WU (Migration) - [2019] AATA 3779

WU (Migration) [2019] AATA 3779 (8 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss YI WU
CASE NUMBER:  1616767
DIBP REFERENCE(S):  BCC/2016/1057980 bcc2016/1057980
MEMBER:Michael Ison
DATE:8 February 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 08 February 2019 at 2:23pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – genuine temporary entrant – courses unrelated – study history – incentive to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2 cls 572.223, 572.231
CASES
Saini v Minister for Immigration and Border Protection [2015] FCCA 2379
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 on 28 September 2016 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 9 March 2016 to undertake study in Australia. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student 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), or whether the applicant has the support of the relevant Minister (Subclass 576).
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found the applicant completed business courses to Bachelor level, then enrolled in massage courses, which was unrelated to her previous study, ceased studying after two months, enrolled in a Certificate III level business course which was a lower level course than qualifications she already held, cancelled that enrolment and then re-enrolled in massage courses, a sequence of events the delegate found indicated the applicant is using the Student visa program to maintain residence in Australia rather than due to a genuine interest in study and academic progress. The delegate found this further study was of limited value to the applicant’s future to assist in her grandparent’s massage business in China and that the applicant only recommenced study to obtain a visa rather than due to a genuine interest in this area of study and overall academic progress. The delegate also found the applicant did not provide any evidence of substantial ties to her home country leading the delegate to conclude that the applicant’s incentive to remain in Australia far outweighed her incentive to return home.
The applicant appeared before the Tribunal on 9 February 2018 and 29 January 2019 to give evidence and present arguments. The Tribunal hearings were 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 attended both hearings.
On 27 November 2018 the Tribunal sent the applicant letters:
·under s.359(2) of the Act requesting the applicant update the Tribunal on her circumstances since the last hearing;
·under s.359A of the Act requesting the applicant respond to or comment on potentially adverse information.
The potentially adverse information was that the Tribunal obtained updated information from the Department’s Provider Registration and International Student Management System (PRISMS) database and movement records database on 7 November 2018. Copies of the updated reports were provided to the applicant with the Tribunal’s letter.
The Tribunal’s letter sent under s.359A of the Act explained the relevance of the updated information as being that the information in PRISMS recorded the applicant’s course of study at the time of the Tribunal hearings, a Diploma of Remedial Massage, as “finished” on 23 October 2018 indicating the applicant had completed her study in Australia but the applicant’s movement records indicate she remained in Australia, which may indicate she is using the Student visa program to maintain residency in Australia rather than to genuinely stay in Australia temporarily to study.
The Tribunal’s s.359A letter also noted that at the time of the letter it appeared the applicant was not enrolled, or appeared to have an offer of enrolment, in a registered course of study which indicates she does not meet the primary criteria for the grant of a Student visa under cl.572.231(a). The letter clarified that this was not the ground on which the delegate refused to grant the applicant a Student visa but is a time of decision criteria.
The Tribunal’s s.359A letter explained the consequences of the Tribunal relying on the updated information would be:
·In the case of the applicant having finished her studies in Australia, the Tribunal could find the applicant does not intend to stay in Australia temporarily to study as a student;
·In the case of the applicant not being enrolled or having an offer of enrolment, the Tribunal would find the applicant does not meet cl.572.231(a); and
·The above information would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review.
The applicant responded to the Tribunal’s s.359A and s.359(2) letters on 7 December 2018 with a two page submission from the applicant’s registered migration agent, a one page confirmation of enrolment for a Diploma of Remedial Massage at Malvern International College from 24 October 2018 to 28 February 2019 and a copy of a medical report from China and a certified translation into English of that report in relation to the applicant’s grandfather in China.
The migration agent’s submission advised the Tribunal that:
The applicant married on 8^th May 2018, her husband was her workmate, then became good friends. They fall in love and her husband wants her to accompany him and live together, then can look after each other, he is an Australia citizen. The applicant currently lodged partner visa.[1] (sic)
[1] Tribunal file, folio 71.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
As the applicant’s current course of study is a Diploma of Remedial Massage, the relevant subclass in this case is Subclass 572 Vocational Education and Training Sector.
