company in Hong Kong. He claims his short term plan is to continue studying English and than start TAFE courses in Software Engineering. He claims English is essential to his future, and software engineering is a global industry.

10. The applicant appeared before the Tribunal by video on 14 November 2017 to give evidence and present arguments. He was assisted with an interpreter in the Mandarin and English languages. His representative attended the hearing. The Tribunal raised with him that the matter before it is whether he meets the requirements of cl.572.223(1)(a). It outlined the section, the relevance of Direction 53 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.

11. As to his education in Hong Kong, he indicated he had only graduated from High School. He confirmed that he had studied English for 12 years at High School. The Tribunal asked whether English is an official language in Hong Kong and he said it is not. The Tribunal suggested that it was. As to his work in Hog Kong; he said he had worked as a software engineer.

12. He confirmed he came to Australia in 2013 on a working holiday visa; he said in exchange for food and accommodation he worked on a farm. As to other work undertaken in Australia, he said he had worked for a few months in a massage parlour. He said for the past 1 to 2 years while studying he has been supported by his mother. He said he has not looked for other work in Australia as he is focussing on his study.

13. He said he wanted to study in Australia, as he spent 12 years studying English in Hong Kong and did not improve.

14. He indicated his future career aim is in software engineering and to open his own firm. He said he wants to finish study his English and then study software engineering at TAFE WA and then return to open his own business. He said he plans to study English until 2019 and then begin software engineering.

15. As to courses successfully completed while studying in Australia since 2016, he said he has one module to obtain a Certificate II in Written and Spoken English. The Tribunal questioned his slow rate of progress and that he has been studying the same course from February 2016 to September 2017 and was yet to successfully compete it. It raised with him that it may indicate he is using the student visa program to maintain residence. He said for 12 years he studied English at school in Hong Kong and his English score was not more than 10 points. He said this has changed since studying in Australia and while he can’t speak English fluently he can reply and understand. He said for example before he began studying in Australia he could not understand questions such as “how old you are?” and now can understand what the Member is saying. He said in Hong Kong people speak Cantonese.

16. The Tribunal questioned whether he was a genuine student as his evidence is he is not working, yet his attendance rate as noted by the College in the information he submitted is 70%. The Tribunal raised with him that it makes it question whether he is a genuine student. He said in October 2016 an incident happened in Hong Kong and this has affected his mood. He said his mother had major surgery. He later said it was a hysterectomy, and when the Tribunal raised with him that this is a fairly common and quick operation, he said his mother haemorrhaged.

17. The Tribunal asked if he returned to Hong Kong; he said he did not. He confirmed he had not returned to Hong Kong since his arrival in 2013.

18. The Tribunal questioned this and raised with him that it may expect if his mood was so affected he could not attend school that it may expect he would return to Hong Kong. He said his father had an affair and then his mother attempted suicide. He said his mother was concerned not to interfere with his study in Australia and she wants him to finish his study as soon as possible. He said his sister has married and she cannot look after his mother. He said this is why his mood was affected.

19. The Tribunal asked for more detail as to his future career aim and why he wishes to study in Australia to achieve this aim. He repeated that his aim is to open his own software firm. He said he had had this dream to open his own software company since his application for a student visa. He said once he finishes the course he wants to enrol in a software course at TAFE. He said it is a mobile software program. He said he has looked into the courses and the Tribunal asked for the name of the course and he said he did not know the name and this is because of his poor English but it is in his phone. He said the course is 2 years long.

20. The Tribunal asked and he confirmed that he wishes to remain in Australia studying the English and software course until 2021. It raised concerns as to the genuine nature of his evidence as to why he is studying in Australia. It raised concerns why he was not working in the software area in Australia if this was his dream. It raised concerns if this was his dream why he would not continue working in the software company in Hong Kong, gaining valuable work experience, where English is widely spoken. It raised with him information indicates that there are many excellent English courses in Hong Kong and questioned why he would wish to spend 6 years studying in Australia.

21. It raised concerns as to his slow rate of course progression, wanting to spend 4 years studying English at a low level. He repeated that in 12 years of study in Hong Kong he achieved no progress. He said the learning environment is different in Hong Kong and high pressure.

22. The Tribunal asked why in his statement submitted to the Department as to his future career aim and why he is studying, he did he not mention wanting to open his own software company, rather it noted he indicated he wanted to return home after completing the short courses enrolled in and become a senior software engineer. It repeated information outlined in his statement to the Department. It raised with him that his evidence appears inconsistent; in response he said initially he wanted to make progress as a software engineer but now since the increase in house prices his mother intends to sell their home and support him in starting his own software business.

