Zhang (Migration)

[2018] AATA 5821

Zhang (Migration) [2018] AATA 5821 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haoyan Zhang

CASE NUMBER:  1713011

HOME AFFAIRS REFERENCE(S):           BCC2017/1277980

MEMBER:Stephen Conwell

DATE:11 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 11 December 2018 at 12:53pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine student – use of student visa to maintain ongoing residence in Australia – automotive studies – no significant incentive to return home – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

CASES
Hasran v MIAC [2010] FCAFC 40

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 8 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 5 April 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.

3. 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 the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily (GTE criterion).

4. Where used in this decision:

   a.   COE refers to Confirmation of Enrolment;

   b.   VET refers to Vocational Education and Training;

   c.   The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection);

   d.   Direction 69 or the Direction refers to Direction No.69, Assessing the genuine temporary entrant criterion for Student visa application;

   e.   GTE refers to the Genuine Temporary Entrant criterion for Student visa applications;

   f.      ‘359(2) questionnaire’ or ‘359(2) invitation’ refers to the Request for Student Visa Information questionnaire issued by the Tribunal under s.359(2) of the Act.

5. On 6 August 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 invitation was sent to the applicant’s migration agent (‘representative’) at the last address provided in connection with the review and advised that, if the information was not provided in writing by 20 August 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant has not provided the information within the prescribed period and no extension has been granted. 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

7. The Tribunal has decided to proceed to decision without taking further steps to obtain the information. Accordingly the Tribunal moves to determine the review application “on the papers”.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

   Genuine applicant for entry and stay as a student (cl.500.212)

   10. 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.

10. The delegate’s decision in summary notes that:

    ·     The applicant was granted his initial Student visa (TU 571) offshore on 18/11/2013 which was valid until 15/03/2017. He subsequently arrived in Australia on 23/01/2014.

    ·Examination of his study history in the Provider Registration and International Student Management System (PRISMS) indicates that he has been enrolled to undertake:

    oSecondary Education for Year 11-12 Cancelled

    oSecondary (7-12) Cancelled

    oSecondary (7-12) Cancelled

    oSecondary Years 10 – 12 Cancelled

    oSecondary Years 11 – 12 Cancelled

    oSecondary Years 10 – 12 Cancelled

    oHigh School Preparation Cancelled

    oSecondary Years 11 – 12 Cancelled

    oSecondary Years 11 – 12 Cancelled

    ·The applicant is now proposing to undertake Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Management and Diploma of Automotive Management which commenced 10/04/2017 and is due for completion 01/12/2019. This would extend his total period of stay in Australia to exceed six years.

    ·Since his arrival the applicant has held a student visa and been enrolled to undertake Secondary Education Years 10-12 and 1-12. He changed schools several times but did not complete his high school education successfully.

    ·On 10/06/2016 his education provider, Ozford College reported the applicant for unsatisfactory attendance, noting that he had failed to achieve an 80% attendance level for his study period.

    ·The applicant provided a GTE Statement in his Student visa application claiming that the course he proposes to study will give him opportunities of being hired by a large international car company in his home country of China however the delegate found that he failed to establish that any such prospects exist based on his previous and current studies.

    ·In considering the factors in Direction 69, the delegate found that:

    othe applicant was unable to provide details as to how his proposed study would substantively improve his future career prospects and remuneration;

    ohe was not satisfied that these courses were selected to improve the applicant’s educational outcomes or further his career;

    oupon taking into account the economic circumstances in his home country relative to his potential economic circumstances in Australia the delegate could not be satisfied that the applicant has significant incentive to return to China.

    othe applicant’s intention to live in Australia may be motivated by factors other than study.

    owhilst the applicant has personal and family ties to China, given the time he has spent in Australia and the intended period of his future stay onshore, the delegate was not satisfied that these ties represent a significant incentive for him to return to China.

    othe applicant’s study and visa history suggest that he appears to have enrolled in this new course for the purpose of securing a further student visa rather than due to a genuine interest in study

    oon considering the applicant’s overall circumstances, it appeared that he was using the Student visa program as a means of maintaining ongoing residence in Australia and he does not seem to have a genuine intention to stay in Australia temporarily.

    Does the applicant intend genuinely to stay in Australia temporarily?

11. 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.

12. 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.

13. The Tribunal has reviewed the delegate’s decision which was provided by the applicant along with his application for merits review. This decision is not binding on the Tribunal; the Tribunal brings an independent view to the review application.

14. The Tribunal has considered all the above information and has regard to the factors in Direction 69.

15. The applicant has not provided a satisfactory explanation for his desire to remain in Australia to pursue further study. Nor is the Tribunal satisfied that his proposed course of study will add value to his stated career or remuneration prospects.

16. There is no evidence pertaining to the following factors indicated by Direction 69 that would prevent him from returning to his home country and the Tribunal makes no findings against the applicant based on:

    ·       any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;

    ·       circumstances in the home country relative to Australia or any other country;  or

    ·       the applicant’s circumstances in the home country relative to others in that country.

17. On the evidence before it, the Tribunal finds that the applicant is not a genuine student. Rather, he appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and he does not genuinely intend to stay in Australia temporarily.

18. Overall, given lack of evidence of academic progress, his study history, his immigration history, including his breach of visa condition 8202 (remain enrolled and achieve satisfactory course attendance and progress) and the lack of value of the courses to his future, the Tribunal find that the applicant is using the Student visa program to circumvent the intention of migration programs.  The Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that he genuinely intends to stay in Australia temporarily.

19. On the basis of the above, and having considered any other matters it considers relevant, 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).

    Conclusion on cl.500.212

20. 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.

21. 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

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

    Stephen Conwell
    Member