Yang (Migration)

[2017] AATA 2244

Yang (Migration) [2017] AATA 2244 (26 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Siou-Wen Yang

CASE NUMBER:  1612895

DIBP REFERENCE(S):  BCC2016/2004077

MEMBER:Penelope Hunter

DATE:26 October 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 26 October 2017 at 3:59pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Intention to stay in Australia temporarily – Relevance of study to career – Gaps in study – Ties in Australia - Witness credibility

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 572.223

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 9 June 2016. The applicant proposed to undertake study in a Certificate II in Customer Engagement, a Certificate III in Business and Certificate IV in International Trade with course dates from 4 July 2016 to 6 April 2018.

3. In support of her application the applicant submitted pay advices for employment with Australia Personnel, a letter of job offer in Hong Kong in the selling department of Team Mount Development, financial documents, Bachelor of Fine Arts conferred 12 June 2013, and a statement in support. In her statement the applicant set out the following relevant information;

   i.     She had applied for her courses because she had a job offer with Team Mount Development, this is an electronic import and export company. She claimed the courses would assist her best to communicate with clients, manage and handle complaints, her prepare emails and assist in the international work of the company. Her previous study history was in design, after discussions with her employer she was advised if she could get related education to the position she would have a better opportunity to advance to a manager level.

   ii.     While she was in Australia on a working holiday visa the applicant had previously studied general English at her proposed education provider. She knew the provider is satisfied as to the quality of the course.

   iii.As she had been to Australia twice on a working holiday visa she was familiar with life here. Her employer had recommended that she study overseas. She cannot satisfactorily study English in her home country and it was also for she chose to return to Australia.

   iv.The applicant with living in Sydney with other international students. She had saved monies for her study history of working holiday and her mother was also supporting her financially.

   v.She had travelled back to Taiwan during the period of working holiday visa because she missed her family. All of her friends in Taiwan, she did not have any friend ties in Australia.

4. The delegate decided to refuse to grant the visa on 3 August 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).

5. The delegate refused to grant the visa because the applicant did not satisfy the requirements of clause 572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student. In their decision, provided to the Tribunal by the applicant, the delegate set out the following issues of concern;

   i.The applicant was granted her initial working holiday visa on 28 June 2013 and first arrived in Australia on 1 November 2013. The applicant was granted a second working holiday visa on 6 November 2014 and then a tourist visa on 17 March 2016, and the applicant arrived in Australia on 29 March 2016. On 9 June 2016, the applicant applied for the current visa. It was noted that the applicant applied for the current visa and her course proximate to the time her tourist visa was about to expire. It appeared that she had commenced study only in order to secure a student visa rather than due to a genuine interest in the area of study.

   ii.It was considered that the applicant, having lived and worked in Australia since 1 November 2013, had already had a significant opportunity to learn English.  It was noted that she had interned for the company in Taiwan in which she had been offered employment and this together with the general English she had undertaken while on her working holiday were considered sufficient to assist the applicant to reach her career goals.

   iii.The applicant had not provided any substantial reasons for choosing her courses and weight was given to their apparent lack of value to her future.

6. On 18 September 2017, the applicant provided additional documents in support of her application to the Tribunal, including Same Sex relationship Certificate (and translation)for herself and the secondary applicant, death certificate for her grandfather, screen shots of messages from her previous education provider, letter of enrolment from ILSC Business College dated 15 September 2017,enrolment agreement at Lloyds College for Miss Pi Hsia Chin, bank statement from the Commonwealth Bank and National Australia Bank, letter from Burwood Medical Centre dated 16 September 2017, imaging and ultrasound reports dated 16 September 2017, and a statement which set out the following;

   i.She returned to Australia with her partner Pi-hsia Chin to pursue their study. They spent some time looking for an agent and then he organised their school.

   ii.She commenced her study on 4 July 2016 and was enjoying it and attending regularly. Although she was disappointed by the delegate’s refusal of her visa on 3 August 2016, she kept studying until early November 2016.

   iii.On 5 November 2016, the applicant’s grandfather was admitted to hospital. The applicant arranged for a bridging visa B and then returned to Taiwan on 8 November 2016. Her grandfather’s condition stabilised and she went back to Australia on 13 November 2016.

   iv.On 10 November 2016, the agent called her in Taiwan and told her that her fees were outstanding, and at the time she was very worried about her grandfather. She told her agent that she would discuss it when she returned to Australia and was warned that her enrolment might be cancelled. She was told she could return to study later.

