ZHANG (Migration)

[2018] AATA 1892

ZHANG (Migration) [2018] AATA 1892 (8 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Qian ZHANG

CASE NUMBER:  1616264

DIBP REFERENCE(S):  BCC2016/2175421

MEMBER:Stephen Conwell

DATE:8 May 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 08 May 2018 at 2:44pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine Temporary Entrant – Completion of professional year – Enrolment in VET sector – Value of course – Employment offer in home country – Length of time in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 499
Migration Regulations 1994, Schedule 2 c; 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 24 June 2016. The delegate decided to refuse to grant the visa on 19 September 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of sub-classes: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the sub-class that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as her or her principal course (Sub-class 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Sub-class 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Sub-class 575); whether the applicant has the support of the relevant Minister (Sub-class 576); or whether the applicant has applied on the basis of being a Student Guardian (Sub-class 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of the “Genuine Temporary Entrant” criterion which applies in each sub-class of the student visa.

4. The applicant appeared before the Tribunal on 6 February 2018 to give evidence and present arguments. The applicant was not represented at the Hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Where used in this decision:

   a.   The applicant refers to the first-named applicant;

   b.   COE refers to Certificate of Enrolment;

   c.   PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   d.   VET refers to Vocational Education and Training;

   e.   The Department refers to the Department of Immigration and Border Protection;

   f.      Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application;

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

   h.   IELTS refers to the International English Language Testing System.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Sub-class 580

7. At Hearing, the applicant was informed that the Sub-class 580 visa is for student guardians, where it is a requirement that the person will accompany a relative to or in Australia who is a student, and in order to make a valid application for a Sub-class 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1) and on the evidence it had not been used; therefore it appeared the application was not a valid application for a Sub-class 580 visa.

8. The applicant confirmed that Form 157G was not used and a Sub-class 580 visa was not sought, and was informed that the application appeared not to be a valid application for that sub-class in any event, and the Tribunal so finds.

9. For the remainder of this decision, a reference to sub-classes or all sub-classes of the Class TU visa does not include a reference to Sub-class 580.

10. Having regard to the applicant’s current proposed course of study, the relevant sub-class in this case is Sub-class 572.

    Genuine Temporary Entrant

11. A major 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)     …

12. 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.

13. 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.

14. At Hearing, the applicant was:

    a.   Given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;

    b.   Informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;

    c.   Informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.   Given an overview of the considerations laid out in Direction No.53 as summarised above;

    e.   Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the Tribunal Hearing;

    f.      Informed that all sub-classes of the Class TU visa have equivalent ‘genuineness’ criteria, and that if the criterion was not met, it would likely not be met for each of those sub-classes.

15. The Tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Background

16. At Hearing, the applicant confirmed that:

    ·       she first arrived in Australia on a 573 student visa in 18 August 2006;

    ·       she came to Australia to study for a Bachelor of Commerce degree.

    Study History

17. At Hearing, the applicant confirmed that she had completed the following courses up to the time of Hearing:

    ·       English (ELICOS) (completed September 2006);

    ·       Diploma of Commerce (completed June 2008);

    ·       IELTS Preparation Course (Upper Intermediate to Advanced) (completed June 2012)

    ·       Bachelor of Commerce (completed November 2012)

    ·       Diploma of Interpreting (completed December 2015)

    ·       Advanced Diploma of Translating (completed April 2016)

18. At Hearing the applicant confirmed that upon completing the Bachelor of Commerce at the end of 2012 she applied for, and was granted, a Temporary Skilled 485 visa for the period 7 November 2013 to 7 May 2015.  During this period the applicant completed her accounting Professional Year. Toward the end of 2015 she worked as an unpaid accounting intern for Kone Elevators.

19. It was noted that by the end of 2015 the applicant has a Bachelor of Commerce, a Diploma of Interpreting and had completed her accounting Professional Year as well as an internship. The Tribunal considers that objectively the applicant had, by the end of 2015, more than sufficient skills, knowledge and qualifications to have confidence to pursue her business career in China, or elsewhere.