23. The Tribunal asked why he has not worked in software engineering in Australia if it is his aim to open his own business; he said because his English is not good enough.

24. As to family; he said his mother and sister are in Hong Kong. He does not know where his father is and he has no family in Australia. His evidence is his mother has property but he does not. He stated he has no military commitments in Hong Kong, nor any civil or political reasons which would act as a disincentive to return.

25. The Tribunal raised with him via the process outlined in s.359AA information included in the PRISMS records indicating the applicant was not enrolled as claimed, including in the Certificate II in Spoken English from October 2016 to November 2017. He was given until COB on Friday 17 November 2017 to provide the relevant COEs. The Tribunal advised that it has also contacted the education provider to ascertain whether he was enrolled in this period as claimed. The provider has since advised the applicant was enrolled in the Certificate II in Spoken and Written English on three occasions for the periods claimed. The Tribunal therefore accepts the applicant’s evidence in this regard and makes no adverse finding.

26. The Tribunal repeated its concerns in summary form and asked whether the applicant and/or his representative wished to add anything.

27. The representative indicated that the applicant’s plan had always been consistent that he wanted to work in the software industry. He submitted that although his intention was initially to work as an employee, his aspirations have changed and he wishes to open his own business. He submitted that the applicant was able to provide information as to where he wanted to work and had undertaken study to ascertain which course, the information which was on his phone. He submitted that despite his personal difficulties he had maintained good attendance. He submitted that education is paramount and culturally he could not have returned to Hong Kong.

28. The Tribunal questioned the applicant further on the difficulties in Hong Kong which he claims affects his mood and attendance; and why he did not return home, particularly as he had study breaks and Hong Kong was close.

29. The representative also submitted that the applicant has made good progress in his English learning as when he arrived he could not speak English. He submitted it is tough when one first arrives with little English and the applicant has tried his best to achieve the Certificate II. He said that now the applicant has a basis in English he will learn faster and it is always hardest in the beginning.

30. Following the hearing, the applicant and his representative made further submissions Additional to the evidence repeated above, he added that while the applicant’s sister currently cares for their mother, she will be married in a few years and will have to reside with her husband. He submitted that as the eldest male child in the family it is his cultural duty to take care of his mother.

31. He repeated that the applicant’s aim is to complete the Certificate IV in Spoken and Written English by January 2019, thereafter study TAFE courses in Software Engineering, specifically Mobile Software at Edith Cowan University which has a campus in the suburb of Joondalup where the applicant resides. He repeated that the applicant’s ultimate goal is to establish a software company in Hong Kong. He noted these plans were disclosed in his statutory declaration of 14 November 2017.

32. The representative referred to the applicant’s learning difficulties and attached as evidence his slow rate of progress in achieving the Certificate II in Spoken and Written English. He submitted that despite this he has continued to strive for improvement in his English. He repeated that his slow rate of progress is due to the stress and mental turmoil caused by his mother’s hysterectomy and subsequent haemorrhaging. He referred to the Tribunal’s comment at hearing that a hysterectomy is a common procedure and submitted that the Tribunal cannot conclude that it would not affect his mental state on the basis that the incident is common. He submitted that despite his learning difficulties, stress and mental turmoil the applicant has maintained a positive attitude towards his study and a satisfactory level of attendance.

33. He noted that the attendance rate of 70% was raised as an issue by the Tribunal but submitted that in light of the applicant’s stress and mental turmoil due to his mother’s procedure, he has maintained an adequate level of attendance. He submitted that the applicant’s education provider deemed his level of attendance satisfactory. He submitted that the applicant’s overall progression should be considered in light of his learning difficulties and personal circumstances and that despite his personal circumstances his progression is evidence he intends genuinely to study in Australia.

34. He referred to the concern as to the applicant’s lack of employment in software engineering in Australia and noted he rather wanted to concentrate on his academic study.

35. As to why he did not return home after his mother’s surgery, he noted that the applicant’s primary objective is to obtain the skills required to run his own software development business in Hong Kong and he fears his English language ability would suffer from stunted improvement if he were to return to Hong Kong. The representative submitted that this is particularly so as the applicant is already facing difficulties in relation to academic progress and therefore he must remain in Australia to achieve his gaol until his sister is married. He also submitted that as education and the acquisition of academic qualifications are paramount in the Chinese culture, it is not surprising that the applicant would opt to stay in Australia until he has achieved his academic gaols.