   v.On 15 March 2017, her grandfather passed away and the applicant was very sad for 2 months.

   vi.She attempted to contact her agent to get a new Confirmation of Enrolment (CoE) but he did not answer her phone. One day in May 2017 while walking to the train station the applicant was it by a car that drove off without stopping. At first she did not feel any pain but the next day her wrist and ankle were swollen up and she was unable to walk. The applicant did not see a doctor because she was afraid that the medical costs might be too high. She only asked a friend who was a physiotherapist to do some massage.

   vii.When she was advised her Tribunal hearing was scheduled the applicant contacted her college to regarding her enrolment. Her college had updated her CoE and invited her to continue her study. She hoped to get a student visa to finish her course and then she will use the skills she leans to work in Taiwan.

7. On 19 September 2017, the applicant provided the Tribunal with a letter of offer of enrolment by Salisbury College Australia in a Certificate IV in Marketing and Communication and a Diploma of Marketing and Communication with course date from 9 October 2017 to 7 November 2019.

8. The applicant appeared before the Tribunal on 21 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal also received evidence from Ms Pi-hsia Chin. The applicant was represented in relation to the review by her registered migration agent.

9. At the hearing the Tribunal explored with the applicant about her study history and study and career intentions. The applicant was asked about the period that she was not studying and the matters she had claimed impacted upon her study. The Tribunal raised concerns with the applicant about her lack of progress. The applicant confirmed that she was yet to receive confirmation from Team Mount Development that a position would remain available for her in Hong Kong. The applicant also discussed with the Tribunal her immigration history, ties in Australia and her home country, the issues of concern for the delegate and other relevant matters. Ms Chin confirmed to the Tribunal that the applicant wished to study.

10. Following the hearing the applicant submitted to the Tribunal a COE issued by Salisbury College in a Certificate IV in Marketing and Communications.

11. The applicant was represented in relation to the review by her registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

14. 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)     …

15. 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.

16. 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.

17. 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.

18. The applicant has not demonstrated that she has undertaken study in Australia since 5 August 2016. Although the applicant provided evidence to the Tribunal that she continued until 28 November 2016, the confirmation of enrolment letter issued by ISLC Business College records that she attended for 5 weeks. The Tribunal has considered the evidence that the applicant has presented regarding the illness and subsequent death of her grandfather. On the evidence of the applicant, she had satisfied herself as to an improvement in his condition and returned to Australia by 13 November 2016. The applicant did not return again to Taiwan as a consequence of her grandfather’s condition, she has set out in her evidence that she was aware in November 2016 that her enrolment may be cancelled. The applicant has not explained to the satisfaction of the Tribunal why she did not resume her studies when she returned to Australia in November 2016 and before her grandfather passed in March 2017. It is accepted that the applicant would have been affected by the death of her grandfather, however she did not return to her family and she has not provided any evidence of that she sought any treatment for her difficulties at the time. The Tribunal has also considered the evidence of the applicant that she was injured by a motor vehicle in May 2017. However, the Tribunal considers that if she was injured to the extent claimed, such that it would impact on her ability to study and function for a period of over 4 months, she would not report the matter or seek treatment prior to 16 September 2017. The Tribunal has considered concerns expressed by the applicant for costs of medical treatment, however she has submitted with her application for the visa evidence that she has health insurance. In the absence of supporting evidence proximate to the alleged time of injury in May 2017, it appears to the Tribunal that the applicant has attempted to tailor her evidence to support her application for review. The Tribunal is sceptical that it was only after receiving notice of the Tribunal hearing that the applicant sought treatment. Although the investigations by way of ultra sound and x-ray indicate that her treating professionals had some concern about potential injuries to her ankle and wrist, the Tribunal is not satisfied that they occurred at the time alleged. It is not satisfied that the applicant has provided a sufficient explanation for why she had not studied since August 2016. It also not satisfied that the applicant’s lack of study or progress can be attributed to school holidays or advice from her agent. It is considered that if the applicant was genuinely in Australia for the purposes of study she would have undertaken and progressed further with her proposed courses.

