Zhang (Migration)

[2020] AATA 5688

Zhang (Migration) [2020] AATA 5688 (25 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hang Zhang

CASE NUMBER:  1928281

HOME AFFAIRS REFERENCE(S):          BCC2019/4039003

MEMBER:D Triaca

DATE:25 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 25 September 2020 at 11:11am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met– failed to explain in any meaningful detail how his current set of courses will assist him to achieve his future plans – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 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 Home Affairs on 17 September 2019 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 14 August 2019. 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).

4. The applicant appeared before the Tribunal on 24 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

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

7. 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?

8. 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.

9. 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.

10. Whilst not defined in the Regulations, the word genuine may be taken to mean ‘authentic, real or true’ in according with its ordinary and natural meaning. The Regulations specify two constituent elements of a genuine student visa applicant. First, a genuine applicant is one who intends genuinely to stay in Australia temporarily. The applicant must demonstrate an intention to stay in Australia for a limited time only, not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student.[1] Secondly, a ‘genuine applicant’ is a person who intends to comply with any conditions to which the visa may be subject.[2]

    [1] See Singh [2019] (Migration) AATA 2993 at [13]

    [2] See the discussion of the meaning of ‘genuine applicant’ in Vu Vu (Migration) [2019] AATA 5740 (18 December 2019) [22] – [25] upheld on appeal in Vu Vu & Ors v Minister for Immigration and anor [2020] FCCA 2292

11. The issues in this case arose in the following circumstances, the applicant is a 32 year old citizen of China. He first arrived in Australia on in February 2010. He has resided here since that time on a series of student visas, a temporary graduate visa and associated bridging visas. He applied for a further student visa in August 2019, proposing to study a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management (proposed study). On 7 October 2019, a delegate of the Department refused his application (delegate’s decision). On 7 October 2019 he applied to the tribunal for a review of the delegates decision and he provided the tribunal with a copy of that decision.

12. The tribunal has read and had regard to documentation provided by the applicant to the Department and the tribunal including the delegates decision, GTE Statement, application for a student visa, National Identity Card, Passport, Bridging Visa information, Certificate of Overseas Student Health Cover.

13. On 25 May 2020 the Tribunal invited the applicant to provide further information in relation to the application in accordance with section 359(2) of the Act. The applicant was granted an extension of time in which to do so on 10 June 2020 and on 25 June 2020 he responded to the Tribunal in writing (359 Response) and provided further documents in support of the application. The Tribunal has read and had regard to the applicant’s 359 Response and supporting documents. On 24 September 2020 the applicant resubmitted further documents including Confirmation of Enrolment documents, GTE Statement, Completion letter of Bachelor of Environment Melbourne University, Statement of attainment Newton College and confirmation of completion Masters Degree. The Tribunal has read and had regard to these documents.

14. The applicant’s academic history is as follows. He arrived in Australia in 2010. He enrolled in and completed a Bachelor of Environment at Melbourne University in 2015. He then enrolled in a Master of Construction Management in 2016 which he completed in March 2017. In 2019 he enrolled in a Diploma of Leadership and Management at Newton College. He is close to completing that course and provided a Statement of Attainment to this effect. He provided the Tribunal with a Confirmation of Enrolment to commence an Advanced Diploma of Leadership and Management in November 2020. He is due to complete this course in November 2021. By this application, he is seeking to remain in Australia to enable him to complete the proposed study.

15. The applicant’s plan for the future is to return home to Shanghai and find a job in a construction business or find a job in the family business. He says his mother runs a company that is involved in accounting and international trade and he is considering joining this business upon his return. The Tribunal does not consider he has a well-developed plan for the future. His evidence in relation to his plans was vague and non-specific. He simply said the path he chooses will depend upon his state of mind upon his return.

16. His applicant’s reasons for continuing to study were elaborated on in his oral evidence. He said that he had been through some difficult personal situations between 2017 and 2019. He was married and divorced. His Grandfather and his dog died. He said he had depression during this period. He says that he is good at studying, and he ‘fell into a hole and did not want to do anything. The only thing that can calm e down was studying and it could distract me from negative things of divorce.’ The Tribunal accepts the applicant’s evidence to the effect that he experienced personal difficulties between 2017 and 2019.

17. The difficulty for the applicant on this application is the fact he is already very well qualified. He holds a Bachelor and Masters Degrees from Australian Universities. On any objective view he should be well placed to return home and find suitable employment. Whilst he is uncertain which opportunity he will pursue upon his return, the Tribunal considers he is already well qualified to find work in the construction industry, or in his family business. Neither of these possibilities seem to require further study of an Advanced Diploma of Leadership and Management. In these circumstances there is no apparent value in the proposed study.

18. The Tribunal does not consider the proposed study to be consistent with the applicant’s current level of education. His University level qualifications are well above the current and proposed study in vocational courses.

19. In the circumstances, the Tribunal does not consider the proposed course is likely to assist the applicant to obtain employment or improve his employment prospects in his home country, or a third country. It follows that the Tribunal does not consider the proposed study is likely to increase the applicant’s remuneration in his home country.

20. There is no evidence in relation to the applicant’s circumstances in her home country relative to others there.

21. The applicant states, and the Tribunal accepts that he has no concerns in relation to political or civil unrest in his home country.

22. The applicant states, and the Tribunal accepts, that he has no concerns in relation to military service commitments in his home country.

23. The applicant’s family is his parents in China and his son. He last saw his son in April 2019. He last saw his parents in May 2018.[3] The Tribunal accepts his evidence that he has travelled to Shanghai on a number of occasions and that he is in contact with his family via telephone and video calls approximately 2 to 3 times per week. He says his parents would like him to return at the completion of his studies due to Covid-19. The Tribunal accepts that the applicant has ties to his home country and he is close to his family. However, given the length of time the applicant has resided here and the fact he is seeking to further extend his time here, the Tribunal does not consider these ties to China operate as a significant incentive for him to return home.

    [3] Set out in his 359 Response.

24. There is no specific evidence to suggest that the applicant has ties to Australia that may operate as a strong incentive for him to remain here.

25. The evidence in relation to the applicant’s economic circumstances is as follows. The Tribunal accepts that he has property in China and his family own property there. The Tribunal does not consider ownership or property overseas operates as an incentive to return there. Property may be readily sold or retained and utilised to produce income. Neither scenario requires the applicant to return home and the applicant did not suggest that he was required to return due to the ownership of property. The applicant’s expenses in Australia are approximately $34,800 per annum. He says that these expenses are met by his parents and he is unable to work in Australia as he is without work rights. In these circumstances, the Tribunal does not consider the evidence establishes the applicant’s economic circumstances operate as either an incentive for him to remain in Australia or return home. They are a neutral factor on the application.

26. The applicant’s evidence is that he has travelled to China on a number of occasions. His travel appears to be without issue and he appears to have complied with the requirements of his various visas since arriving in Australia. In these circumstances, the Tribunal makes no adverse findings in relation to his travel or immigration history.

27. There do not appear to be any further matters relevant to the application.

28. The Tribunal has considered all the evidence before it. It does not consider the applicant to be a genuine applicant. It is difficult to reconcile a ten year stay in Australia with the meaning of temporary. The applicant has not demonstrated that there is any real value in continuing his studies here, in a lower level vocational course, given that he already holds Bachelors and Masters degrees at university level. In the absence of any value to the proposed study, the Tribunal considers the applicant is motivated by factors other than study and is seeking to utilise the student visa as a means of maintaining an ongoing residence in Australia.

29. 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).

30. 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.

31. 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.

32. DECISION

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

    Dominic Triaca
    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.