Wu (Migration)

[2018] AATA 3184

Wu (Migration) [2018] AATA 3184 (27 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Di Wu

CASE NUMBER:  1701317

HOME AFFAIRS REFERENCE(S):           BCC2016/2293028

MEMBER:M. Edgoose

DATE:27 July 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 27 July 2018 at 1:53pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – Holder of multiple student visas – No current course enrolment – Gap in study – Course level of difficulty – Breakup with boyfriend – Use of visa program to maintain ongoing residential status – Practice and procedure – Lost entitlement for a hearing  – Decision made on review – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360,363A, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.211, 500.212

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 25 January 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 7 July 2016. 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 visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. On 12 April 2018 the applicant was invited under s.359(2) of the Act to provide information about his proposed course of study and his entry to stay in Australia as a student. The applicant was informed that if the Tribunal did not receive the information by 26 April 2018, that the Tribunal may make a decision on the review without taking any further action to obtain the information.

5. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.

8. 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?

9. 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.

10. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

11. The applicant did not provide any information to the Tribunal in regard to this matter and did not respond to the invitation to provide information under s.359(2). In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit her to appear. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information in these circumstances as the applicant did not provide any information in response to the Tribunal’s s.359(2) letter or contact the Tribunal at any point, nor did she engage in the review process since lodging the review application.

12. The Tribunal has reviewed the decision of the delegate. This decision is not binding on the Tribunal and the Tribunal brings an independent view to the review application.

13. The delegate’s decision (AAT Folio 1-3) dated 25 January 2017, which was supplied to the Tribunal by the applicant,  stated that the applicant arrived in Australia on 1 February 2010 on a subclass 571 student visa for the purpose of studying at Secondary School and this visa was valid until 15 March 2012. On 2 March 2012 the applicant was granted a subclass 573 student visa based on the applicant’s enrolment in a Bachelor of Biomedicine and this visa was valid until 15 March 2015.  On 27 March 2015 the applicant was granted a subclass 572 student visa based on her enrolment in an Advanced Diploma of Translating and a Diploma of Interpreting and this visa was valid until 8 July 2016. On 16 July 2016 the applicant applied for a further subclass 500 student visa to continue studying in the Vocational Education and Training (VET) sector.

14. The Tribunal has had regard to the applicant’s GTE statement that was submitted to the Department (DIBP Folio 31-32) which mentioned the following

    a.The reasons for the cancellation of the applicant’s COE at the University of Melbourne due to unsatisfactory course progress. The applicant explained that she found the course content to be extremely difficult and the lectures and tutorials to be fast paced.

    b.The applicant did not complete her Diploma of Interpreting due to breaking up with her boyfriend tacking China and as a result she felt depressed and was not able to concentrate on her studies.   The applicant did not study for seven months after the breakup with her boyfriend.

    c.The applicant stated that she is responsible for her poor academic performance since arriving in Australia in 2010 and that she was not able to start a new life until mid-2016. The two main factors that contributed to this were her poor English skills and the breakdown of her relationship.

    d.The applicant gave further reasons as to why she has undertaken studies through education provider Zarah where the applicant planned to complete a Diploma of Advanced Translating followed by a Certificate IV in Business and a Diploma in Leadership and Management.

    e.The applicant’s GTE statement concluded stating that her current enrolments will assist her greatly when she returns to China “because Chinese employers really appreciate those with great language abilities and also professional skills and knowledge. I would like to seek employment opportunity my home country in the business industry and I’m confident that learning these courses would definitely equip me with the necessary skills and knowledge to secure a job when I return to China.

    The applicant did not submit a GTE statement to the Tribunal. A certificate for the Advanced Diploma of Translating was submitted to the Department.

15. The applicant submitted to the Department Confirmations of Enrolment for a Certificate IV in Business (DIBP Folio 20) and a Diploma of Leadership and Management (DIBP Folio 18) through Zarah Institute of Education and that both of the COE’s have expired with the Certificate IV in Business expiring on 26 December 2016 and the Diploma of Leadership and Management expiring on 18 January 2018. The Tribunal notes that no evidence was provided by the applicant to the Tribunal or the Department that these courses of study had been completed and that the applicant is currently enrolled in a course of study. The Tribunal finds that the student visa is being used to maintain ongoing residence in Australia and that at the time of this decision, the applicant is not enrolled in a course of study and accordingly cl.500.211 is not met.

16. The applicant submitted to the Department a copy of her academic transcript (DIBP Folio 19) from The Kilmore International School which stated the applicant had achieved outstanding academic results for her subjects both at the standard level and higher levels for the Diploma Program of the International Baccalaureate.

17. The applicant submitted to the Department (DIBP Folio 25) a certificate for an Advanced Diploma of Translating through the Australian Institute of Translation and Interpretation. This 6 month short course started on 27 April 2015 and was completed on 27 October 2015. The Tribunal is concerned that the applicant has only completed Year’s 11 and 12 of Secondary School in November 2011 and a short 6 month VET sector course in October 2015 during the almost 9 years the applicant has been in Australia. The Tribunal finds that the student visa programme is being used to circumvent the intentions of the migration programme and to maintain ongoing residence in Australia.  

18. The Tribunal considers the applicant’s lack of academic progress during the substantial time the applicant has been in Australia is not the behaviour of a genuine student and that of a genuine temporary entrant. The Tribunal is concerned that the applicant will not abide by the conditions of the visa. The applicant did not provide the Tribunal any reasons or explanation for her non-compliance of her previous visas.

19. Based on the information before the Tribunal there is no evidence that the applicant is currently enrolled in a course of study. The most recent Confirmation of Enrolment was on the Department file (DIBP Folio 18) for a Diploma of Leadership and Management which expired on 8 January 2018. Therefore the Tribunal is not satisfied that at the time of this decision, that the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

20. There is no evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: whether the applicant has reasonable reasons for not undertaking the study in their home country, the extent of the applicant’s personal ties to their home country, any potential military service in the home country, political circumstances in the home country, civil unrest in the home country, the economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country, remuneration the applicant could expect to receive in the home country compared with Australia, the applicant’s ties with Australia which would present as a strong incentive to remain in Australia, the value of the course to the applicant’s future and whether the applicant is seeking to undertake a course of consistent with their current level of education,  the value of the course to the applicant’s future employment, circumstances in the home country relative to Australia or any other country and the applicant’s circumstances in the home country relative to others in that country.

21. On the basis of the above, Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

22. 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.

23. 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

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

    M. Edgoose
    Member