19. The applicant claimed that she had strong ties to her family in Taiwan. This consisted of her parents, and siblings, a brother and two sisters. The Tribunal noted that the family registration documents supplied by the applicant to the Department did not record any siblings. The applicant claimed her agent told her that she did not need to disclose her siblings. She also claimed that her agent told her that that her comments about her siblings in her statement to the delegate were not necessary. The Tribunal had difficulty understanding why the applicant would be discouraged from divulging members of her family to the Department in her application and in a statement to the delegate.  The Tribunal also has had regard to the fact that the applicant has spent extensive time away from her family since November 2013, most of it in Australia. She has not lived with them for several years. It is noted that according to the letter of proposed employment submitted by the applicant submitted she was not intending to return to work in her home country, but rather relocate to Hong Kong. Additionally, the applicant has not provided any evidence of any personal assets or economic ties in her home country. The Tribunal is not satisfied that the applicant has demonstrated that she has significant family, and economic ties that would act as an incentive for her to return to her home country.

20. The Tribunal then considered the circumstances of the applicant in Australia. The relationship certificate that the applicant has submitted to the Tribunal records that she was in a relationship with Miss Chin, at the time she submitted to the delegate that she had no friends or family in Australia. The applicant also told the Tribunal at the hearing that prior to applying for the visa they had already been in a relationship for 3 years and that they had travelled together to Australia. The applicant claimed that it was on the advice of her former agent that she did not disclose this information as her agent advised her it would be difficult for them to apply for a visa together. The Tribunal considers, as was put to the applicant at the hearing, the fact that she had made representations to the Department that were not consistent with what she was now claiming were her actual circumstances in several instances, raised concerns about the reliability of her evidence and claims.

21. In addition to having her partner in Australia with her, the applicant has also spent a considerable number of years in Australia, and it is expected that she would have developed friends and community ties in that period. It is considered that these ties would act as a strong incentive for the applicant to remain in Australia.

22. The Tribunal is also not satisfied as to the relevance of the applicant’s chosen courses to her future. The applicant provided submissions to the delegate that previous courses she had chosen were expressly relevant to her proposed employment. The applicant has now changed the subjects that she proposed to study. When asked to explain this change the applicant gave evidence that she found her initial course very easy. The Tribunal has difficulty with this submission when the evidence from her education provider is that she only undertook 5 weeks. Additionally she has not only changed courses but also education providers when she has claimed in her written submissions that her old college updated her CoE and invited her to continue. The applicant was only able to provide general information about the value of the course to her future, and the reasons she had chosen her new courses, stating only that the course would be helpful when she got back to her home country. She also said it was quite possible that she would deal with customers. The Tribunal was not satisfied that her courses were chosen with any particular employment objective in mind, and the applicant has not established to the satisfaction of the Tribunal the reasons why she wanted to undertake the course. The applicant submitted that in Asian countries Australian certificates were highly regarded. However other than general benefit that the applicant may obtain from further education the Tribunal was not satisfied that they were required for her future employment as claimed, or as to their relevance for the applicant’s future. The Tribunal was also not satisfied that the applicant could not have undertaken relevant similar education in her home country.

23. The Tribunal has considered the letter provided by the applicant regarding proposed future employment with Mount Development, in light of the evidence that the applicant has not studied for over 12 months and now proposes to undertake different courses that would see her remain in Australia until November 2019. The applicant claimed that she was currently discussing the situation with her employer and had told him that her student visa had been refused, and he hoped she would be able to complete her education in Australia. The Tribunal has difficulty accepting the reliability of this claim. According to an earlier submission provided by the applicant to the delegate the position was an entry level position and the applicant was seeking to undertake her courses so she could in the future progress to management level responsibilities. In the absence of further evidence, the Tribunal is not satisfied that an entry level position would remain open for the applicant for several years in circumstances where she has not yet progressed in her study. The Tribunal is not satisfied that much weight can be attributed to the claim by the applicant that she has an offer of employment consequent upon her education in Australia. It is not satisfied that much weight can be attributed to the claim by the applicant that she has future employment which would act as an incentive for her to depart Australia.

1. Overall having considered the applicant’s lack of study, lack of progress in her study, the concerns of regarding the relevance and value of the proposed courses to her future and her lengthy period of time in Australia, her circumstances in Australia and in her home country, the matters contained in Direction 53 and other relevant matters such as the reliability of her documents and inconsistencies in her evidence, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay in Australia in a student. The Tribunal is not satisfied that the applicant genuinely intends to remain to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

2. 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

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

   Penelope Hunter
   Member