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)…
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.
The Tribunal invited the applicant to a second hearing on 29 January 2019 so the Tribunal could become fully aware of the applicant’s present circumstances and intentions.
The applicant is a 27 year old Chinese national who arrived in Australia on 17 June 2009 as a 17 year old on a Student (Subclass 571 School Sector) visa to complete her secondary schooling, which she did by December 2010, and pursue further study.
In relation to the applicant’s circumstances in China the applicant told the Tribunal at the first hearing she is an only child whose parents and grandparents remain in China and she will return to her parents’ house, which they own, providing a comfortable standard of living in China compared to others, when she completes her study in Australia. The applicant told the Tribunal there is no reason (such as military service commitments or social or civil unrest in China) that would cause her not to return to China. The Tribunal accepts this evidence and finds these considerations do not present as a significant incentive for the applicant not to return to China.
There is no information before the Tribunal, given the applicant’s earnings in Australia as discussed below, compared to the relatively comfortable life she presented to the Tribunal she has in China, which indicates the applicant’s economic circumstances would act as a significant incentive for her not to return to China. The Tribunal finds the applicant’s economic circumstances are not a significant incentive for her not to return to China.
In a submission to the Department the applicant stated her reasons for studying in Australia:
Australia has better education condition than my home country and I want to study abroad to widen my knowledge and strengthen the ability to take care of myself. Study in Australia is a good chance to enrich my life for I am active toward my studying.[2] (sic)
[2] Applicant submission submitted on 6 May 2016, Department file, folio 57.
The Tribunal accepts this evidence that these are the applicant’s genuine views. There is no information before the Tribunal whether the applicant could have studied similar courses in China. The Tribunal finds that at the time of the first hearing the applicant had reasonable motives for studying in Australia and her personal ties to China presented as a significant incentive for her to return to China.
In relation to the applicant’s circumstances in Australia, at the time of the first hearing the applicant told the Tribunal she lived in Pascoe Vale on her own, paying AU$300 a week in rent and is financially supported by her parents but has worked various part time jobs, generally in the hospitality industry, providing income of up to AU$250 per week, but was not working at the time of hearing.
The applicant told the Tribunal she is not a member of any clubs or associations but does attend Anytime Fitness usually twice a week. The applicant told the Tribunal most of her friends have already returned to China and she socialises online using the internet. The applicant’s evidence is she is not religious and would like to return to China to reunite with her relatives, where she thinks she will earn more than she can earn in Australia.
The Tribunal informed the applicant of potentially adverse information in her movement records in accordance with the process required by s.359AA of the Act. The information was that since July 2009 the applicant has returned to China only three times in 2011-2012, 2013 and 2015 for just over three months in total. The Tribunal explained the relevance of the information as being that the Tribunal could form the view that the applicant does not have significant incentive to return to China and continues to enrol in courses in Australia to maintain residency here. The Tribunal also explained the consequence of the Tribunal relying on this information is that it would lead the Tribunal to find the applicant is not a genuine temporary entrant into Australia to study which would be the reason, or part of the reason, for affirming the decision of the delegate that is under review.
The Tribunal offered the applicant additional time to consider the information before commenting upon responding to it. The applicant did not request additional time.
The applicant told the Tribunal she had returned to China only three times since arriving in Australia because in 2010 she lost her passport and got a new one in December 2010 and in 2012 her mother came to Australia to visit for less than three months. The applicant said she visited family each time she returned to China and has not been to any other countries other than Australia. The applicant told the Tribunal she has maintained daily contact with family and friends in China through internet communications.
The Tribunal accepts the applicant’s evidence of her travels and finds that there is no evidence before the Tribunal of the applicant having breached her Australian visa conditions, of previously having an Australian visa cancelled or refused or having any adverse immigration findings in any other country. The Tribunal accepts that family relationships can be maintained using internet communication, but is concerned that the applicant has done so over a long period with few visits to or from home. This indicates to the Tribunal that the applicant is well settled in Australia and finds relying on internet based communications with her family in China acceptable, which in turn means the applicant may have reduced incentive to return to China.