36. The representative submitted that the applicant’s proposed course of study in evidence provided at the hearing was neither vague nor inconsistent. He submitted that the applicant understands the importance of English ability in Chinese marketing and business development. He submitted the applicant must develop a sufficient level of English to learn the programming code required to advance his career in software development. He again outlined his study plan noting that the wants to commence a TAFE level software development course focussing on mobile software at the Joondalup campus at Edith Clown University after he finishes the Certificate IV in Spoken and Written English in June 2019. He submitted the applicant has demonstrated prior research and with regard to his TAFE courses has determined the specific institution and campus and the specific area of study. He noted that the Tribunal asked the applicant to recite the course he intended to study and would not let him look at the specific course saved on his phone. He submitted it would be unfair to find the applicant had a vague plan based on his inability to recite the course. He submitted the information as to the course at Edith Cowan University which he intends to study.

1. The representative submitted that his plans are not inconsistent with previous information as it is common for aspirations to evolve over time particularly from mere employment to business ownership. He submitted that at all times the applicant was focussed on a career in the software development industry and the fact the applicant has become ambitious does not equate to inconsistency rather a common progression of career goals.

2. The representative submitted the applicant has no family in Australia, previously worked in the software industry and has already established ties in that industry in Hong Kong. He resubmitted much of the information already submitted as well as a document outlining the use of English words in Chinese Marketing and an outline of the courses the applicant proposes to undertake at Edith Cowan University.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

4. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(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)     …

5. 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.

6. 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.

7. Having considered the applicant’s claims against all the factors specified in Direction 53, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

8. As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Hong Kong. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. The Tribunal accepts that courses in Australia are more highly respected and internationally recognised. The Tribunal accepts that he has close and strong family ties in Hong Kong, including his mother and sister. It accepts that as the eldest son he has close connections to his mother and that there is pressure on him to return if or as his sister is or will be married. It accepts he has no family connections in Australia. It accepts that these circumstances in Hong Kong are indicative of a person who is only a temporary entrant and wishes to return to their country.

9. The Tribunal also accepts that the applicant is currently enrolled in Certificates III and IV in Spoken and Written English from November 2017 to January 2019. It accepts since his application for a student visa he has been enrolled on three occasions in a Certificate II in Spoken and Written English and has successfully completed all but one subject in this course. It accepts he has been continuously enrolled since his application for a student visa.

10. However the successful completion of subjects in the Certificate II in Spoken and Written English and his continuous enrolment since his application for a student visa are but two of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.

11. The above information indicates the applicant has been in Australia wishing to stay as a student since his application in December 2015. Previously he arrived in 2013 on a working holiday visa. His evidence is he wishes to continue to study English until 2019 and then complete a further two year software course until 2021. The Tribunal views as of concern his wish to remain in Australia studying for 6 years English and vocational software courses. While not necessarily indicative that a person does not wish to remain in Australia temporarily, it is of concern and one of the considerations.

12. The Tribunal views as significant that since his application for a student visa he has not successfully completed any courses. His evidence is he has been enrolled on three occasions in the short term Certificate II in Spoken and Written English and is yet to successfully complete it as he has failed one subject three times. While the representative referred to the applicant’s learning difficulty, no medical or independent evidence has been submitted as to this. Rather, the representative referred to as evidence of his learning difficulty his slow rate of progression in the Certificate II in Spoken and Written English. The Tribunal is of the view if his slow rate of progress was as a result of a learning difficulty there would be independent evidence of this outside of the applicant and his representative. The Tribunal therefore does not accept his slow rate of progress is as a result of a learning difficulty rather that he is using the student visa to maintain migration.

13. Further, despite claiming that he is only in Australia to study and that is why he does not work as he is supported by his mother and only having to partially repeat the Certificate II by doing only two subjects from June 2017 to September 2017, his education provider advised on 26 October 2017 that his overall attendance rate is only 70%. His low attendance rate of 70% and the lack of successful completion of any course in nineteen months of study is indicative of a person using the student visa to maintain residence rather than as a genuine student. When raised with the applicant he referred to his low mood, turmoil and stress as a result of his mother’s health problems, divorce from his father and attempted suicide as reasons. His representative also indicated that his attendance rate was satisfactory to the education provider. However, the Tribunal does not accept these as reasons for his low attendance and slow course progression. Firstly, there is no medical or psychological evidence to support his mood was so affected that he could not attend, which the Tribunal expects there would be if he is as serious as to his study as he claims. Further, the Tribunal is of the view that if his mood and mental state was so affected by his mother’s condition that he could not attend, it is of the view he would have returned home to Hong Kong to be with her. His evidence indicates he has not departed Australia since his arrival in 2015. In response he said that his mother wanted him to focus on his studies and the representative indicated that this is what he culturally should do and his study his paramount. The Tribunal has difficulty accepting this as true, as the evidence he has submitted indicates there were study breaks of two months and then one month between the courses. It also does not accept a short return to Hong would stunt his learning in English as a reason he did not return. While it accepts learning is important in the Chinese culture, it has difficulty accepting that if the applicant was in a mental state of turmoil and stress where he could not attend or achieve course progression due to his mother’s situation he would not return in the holiday periods. While a 70% attendance rate may be deemed satisfactory by the education provider, the Tribunal questions this low rate of attendance against his claims of his genuine intention to study and that studying is paramount, particularly when at the times outlined above he was only undertaking the course partially. On the evidence before it the Tribunal does not accept his attendance and course prerecession was affected by his low mood or turmoil or stress or for any of the reasons he claims. His low attendance of 70% and slow course progression undermines his claim to be a genuine student.

