YIN (Migration)

[2019] AATA 3160

YIN (Migration) [2019] AATA 3160 (8 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms RONG YIN

CASE NUMBER:  1714293

HOME AFFAIRS REFERENCE(S):          BCC2017/1026343

MEMBER:Wendy Banfield

DATE:8 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 July 2019 at 8:44pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –genuine temporary entrant criterion not met –new course is unrelated to her previous studies  – used student visa to maintain ongoing residence –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, 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 on 14 June 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 15 March 2017. 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.

   Background

3. The applicant is a citizen of China and is currently 31 years old. She came to Australia as a student on 21 September 2007 holding a Subclass 572 Student Visa. Since her arrival the applicant has held eight student visas and one Subclass 485 temporary graduate visa. The applicant has completed a Bachelor of Business, Master’s courses in Professional Accounting and Finance, an Advanced Diploma of Leadership and Management, Graduate Diploma of Business and a Diploma of Human Resources Management. The applicant completed her last course on 7 December 2018 but submitted a new COE on 14 January 2019 for an Advanced Diploma of Information Technology Business Analysis to be completed on 5 January 2020.

4. The delegate in this case refused to grant the visa 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 it was determined the genuine temporary entrant criteria had not been met.

5. The applicant appeared before the Tribunal on 7 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

7. The applicant made submissions to the Tribunal prior to and after the hearing as follows:

   ·     Diploma of HR Management COE and interim transcript dated 10 December 2018;

   ·     COE, letter, certificate and academic results for Graduate Diploma of Business completed 14 February 2018;

   ·     COE, letter of completion and certificate dated 24 February 2017 for an Advanced Diploma of Leadership Management;

   ·     Certificate, letter and transcript for a Bachelor of Business from UTS Dated 20 March 2012;

   ·     Letter and statement of results for a Master of Professional Accounting dated 8 August 2013;

   ·     Letter and academic record for a Master of Business in Finance dated 19 February 2014;

8. The applicant had provided evidence to the Department in support of her visa application. This included an Application for a Student Visa form, GTE statement, overseas student health cover, health examination, evidence of previous studies, general statement (undated), offer of employment from an air conditioning equipment company in Beijing dated 16 May 2017, parents’ identity information.

   The hearing

9. The applicant confirmed she came to Australia in 2007 to obtain a Bachelor degree. The applicant had graduated from high school and advised she decided study in Australia because she would be able to learn a foreign language and expand her vision. The applicant declared she had plans to obtain a stable, promising job when she completes her studies in Australia.

10. According to the applicant she completed a Bachelor of Business and then decided to study a Master of Accounting as she believed it would widen the field for jobs in future. The applicant said she then decided to complete a Master of Finance because she believed the more qualifications she had the better. The applicant said she completed internships after her Masters courses including with the Bank of China. However, the applicant claimed that due to her age, she did not think she had any advantage over others. For this reason the applicant said she has decided she would like to work in management, or possibly open a restaurant or start an international business.

11. The applicant said she had stopped studying while holding a temporary residency Visa. The Tribunal asked the applicant why she was still studying Diploma and Advanced Diploma courses. The applicant responded that when she was studying her Bachelor and Masters degrees she had thought they would lead to good job offers however by that time she believed her age was not in her favour. The Tribunal put it to the applicant that it appeared she would not now use the qualifications she had obtained in Australia. The applicant disagreed and said she had studied in the finance and economics field in order to get a job but had since changed her mind did not want employment. She claimed that the courses she studied later were towards getting her own business but her previous studies would help and would not be a waste.

12. The applicant declared she has an older sister in Australia while her parents and grandparents continue to live in China. She last visited her home country in October 2018. Regarding her incentive to return to China, the applicant claimed there were more opportunities there and she does intend to go back. The applicant declared there were no issues preventing her returning to China in future. She advised that she currently supports herself through her part-time job as a manager in a retail store and with support from her parents.

13. The applicant was advised that in order to be granted a Student Visa, it was a requirement that she be enrolled in a course of study at the time of decision. The applicant undertook to provide evidence of enrolment after the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 meets the requirements of a genuine temporary entrant for study as required for the grant of a Student Visa.

16. 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?

17. 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, which is attached to this decision, 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.

18. 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.