20. Despite this, the applicant did not yield to incentives to return to China in mid-2015, upon expiry of her 485 visa.  She applied for, and was granted another Student (572) visa for the period 10 June 2015 to 24 June 2016.  During this period the applicant completed a Diploma of Interpreting and Advanced Diploma of Translating. 

21. The Tribunal questioned the applicant on the value of her returning to study after expiry of her 485 visa. At Hearing the applicant explained that she had felt that her marks in the Bachelor of Commerce were below her expectations and this convinced her to pursue further studies upon expiry of her 485 visa.  The Tribunal is not persuaded by this explanation however even if it is accepted at face value, it is noted that the applicant completed the Advanced Diploma of Translating by April 2016 and her 572 visa expired on 24 June 2016.

22. By mid-2016, knowing that her student visa was about to expire, the applicant had a definite choice. One option open to her would have been to act upon the personal incentives she claims to have to return to China and seek to apply the skills, knowledge and qualifications acquired in Australia to embark upon the career plan that she claims has guided her studies whilst in Australia. The applicant did not elect this option, choosing instead to enrol in further study in Australia, which the Tribunal finds is of questionable additional value to the applicant and her stated business career.

23. The Temporary Skilled 485 Graduate visa is offered to international students who have graduated in   Australia, to gain valuable work experience before (presumably) returning home to pursue their career goals. The applicant however did not elect to return home upon expiry of her 485 visa – instead she enrolled in further study for a Certificate IV in Business, an ‘entry level’ vocational subject along the commerce/business curriculum that she had already completed at Diploma and Bachelor level.

24. The introductory Certificate III unit generally precedes a Certificate IV in Business and together they lead on to a Diploma and Bachelor of Business qualification. Whilst the applicant completed a Diploma and Bachelor of Commerce (not ‘Business’) the Tribunal finds there is a great deal of overlap between the two curricula, such that studying for a Certificate IV in Business would be of no value to the future employment/career prospects of Commerce graduate like the applicant. The tribunal finds that the applicant’s course selection, particularly her enrolment in the VET sector, following the expiry of her 485 visa, was motivated not by her career objectives, but by migration considerations and her desire to maintain residence in Australia.

    Applicant’s Future plan

25. In her GTE Statement the Department, the applicant declared that enrolment in the Diploma  (and later, the Advanced Diploma) of Leadership and Management provided access to “knowledge, practical skills and experience across a range of enterprises and industries …”. Later in her Statement she states that this study will allow her to “build a foundation on management and leadership skills and gain knowledge in efficiently and effectively managing a business”.

26. The Tribunal accepts that the applicant might gain some benefit from studying  “Leadership and Management” to an Advanced Diploma level, however it finds that any additional benefit accruing to the applicant would be negligible or incremental at best, given she had already attained Diploma and Bachelor qualifications in Commerce. The Tribunal is not satisfied that the applicant’s enrolment in the “Leadership and Management” courses represents reasonable academic progression that one might attribute to a genuine student who intends to reside temporarily in Australia.

27. The applicant had the benefit of an 18 month period between November 2013 and May 2015, in which she had been granted a 485 Temporary Skilled work visa and also had the opportunity to complete her accounting Professional Year. Yet she would have the Tribunal believe that it was then necessary for her to enrol in further studies, at a lower vocational level in order to enhance her career options and remuneration prospects upon quitting Australia. The Tribunal is not persuaded by this argument; rather, the Tribunal finds that the applicant’s intention, by enrolling in the VET sector, upon expiry of her 485 Temporary Skilled visa, was to circumvent the ordinary migration program by using the student visa program as a means to maintain ongoing residence in Australia.