At the second hearing the applicant told the Tribunal, consistent with the written submission of her migration agent prior to the hearing that she had returned to China on 4 October 2018 to visit her 90 year old grandfather who had been diagnosed with two types of cancer and was in hospital and at risk of passing away. The applicant returned to Australia on 28 October 2018 to resume her studies and told the Tribunal her grandfather had recovered but his cancers are not curable.
The Tribunal accepts from the applicant’s oral evidence that she is close to her grandfather. The Tribunal finds his ongoing illness adds to the applicant’s incentive to return to China upon completion of her studies in Australia.
As noted above, since the first hearing the applicant also married an Australian citizen. The Tribunal discussed this in detail with the applicant during the second hearing. The applicant explained to the Tribunal that she met her husband through working as a cashier at Shang Hai Station Noodles and Dumpling restaurant at Southern Cross station in May 2017.
The Tribunal discussed with the applicant why she did not mention her relationship with her now husband at the first hearing when they married only three months after the hearing. The applicant told the Tribunal her husband owned the restaurant she worked at and they fell in love, taking a trip in Easter 2018 (1 April 2018) and decided to get married during that trip, which they did on 8 May 2018. The applicant’s evidence is her husband sold this restaurant and is opening a new restaurant in Docklands, which is currently being fitted out, which the applicant expects to open in March or April 2019.
As the Tribunal is aware a Notice of Intention to Marry must be filed 30 days prior to a marriage ceremony the Tribunal asked the applicant when she filed such notice. The applicant could not recall. The Tribunal makes no adverse finding against the applicant in this regard as it is possible the Notice was filed after they returned from their Easter trip and before their marriage occurred on 8 May 2018, just over one month later.
The applicant told the Tribunal that she also applied for a Partner (Provisional) (Subclass 309) visa while she was in China in 2018, a visa that can only be applied for overseas. This visa enables the holder to live in Australia temporarily and is the first step to obtaining a Partner (Migrant) (Subclass 100) visa which grants the holder permanent residency in Australia. The applicant told the Tribunal she has not received a decision in relation to her application for the Partner visa yet.
The applicant told the Tribunal it remains her plan to return to China at the end of her studies in February 2019 to visit her grandfather. The applicant said her husband may go back to China with her but will need to return to Australia to open the restaurant. The applicant hopes for a favourable decision in relation to her application for a Partner visa in which case, after a period of time with her family and in particular her grandfather in China, she would return to Australia to support her husband and work as a cashier and waitress in the restaurant. Pending the decision on her Partner visa application the applicant said she may return to Australia after her studies on a Visitor (Subclass 600) visa, if she can.
The Tribunal explained to the applicant during the second hearing that a Student can be a genuine temporary entrant and have other plans, including applying for other visas to stay in Australia temporarily or even permanently. The Preamble to Direction No. 53 provides:
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to enter and remain in Australia temporarily, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period or permanently.
The applicant’s migration agent, in a written submission dated 1 February 2018[3], referred the Tribunal to the Federal Circuit Court decisions of Khanna & Ors v Minister for Immigration & Anor[4] and Jung v Minister for Immigration & Anor[5] in the following terms:
… the court [in Khanna] held that an applicant can satisfy the requirement to be a genuine temporary entrant even if they have a desire or wish to remain in Australia following the completion of their studies if a viable pathway should become available. In other words, according to decision in Khanna, a person can have “dual” or “overlapping” intentions and holding these two intentions does not disqualify a person from being characterised as a “genuine” temporary entrant. (sic)
… it was found [in Jung] that a person can simultaneously hold seemingly “inconsistent” or “contradictory” intentions with respect to remaining in Australia and yet nonetheless meet the genuine temporary entrant criterion. The Court did not see anything wrong with holding two seemingly “contradictory” or inconsistent” (sic) plans for the future.
[3] Tribunal file, folios 35 to 37 at 36 (back).
[4] [2015] FCCA 1971 (20 July 2015)
[5] [2015] FCCA 1096 (4 May 2015)
The Tribunal has considered and had regard to these cases.