14. The Tribunal also views as of concern his inconsistent evidence as to why he is studying in Australia and his future career aspirations. In his statement to the Department received 18 January 2016 the applicant indicated he worked as a software technician in Hong Kong only to realize the importance of English and that he cannot be promoted without English as reason why he wishes to study. He claims as a result he decided to pursue English studies in Australia. He added having English would provide him with more opportunities. He indicated he would return home after completing the short courses. The Tribunal notes that at that time he was enrolled to study English until February 2017, being a Certificate II and III in Spoken and Written English. However, in contrast, at the Tribunal hearing he indicated that he wishes to study English in Australia and subsequently software so he can return and open is own software company. When asked when he decided this is what he wanted to do; he indicated since his application. However, as raised with the applicant, there is no indication in his statement of January 2016 as to such aspirations rather it was to be promoted. In response he indicated that property prices have increased in Hong Kong and his mother has indicated she will sell her home and provide money for the applicant to start his own business. The representative indicated that his aspirations had changed and the applicant has been consistent as to his aim to work in the software area. The Tribunal does not accept these responses as explaining the applicant’s inconsistent evidence as to his future. While it accepts he has been consistent as to wanting to return to work in the software area, it views as inconsistent his reasons for wanting to and his future career aim. It notes at the hearing he stated that he had had the career aspiration of opening his own business at the time of application, which is not consistent with his statement to the Department. This adds to the finding the applicant is not credible as to why he is studying in Australia and his career aspirations.

15. While not solely determinative, the Tribunal has concerns why the applicant would remain studying in Australia English, when the independent evidence indicates Hong Kong has a wide array of English language tuition where the applicant could also work or obtain a job in a software company as he did before, gaining valuable experience to assist his future career aim. It notes the independent evidence indicates that English is an official language in Hong Kong and widely spoken. While it accepts education in Australia is more highly respected and he is submerged in an English speaking country, it views the time he wishes to spend studying English in Australia of 6 years and not working gaining experience and learning in Hong Kong as inconsistent with his career aim.

16. In making this finding it has considered his evidence that he wishes to study software at TAFE and that this information was on his phone. After the hearing he submitted evidence via his representative as to the TAFE course he has researched and proposes to study as indicating his genuine intention. However, the Tribunal views as of concern that despite claiming he will enrol in software courses in TAFE he has submitted evidence of studying a course at Edith Cowan University at the Joondalup campus which the information he has submitted indicates can be studied as part of a Bachelor of Computer Science and Bachelor of Information Technology. The information he has submitted as to the courses he has researched and proposes to study is not a TAFE course and is inconsistent with his evidence at hearing. This undermines his claim as to why he wishes to study in Australia and as to the credibility of his evidence.

17. For all the reasons outlined above the Tribunal does not accept the applicant is a credible witness as to why he is studying in Australia. The concerns raised above lead the Tribunal to not be satisfied that he wishes to undertake the remainder of the Certificate II, III and IV in Spoken and Written English for any of the reasons he claims or the proposed software courses. Rather it is of the view he is using the student visa program to maintain residence in Australia.

18. As to the applicant’s immigration history, there is no evidence before the Tribunal he has previously travelled to Australia or anywhere else before 2013, or applied for a permanent visa or other visa to Australia or other countries, other than applying to Australia for student visas.

19. In making the decision the Tribunal has considered all the evidence before it , including that he is currently enrolled, has previously completed the subjects in the Certificate II in Spoken and Written English, attended in the manner claimed, worked as a software engineer in Hong Kong and been consistent as wanting to return to that industry, has much stronger family ties in Hong Kong than Australia and that his mother is or will be alone and all the other matters he has raised; however for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.

20. The Tribunal is therefore not satisfied that he is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence.

21. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 53, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

22. 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 he intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

23. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. 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

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

    Gabrielle Cullen
    Member