19. The Tribunal considered the applicant’s circumstances in her home country. According to the evidence she has her grandparents and parents in China while her only sibling lives in Australia. Since arriving in 2007, the applicant has returned to her home country at times, the most recent visit at the time of the hearing being from 16 October to 11 November 2018. The Tribunal accepts the applicant has some ongoing personal ties to her home country but is not satisfied they serve as a significant incentive for her to return to China.  As declared to the Department, the applicant has her sister in Australia and her parents are both flight attendants who visit Australia frequently. This indicates she had little incentive to return to China, apart from the presence of extended family such as grandparents.

20. At the time of application on 15 March 2017, the applicant was enrolled in a Graduate Diploma of Business. In the general statement in support, the applicant claimed she intended to take up the position offered to her by a Chinese air-conditioning company when she completes the course. A letter of offer from Beijing Ding Li Fang Yuan Air Conditioning Equipment Co Ltd dated 16 May 2017 was submitted in support of this claim. The letter stated “last year we have offered Ms Yin a position of Assistant Manager of International Trade/Marketing which requires minimum a bachelor’s degree…” The letter further referred to the company’s policy of employing people with post-graduate qualifications in business management which the applicant agreed to undertake and will then start her job to date. The Tribunal notes that since then, she has enrolled in further courses in Leadership and Management and IT Business Analysis up to 2020. Although at the time of application the applicant claimed that wants to take up this offer of employment, at the hearing she made various claims of wanting to do management work, open a restaurant or start an international business without reference to the earlier job offer.  The Tribunal is not satisfied a company would offer a position to an applicant in 2016[1] when the candidate is studying for a further three to four years and has continued enrolling in courses that are additional to the stated requirements for the job.

    [1] The offer letter from the air conditioning company dated 16 May 2017 states the position was offered to the applicant “last year”.

21. The Tribunal assessed the applicant’s circumstances in Australia. According to the evidence the applicant has one sister in Australia. Her GTE statement dated 15 March 2017 declares “My sister will provide all tuition fees and living expenses for my study in Australia”.  Although her parents are resident in China, the evidence is that they visit Australia often through their work as flight attendants. The presence of her sister in Australia and the regularity with which she is able to see her parents would contribute to the applicant’s lack of incentive to return to China. The ongoing financial support from her sister and part-time employment in Australia are economic circumstances that would present as a significant incentive for the applicant not to return to their home country. She is continuing to study, despite having been a student for many years and having referred to her employment prospects being impacted by her years of studies and her current age. The applicant’s circumstances in Australia, together with the length of time she had been living away from her home country indicate her ties to Australia are significant and she reasons to seek to remain. The Tribunal finds these factors weigh against her in the assessment of whether she is a genuine temporary entrant for study.

22. Regarding the value of the course the applicant is currently studying to her future, the Tribunal considered the applicant’s submission of a COE after the hearing for an Advanced Diploma of Information Technology Business Analysis starting on 7 January 2019 and ending on 5 January 2020. No satisfactory explanation was given as to why the applicant enrolled in this course. The applicant did not indicate whether the course will assist her to obtain employment or improve her employment prospects in China, the relevance of the course to her future employment or the remuneration she could expect to receive using this qualification. The applicant has already obtained a Bachelor degree, a Masters and a Graduate Diploma but has since regressed to Diploma and Advanced Diploma level programs.  The applicant provided vague and somewhat contradictory evidence regarding her plans for the future both in the GTE statement provided to the Department and at the Tribunal hearing. The Tribunal considers the applicant has had ample opportunity since 2007 to achieve her academic goals in Australia and it appears she is continuing to enrol in courses of study in order to maintain residency. For this reason, the Tribunal does not place any weight in the applicant’s favour on the value of the course to her future.

23. The applicant’s immigration history refers to both her travel and visa history. The applicant first arrived in Australia in 2007 to undertake a Bachelor degree. She has achieved that aim and also completed post-graduate qualifications together with further Diploma and Advanced Diploma courses. Given the amount of time the applicant has spent as a temporary resident in Australia, the Tribunal does not accept the applicant is a genuine student. In making this assessment, the Tribunal took into account the applicant’s situation overall and the fact she recently enrolled in a new course that is unrelated to her previous studies. The Tribunal places weight on the applicant’s circumstances as indicating the Student Visa is intended primarily for maintaining residence in Australia.

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

25. 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.

26. 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

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

    Wendy Banfield
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, 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 of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.