The Tribunal also notes that in the subsequent Federal Circuit Court decision of Singh[6] it was found that Khanna was incorrectly decided, even though the Court in Singh found it could have distinguished Khanna on the facts. In Singh the court found the relevant question was not whether the applicant intended to return home at the end of the validity of their visa but whether the applicant intends to come to Australia to study and then return home.
[6] Singh v Minister for Immigration and Border Protection [2015] FCCA 2451 (11 August 2015)

In Saini[7] the Federal Court also expressly disagreed with Khanna:
[29] That does not mean that the statement in the “Preamble” is necessarily inconsistent with cl 572.223(1)(a), for that statement speaks of a “potential for this intention to change over time”. If there is evidence that, at the time of decision, an applicant harbours an intention to seek employment or undertake further study here that may well mean, in conjunction with other factors referred to in cl 572.223(1)(a), that a decision-maker is not satisfied that the visa-applicant “intends genuinely to stay in Australia temporarily”.
[30] Equally that an applicant for a Student visa may, at the time of decision, hope, for example, to undertake post-graduate study if successful in respect of the study for which the particular visa is sought, but nonetheless still leave once any further study is completed, it may be open to conclude that the visa-applicant does still have, at that time, an intention, “genuinely to stay in Australia temporarily”. The Regulations do provide for other classes of visa which may be sought on-shore so as to permit the holder of a Student visa to seek a visa which would permit a longer stay for further study or for employment. That means that, after the time of decision, there is potential for an intention to change, depending on later circumstances. It also means it is possible for there to be, at the time of decision, an intention to seek some further visa which will nonetheless lead to nothing more than further temporary residence. But if there is a settled intention, at the time of decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention “genuinely to stay in Australia temporarily”. What is required is an evaluation by the decision-maker of intention as at the time of decision.
[31] I was also taken to a statement in the explanatory statement issued by the Minister (Select Legislative Instrument 2011, No. 199), in respect of the Migration Amendment Regulations 2011 (No 6) (Cth) by which, materially, cl 572.223(1) came to be in the form found at the time of the Tribunal’s decision. It is there stated (Attachment C, page 8), “The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia, study, and then return home.” I was initially attracted to this as an accurate statement of the effect of cl 572.223(1) but, for the reasons given in the preceding paragraph, the prescription, “and then return home” (emphasis added) is too restrictive. It is possible, at the time of decision, to harbour an intention to seek some other visa which would extend residence as a student for a further, finite period and still “intend genuinely to stay in Australia temporarily”.
[32] It necessarily follows from this that I respectfully disagree with the views expressed by Manousaridis FCJ in Khanna… .
[7] Saini v Minister for Immigration and Border Protection [2015] FCCA 2379 (29 July 2016)
The concern the Tribunal has with the reasoning in Saini is that decision appears to ignore the use of the word ‘permanently’ at the end of the section of the preamble quoted above. The decision only allows for further temporary visas even though the preamble states that an applicant’s intention can change over time to use lawful means to stay in Australia temporarily or permanently.
The Tribunal accepts the applicant’s evidence of her circumstances in Australia and finds that the applicant presented as having strong incentive to remain in Australia having lived here for over nine years. The applicant’s stated intention is to support her Australian citizen husband and she intends to do this through lawful means by having applied for a Partner visa or she says she may, pending the decision on her Partner visa application, apply for a Visitor visa to visit her husband in Australia after she has returned to China.
In the Tribunal’s view the applicant has a settled intention at the time of this decision to seek a visa, having applied for a Partner visa that will lead (if granted) other than to temporary residence in Australia and that intention, on the applicant’s own evidence, is not consistent with an intention ‘genuinely to stay in Australia temporarily’.
The Tribunal finds that the applicant does not have a genuine intention to return to China at the end of her studies to live with her family or take up a role in her uncle’s clinic. On the applicant’s evidence she may do this – return to China and work in her uncle’s clinic – but only first if she cannot continue to reside and study in Australia and secondly only for a short period of time.
The applicant’s specific evidence is that her husband, an Australian citizen, has a new business to open and operate in Australia and the applicant intends to return to China for a short period if she is not granted a Student visa to undertake further study in Australia. The applicant then intends to return to Australia to support her husband, her intention being to do so permanently in Australia through being granted a Partner visa and eventually permanent residency. Even if she is not granted a Partner visa the applicant intends to return to Australia through other means such as being granted a Visitor visa.