    Value of Course to the Applicant’s Future

28. The Tribunal questioned the applicant on the value of her latest course – the Advanced Diploma of Leadership and Management – to her stated future plan. It was put to her that this both the diploma and Advanced Diploma were generic leadership and management courses offering little value to someone who already has a diploma and Bachelor of Commerce. The applicant’s response was that a close friend had returned to Australia in 2016 and had set up a successful company which he had invited the applicant to join, upon completion of these VET courses.

29. The Tribunal observes that a Student visa is intended to equip the applicant with Australian qualifications that improve his or her career prospects overseas, once they quit Australia. At any rate the Tribunal is unconvinced of the veracity of this explanation and gives little weight to it.

30. The applicant’s GTE Statement of 27 July 2016 to the Department mentions an offer of employment by the Beijing Agriculture Business Management Co. Ltd and tendered a letter of offer dated 15 June 2016.  The role was to commence on 1 April 2018, after the applicant had completed the Diploma of Leadership and Management, in which she was then enrolled. The Tribunal gives weight to the fact that upon completion of the Leadership diploma in January 2018, the applicant did not quit Australia and return to China to take up this employment offer Instead, the applicant remained in Australia and enrolled in the Advanced Diploma of Leadership and Management – which leads the Tribunal to question the genuineness of this employment offer.

31. The Tribunal gives weight to the fact that the applicant enrolled in the Advanced Diploma a day before the Hearing indicates that the applicant has done so because of migration and visa considerations rather than because of a genuine interest in study and progress academically. The Tribunal finds that the diploma and Advanced Diploma of Leadership and Management offer little or negligible value to the applicant who before enrolling in the VET sector, had already acquired both a diploma and Bachelor of Commerce, as well as completed her Professional Year in accounting.

    Circumstances in Home Country and Potential Circumstances in Australia

32. The applicant gave evidence that:

    a.her family are in China and are financially comfortable;

    b.she is an only child and her parents have high expectations for her;

    c.she has no strong social or familial ties to Australia

    d.she is single and has no partner or boyfriend in Australia.

33. The Tribunal accepts that as the only child, the applicant has been the focus of her parents’ attentions and expectations. However the Tribunal finds that those parental concerns did not prove incentive enough to persuade the applicant to leave Australia upon expiry of her 485 visa in mid-2015. Indeed the delegate notes that up to the time of decision, the applicant had only been off-shore for a total of 54 days during the 10 years she had been in Australia (at the time of decision). 

    Applicant’s immigration history

34. At Hearing, the applicant’s stay in Australia had extended to 12 years, and she confirmed that she had not departed Australia in the period between the delegate’s decision and the Hearing. The Tribunal finds that remaining onshore for the entire period of 12 years bar a period of 54 days is not suggestive of a genuine student intending to reside temporarily in Australia.  In the lengthy period that she has been in Australia the Tribunal finds that the applicant’s rate of study, the timing of her applications for a Student visa and minimal time that she has ventured offshore, indicate that she is not a genuine student seeking to progress academically and having a genuine intention to reside temporarily in Australia.

    Findings

35. In view of all the evidence before it and taking consideration of all the factors in Direction 53 overall, the Tribunal finds that by mid- 2015, upon expiry of her 485 visa, the applicant had every personal and career reason to cease her residence in Australia.  Instead she chose to seek a further Student visa and enrol in study in the VET sector; this suggest to the Tribunal that the applicant will not yield to the incentives she has to leave Australia, including the fact that she is the only child of her parents.

36. The above factors cumulatively indicate the applicant is not a genuine student. Rather, the  appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and the applicant does not genuinely intend to stay in Australia temporarily.

37. Overall, given lack of academic progress, her study history, her potential circumstances in Australia, her immigration history and the lack of value of the courses to her future, the Tribunal find that the applicant is using the Student visa program to circumvent permanent migration programs and the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that she intends to stay in Australia temporarily.

38. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and 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.572.223(1)(a).

39. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Sub-class 580, the other sub-classes 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 sub-classes. In respect of Sub-class 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that sub-class. 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

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

    Stephen Conwell
    Member