Xu (Migration)

[2019] AATA 2252

Xu (Migration) [2019] AATA 2252 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Chao Xu

CASE NUMBER:  1718094

HOME AFFAIRS REFERENCE(S):           BCC2017/2117469

MEMBERs:P. Wood (Presiding)

T. Quinn

DATE:25 March 2019

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 25 March 2019 at 12:38pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – unsatisfactory academic progress – significant changes to career plans – lack of knowledge of proposed study – limited travel home – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 (‘the Minister’) on 4 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 15 June 2017 (‘the application’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 3 August 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) because:

   a.the applicant has not departed Australia since 27 February 2013 and the delegate found the applicant’s personal ties to his home country did not serve as a significant incentive to return;

   b.strong employment or economic circumstances in the applicant’s home country had not been evidenced;

   c.the applicant did not provide substantive information on what his actual career goals were and this caused the delegate to question the value of the applicant’s proposed courses to the applicant’s future and the applicant’s intentions regarding a further student visa;

   d.in the context of the applicant’s study history, the delegate was not satisfied the applicant was genuinely seeking to engage in the proposed courses for the reasons declared and found it more likely the applicant was seeking to maintain residency; and

   e.the applicant has been in Australia for a significant period of time (since 2011) which seems inconsistent with the claim to be a genuine temporary resident.

4. On 15 August 2017, the applicant applied for a review of the delegate’s decision with this Tribunal.

5. On 11 January 2019, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting him to provide information in writing about the course(s) of study the applicant was undertaking and his entry and stay in Australia as a student.

6. On 23 January 2019, the applicant responded to the Tribunal’s request for information. The Tribunal has read and had regard to the applicant’s response.

7. The applicant appeared before the Tribunal on 18 February 2019 to give evidence and present arguments.

8. The applicant was assisted in relation to the review by his registered migration agent.

9. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

10. The Tribunal has proceeded to a decision having regard to all the information before it, including the department file and the certificate of enrolment provided by the applicant on the morning of the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 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 is a genuine applicant for entry and stay as a student temporarily (clause 500.212 of the Act).

13. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

14. In considering whether the applicant satisfies clause 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 section 499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

15. 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.

16. The applicant is a 31 year old male Chinese national who first arrived in Australia on 26 July 2011 as the holder of a Higher Education Subclass TU573 Student Visa and has not departed (save for 26 days in 2013 when he returned to China for Chinese New Year celebrations).[1]

    [1] See part 8 of Applicant’s submissions filed 23 January 2019 pursuant to section 359(2) of the

    Act.

17. Prior to coming to Australia, the applicant completed secondary school at Dalian No.1 High School Second Campus and a Tourism Management course at Liaoning Vocational College.

18. The applicant was granted his first student visa in June 2011, his second in August 2014 and his third in September 2015. The review presently before the Tribunal is the applicant’s fourth application for a student visa.

19. Since his arrival in Australia, the applicant has been enrolled in:[2]

    [2]See pages 3-4 of the delegate’s decision, provided to the tribunal by the applicant on 16 August 2017.

    a.English Language Program (1 August 2011 to 16 December 2011) – cancelled;

    b.English Language Program (1 August 2011 to 16 December 2011) – finished;

    c.English Language Program (9 January 2012 to 27 February 2012) – finished;

    d.Bachelor of Business (Hotel, Tourism, Event, Real Estate and Property, Sport) (27 February 2012 to 30 June 2014) – finished;

    e.Certificate IV in Accounting (6 October 2014 to 12 April 2015) – finished;

    f.Diploma of Accounting (20 April 2015 to 20 September 2015) – cancelled;

    g.Certificate III in Commercial Cookery (20 April 2015 to 10 April 2016) – finished;

    h.Certificate IV in Commercial Cookery (18 April 2016 to 18 September 2016) –cancelled;

    i.Diploma of Marketing and Communication (15 June 2016 to 31 May 2017) – cancelled;

    j.Diploma of Hospitality (3 October 2016 to 16 April 2017) – cancelled;

    k.Certificate IV in Commercial Cookery (17 March 2017 to 31 October 2017) –cancelled; and

    l.Advanced Diploma of Marketing and Communication (15 July 2017 to 14 July 2018) – cancelled.

20. At the time of applying to the Department, on 15 June 2017, the applicant proposed to undertake a Masters of Professional Accounting. At this time (being June 2017), the applicant had not been enrolled in a course which he actually commenced since April 2016. The Tribunal is troubled by a delay of over 12 months in any progress in the applicant’s study. Although the Tribunal acknowledges that the applicant had lodged an application for a UC 457 visa under the occupation of cook (which was subsequently withdrawn in October 2016), the Tribunal’s concerns about the applicant’s academic progress and genuine intentions in relation to being a student are not assuaged.

21. To his credit, the applicant went ahead and enrolled in a Masters of Professional Accounting with Holmes Institute and has completed this course in December 2018 and will graduate shortly. This is to be commended.