These findings could be fatal to the applicant’s application before the Tribunal. However, given the wording of the preamble, The Tribunal finds that the applicant’s intention to use lawful means to potentially obtain permanent residency in Australia through a Partner visa, in her specific circumstances, should not be fatal to her application. The Tribunal makes no adverse finding against the applicant in her particular circumstances arising from the applicant having applied for a Partner visa.
The applicant’s evidence is she will return to China if she has to i.e. if she is not granted a Student visa and a decision has not been made on her Partner visa. The applicant will then seek to return to Australia, on the Tribunal’s view of her evidence, with an intention to reside in Australia permanently. However, the applicant’s evidence was consistent that she would comply with Australian migration law. It may be that the applicant is not granted a Partner visa or a Visitor visa and cannot return to Australia, in which case she would be separated from her husband and they would need to revise their plans. These are not matters on which the Tribunal can make findings as they are too speculative.
Since her arrival in Australia the applicant’s migration agent submitted the applicant studied the courses set out below:[8]
[8] Where the Tribunal has evidence to support the applicant’s course completion claims, such as a certificate of completion or enrolment, those courses are marked with a hash tag (#).
·General English – completed December 2009;
·Secondary School Year 11 – completed December 2010;
·Foundation Studies (Business) – incomplete June 2011;
·Certificate III in Business Administration – completed December 2011 #;
·Diploma of Business – completed March 2013 #;
·Advanced Diploma of Business – completed February 2014 #;
·Bachelor of Business – completed March 2016 #;
·Certificate IV in Massage Therapy – completed August 2017 #; and
·Diploma of Remedial Massage – studying since August 2017 #.
During the first hearing the Tribunal informed the applicant of potentially adverse information in her PRISMS record in accordance with the process required by s.359AA of the Act. The Tribunal provided the applicant with a copy of her PRISMS record during the hearing and explained to the applicant what PRISMS is and how the information in it is compiled. The Tribunal particularised the information in PRISMS as showing that the applicant had completed up to seven courses since arriving in Australia in 2009 but her enrolment in a further nine courses had been cancelled. The Tribunal explained the relevance of this information as being that the Tribunal could form the view that the applicant is not studying to progress academically but is maintaining enrolment in courses to prolong her residency in Australia. The Tribunal also explained the consequence of the Tribunal relying on this information is that it would lead the Tribunal to find that the applicant is not a genuine temporary entrant into Australia to study but is using the Student visa program to maintain ongoing residence in Australia. The Tribunal explained to the applicant this would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate.
The Tribunal offered the applicant additional time to consider the information in PRISMS before commenting upon or responding to it. The applicant did not request additional time and the Tribunal discussed her academic progress in Australia with the applicant in detail.
The applicant initially enrolled in Foundation Studies in Art, Design and Architecture and a Bachelor of Architectural Design in 2011. The applicant told the Tribunal she was interested in architecture at the time and was inspired by all the beautiful buildings at the Royal Melbourne Institute of Technology but after commencing classes realised she could not draw to the technical level required and did not feel she had the creativity required and so cancelled those enrolments in February 2011 and enrolled in Foundation Studies (Business). The applicant’s explanation for these enrolments and their subsequent cancellation was not very convincing given the very essence of the architectural design studies course is to be able to draw designs, usually using computer programs. When the Tribunal discussed this with the applicant she responded that students would draw on their iPads.
The applicant then completed her Certificate III, Diploma, Advanced Diploma and Bachelor studies in Business sequentially but had another course cancellation when she changed from Bachelor of Business (Accounting) to Bachelor of Business at the same education provider, which did not cause a significant delay to her studies.
The applicant’s initial enrolment in the Certificate IV of Massage Therapy Practice was cancelled on 23 June 2016 and her initial enrolment in a Diploma of Remedial Massage was cancelled on 3 August 2016. The applicant told the Tribunal that she found out the Certificate IV course was not an approved course only after her enrolment in it. The applicant’s migration agent submitted to the Tribunal that the applicant’s education provider at the time changed her enrolment to a Certificate III in Business without the applicant’s knowledge and the delegate’s finding in relation to this enrolment was unfounded.[9] The applicant then changed education providers and enrolled in a Certificate IV in Massage Therapy, which was an approved course. This delayed the applicant’s studies by six months.
[9] Migration agent submission to the Tribunal dated 1 February 2018, Tribunal file, folios 35 to 37 at 36.
The applicant completed the Certificate IV and at the time of the first and second hearings was studying a Diploma of Remedial Massage. At the time of the first hearing the applicant was due to complete the Diploma on 23 October 2018. At the second hearing the applicant told the Tribunal she became aware of her grandfather’s illness in September 2018, after her parents had tried to hide the news from her, and subsequently arranged her return to China for 4 October 2018.
The applicant told the Tribunal she had not completed her Diploma at that time as she had not completed the practical requirements of the course. The applicant told the Tribunal that she needed to receive and massage 80 clients who provided feedback that her receipt and treatment of them was acceptable. The applicant showed the Tribunal 12 feedback forms with 10 questions with 1 to 5 ratings and an open comments section. The forms the Tribunal inspected all provided very positive feedback on the applicant with most ratings at the most positive (i.e. 5). The applicant told the Tribunal she had received some negative feedback and assessments from clients initially, in part because she did not have extensive work experience in massage businesses like many other students and as a result still has to achieve 20 additional clients who provide acceptable feedback on her massage services. The applicant told the Tribunal she expects she will finish her course by the due date of 28 February 2019.
At the first hearing the applicant told the Tribunal the value of her study to her future was that she intended to return to China to work in a traditional Chinese medicine clinic established by her grandparents who were doctors in China and providers of traditional Chinese medicine but had retired and the clinic is now operated by her uncle. She planned to assist her uncle in the operation of the clinic, primarily as a masseur, and learn from her uncle and grandparents and then eventually open her own business with her grandparents introducing clients to her or taking over her uncle’s business if he retires. The applicant told the Tribunal after completing her business studies she wanted a practical skill and her family thought massage provided good opportunities because of the family business and because massage is popular in China.
The Tribunal discussed the delegate’s view that the study fields of business and massage were not related. The applicant disagreed with the delegate and told the Tribunal that her business studies, whilst theoretical, were important to her being able to eventually open and manage her own massage business. The applicant asked the Tribunal at the first hearing to allow her to complete her Diploma studies as she believes not many people in China have that qualification in massage and she believes that qualification will help her to attract clients.
The applicant told the Tribunal she has only low expectations of the remuneration she would earn initially back in China but expects that as she accumulates experience at her uncle’s clinic and has her own business or helps expand her uncle’s business she will earn more. Her evidence is she will earn more in China than she can in Australia using her qualifications obtained in Australia. The Tribunal accepts this evidence.
At the second hearing the applicant told the Tribunal her plan now is to complete her Diploma studies whereupon she would like to do additional study in acupuncture or similar services. The applicant told the Tribunal if she cannot stay in Australia to undertake further study she will return to China to help her uncle in his clinic and to be with her grandfather, even if she is granted a Partner visa, before returning to Australia to support her husband. The applicant told the Tribunal she will support her husband in Australia including by working in the restaurant as a cashier and waitress.
The Tribunal accepts the applicant’s evidence in relation to her course completions and cancellations. However, the Tribunal was not convinced by the applicant’s evidence of the value of her initial study to her future given her plans at the first hearing or her proposed further study at the second hearing.
Direction No. 53 specifically provides that decision makers such as the Tribunal should allow for reasonable changes to the applicant’s career or study pathways. The applicant now intends to stay in Australia to study acupuncture or a similar course or, if she cannot, to return to China for a period before returning to Australia to be with and support her husband including by taking up a role in her husband’s restaurant when it opens. In those circumstances it is difficult for the Tribunal to discern what value the applicant’s proposed further study will have to her future given her current intentions and career plan.