22. The applicant has now enrolled in a Masters of Business Administration (‘MBA’) with Holmes Institute due to start on 25 March 2019 and finish on 31 July 2019.

23. In his submissions made to the Department[3] and the Tribunal both in writing and at hearing, the applicant expressed an interest in accounting following his previous business studies in China and in Australia. The Tribunal accepts that the applicant has now found an area of study in accounting which he is interested in. However, his future plans and the way in which his studies will assist him in that regard still appear to be being formulated by the applicant. In his GTE statement, the applicant does not articulate any specific future plan.[4] In his submissions filed with the Tribunal on 23 January 2019, the applicant stated ‘I plan to go back to China to open a café and accommodation business’. The Tribunal considers that the applicant’s career goal is likely to be returning to China to open a café and accommodation business. There is no mention in that document of pursuing a career in an international company. The applicant instead details how each of the courses will apply and assist in his café back in China. At hearing less than a month later, the applicant stated that he now intends to pursue a career in an international company to save money before commencing his café and accommodation business. Even allowing for reasonable changes to career or study pathways, however, it is difficult to accept that after several student visa applications and several years onshore that the applicant’s future intentions would have changed so significantly in such a short space of time, immediately prior to his review hearing. The Tribunal is concerned it may be a recent invention in order to persuade the Tribunal to set aside the Department's decision.

    [3]See applicant’s undated genuine temporary entrant statement titled ‘RE: GTE Statement for study purpose Statement of Purpose’ (‘GTE’) – p 39 Department File.

    [4]           Ibid.

24. When asked what the names of the subjects for the MBA were, the applicant had difficulty answering and could only recall the name of one of the subjects. Although the Tribunal accepts that the proposed course is consistent with the applicant’s current level of education, it is concerned about his lack of knowledge in relation to his studies and considers a genuine student would ordinarily know the subject names of the courses they are about to commence.

25. The applicant’s main reason for studying the MBA in Australia as opposed to China appears to be the practical way in which it is taught and critical thinking involved. Upon questioning, the applicant stated that it would take him longer to complete his MBA in China but would cost less money. The Tribunal is not satisfied that there are reasonable reasons for not undertaking the MBA in China or that region in circumstances where a similar course is available there.

26. As referred to above, the Tribunal appreciates that the applicant has, after many years, found an area of study in accounting which he is interested in. However, the Tribunal considers the applicant has had ample time and opportunity to engage with this study, has now completed his Masters in Professional Accounting and the MBA may have limited additional utility to the applicant’s future in China.

27. The Tribunal notes that the applicant has both parents in China and speaks to them on a daily basis. The Tribunal considers that the applicant has been able to maintain this relationship from afar using ordinary means of communication. The applicant has divorced from his wife in China and, given the fact that the applicant has only returned to China for 26 days in nearly 8 years, the Tribunal finds that the applicant’s personal ties to China do not serve as a significant incentive for him to return.

28. The applicant has been working as a cleaner in Australia and indicated in the hearing that with his Australian qualification he would be likely to earn twice as much as local (Chinese) graduates, being $1500 AUD equivalent per month. The applicant’s submissions filed on 23 January 2019 stated his starting income in China with an MBA would be $50,000 AUD equivalent per year but at the hearing he stated if he were a financial controller this would be $100,000 AUD per year. The Tribunal does not accept that the applicant intends to pursue work as a financial controller.

29. The applicant stated he is not in a relationship and did not give details of any specific personal (family or community) ties with Australia. The Tribunal finds there are no personal ties presenting as a strong incentive for the applicant to remain in Australia.

30. The Tribunal considers that the applicant probably enjoys studying, has enjoyed studying accounting and has a goal of running a café and accommodation business upon his return to China. The Tribunal has some difficulty simply accepting the applicant’s recent assertion that he now intends to pursue a career in an international company, considering his previous claims in relation to the proposed café and accommodation business and the timing of his supposed change of his intentions.

31. There is nothing before the Tribunal to indicate that the applicant has experienced visa refusal or immigration issues in any other country.

32. The applicant stated he did not have any military, political or civil unrest concerns in relation to his return to China.

33. The Tribunal has not been provided with information regarding the applicant’s circumstances in China relative to others in that country.

34. Whilst the Tribunal has empathy for the applicant and the fact that he has recently found a passion for accounting, given the extended length of time the applicant has been onshore for, his recent change in career intentions and the limited additional benefit an MBA would provide to the applicant’s future considering his other qualifications, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. The Tribunal holds concerns that the visa is being sought primarily to maintain residence in Australia.

35. Accordingly, the applicant does not meet clause 500.212(a) and the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by clause 500.212.

36. 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. Therefore, the decision under review must be affirmed.

    DECISION

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

    P. Wood
    Senior Member

    
    

    T. Quinn
    Member