The applicant on her own evidence has completed five years of business studies to Bachelor level and undertaken two years of massage therapy studies to Diploma level at significant financial cost. The applicant’s last two massage courses cost over AU$14,000[10] and the course fees for the Bachelor course alone cost in the tens of thousands of Australian dollars. Then there is the additional personal cost in terms of time away from family and friends. At the time of the second hearing the applicant has been in Australia for just short of 10 years and has been studying at the post-secondary school level since the start of 2011.
[10] Overseas Student Confirmation of Enrolment certificates at Tribunal file, folio 40 (front and back).
Having studied at the post-secondary school level in Australia for over eight years the applicant has a reasonable course completion rate of two Certificate courses, one (nearly two) Diploma course, an Advanced Diploma course and a Bachelor degree. However, the Tribunal finds that this amount and level of study exceeds what the applicant reasonably would have required to take up a position in her uncle’s clinic and to eventually establish her own massage business in China, as was her initial plan or to give effect to her current plan to assist her uncle for a time before returning to Australia to support her husband.
The Tribunal does not accept the applicant’s evidence that she needs a Diploma level qualification in massage to attract clients in China when she will be working in a well-established traditional medicine based clinic with an existing clientele.
The Tribunal also does not accept the applicant’s evidence that she needed to study business studies to the Bachelor degree level to be able to assist in her uncle’s clinic or eventually successfully take-over the clinic or establish her own clinic.
The applicant’s evidence is she wants to do further study but the Tribunal does not accept that this study will be of benefit to help the applicant obtain employment in China when she has a guaranteed position in her uncle’s traditional medicine clinic and her plan now is to only support her uncle for a period of months before returning to Australia to support her husband, subject to the outcome of her Partner visa application.
The Tribunal finds that the applicant studying initially architecture, then business, then massage and now wanting to undertake further study in Australia has not been the study history and plan of a genuine student staying in Australia temporarily and studying to obtain qualifications that will assist them to obtain employment or improve their employment prospects back home. The Tribunal finds in the applicant’s circumstances her study history and evidence reflects an intention and desire to stay in Australia for as long as possible and she is therefore using the Student visa program to maintain ongoing residence in Australia.
The Tribunal finds that the applicant’s stated intention of studying acupuncture or a similar course after completing her current course reflects a desire to remain in Australia pending the outcome of her Partner visa application, rather than a genuine desire to study and progress academically. If granted a Student visa for such further study, the applicant would be able to return to China to visit her family and grandfather, but reside in Australia whilst undertaking study that the Tribunal has found would be of no discernible value to her current plans for her future.
The applicant now has strong incentive to remain in Australia to accompany and support her husband and to obtain permanent residency in Australia. In the Tribunal’s view that incentive outweighs her significant incentive to return home to be with family, particularly her grandfather to whom the applicant is obviously close.
However, the applicant is pursuing her plans to accompany and support her husband in Australia through lawful means, by applying for a Partner visa. As is noted in the Preamble to Direction No. 53, this does not automatically exclude the possibility that the applicant is a genuine temporary entrant into Australia and the Tribunal makes no adverse finding against the applicant arising from her application for that visa.

At the end of both the first and second hearings the Tribunal asked the applicant and her migration agent whether there were any other matters relevant to the applicant’s application that they wished to bring to the Tribunal’s attention. At the end of the first hearing the applicant’s migration agent made detailed submissions, mainly about the applicant’s PRISMS record, which the Tribunal has taken into account in its reasons above. The applicant asked for a chance to finish her study in October 2018 and then return to China to look for a job. At the end of the second hearing the applicant’s migration agent submitted that the applicant fulfils the genuine temporary entrant requirement and requested a favourable decision, expressing his concern for the impact of an unfavourable decision on the applicant’s marriage. The applicant indicated in her final submission she wishes to complete her study but if she cannot she will return to her grandfather in China before returning to Australia to support her husband. The Tribunal has considered these submissions in its reasons above.
The Tribunal has found the applicant is not a genuine temporary entrant into Australia to study because of her study history and the lack of value of much of the applicant’s study to her plans at the time and her current plans, including her intention to undertake further study in Australia.
For these reasons, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Ison
Senior Member