Zhang (Migration)

[2019] AATA 193

Zhang (Migration) [2019] AATA 193 (22 January 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Huahua Zhang
Mr Zejin Cai

CASE NUMBER:  1711856

DIBP REFERENCE(S):  BBC2017/1011917

MEMBER:David Barker

DATE OF DECISION:  22 January 2019

DATE CORRIGENDUM

SIGNED:19 February 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Paragraph 3 of the Tribunal's decision record states the following:

The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.820.211 because they were not satisfied the parties were in a genuine spousal relationship.

Paragraph 3 of the Tribunal's decision record should be replaced with:

The delegate in this case refused to grant the visas 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 they were not satisfied the applicant intends to stay in Australia temporarily.

David Barker
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Huahua Zhang
Mr Zejin Cai

CASE NUMBER:  1711856

HOME AFFAIRS REFERENCE(S):           BBC2017/1011917

MEMBER:David Barker

DATE:22 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 22 January 2019 at 7:17am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – studied high school in Australia – uncertainty and changes in vocational direction – lack of significant gaps in study history – maintained significant ties to parents at home – second named applicant – Chinese national – satisfies requirements – decision remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2 cls 500.212, 500.611

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 25 May 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl.820.211 because they were not satisfied the parties were in a genuine spousal relationship.

4. The applicants appeared before the Tribunal on 20 September 2018 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

6. The applicant is a national of China and is 26 years old.

7. The Department delegate’s decision record, a copy of which was provided with the review application states that the applicant was granted an initial Student (subclass 571) visa in October 2008, which was valid until March 2012. She subsequently arrived in Australia in November 2008.

8. The delegate noted that the Provider Registration and International Student Management System (PRISMS) which documented the applicant’s study history in Australia show she had applied to undertake a Diploma of Business Administration at the time of applying for the visa. 

9. The Tribunal has had reviewed for the PRISMS record, which indicates the applicant has been enrolled in and completed the following courses since her arrival in Australia:

   ·English for High School preparation – 2008/2009

   ·Junior Secondary years – 2009

   ·Senior Secondary years – 2010/2011

   ·Bachelor of Arts – 2013/2015

   ·Diploma of Nursing (Enrolled Division) – 2015/2016

   ·Advanced Diploma of translating – 2016/2017

   ·Diploma of Business Administration – 2017/2018

10. The PRISMS record indicated the applicant is currently studying an Advanced Diploma of Business, which will finish in March 2019.

11. On 27 August 2018, the Tribunal wrote to the applicant inviting her to attend a hearing on 20 September 2018.  That invitation among other matters, requested the applicant provide an explanation of any gaps in her enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether she intends genuinely to stay in Australia temporarily as required by cl.500.212(a) and asked her to provide a written statement addressing this issue by referring to Direction 69, which was attached.

12. On 19 September 2018, the Tribunal received documents from the applicant including evidence of her current and past academic study in Australia and a written statement.

13. The written statement from the applicant stated:

    My name is Huahua Zhang, passport number [number supplied]. I submitted my student visa application on 14/03/2017 based on Diploma of Business Administration course at Berkeley Business Institute. The application was refused on 25/05/2017.

    The refusal record states the factors of my visa refusal are:

    1.    My current enrolment in Business Administration course is unrelated to my previous study.

    2.    My total time in Australia on student visas or associated bridging visas are up to 9 years, which indicates that my potential circumstance in Australia outweigh any incentives to return to China.

    3.    The course will not add any extra value to the skills I have acquired.

    4.    The case officer is not convinced that I would be qualified enough to operate beauty salon business without a specialisation in cosmetic procedures.

    5.    My immigration record indicates that I have been onshore for 2816 days and offshore for 197 days, which makes it hard to accept I would have significant incentives to return to China.

    I explained in the GTE that my initial intention was to attend a Bachelor of Nursing degree and become a registered nurse. This career objective was changed after I met my partner Zejin Cai, after four months we got together, we planned to settle down in China. The decision to study business diploma was after serious consideration of my future career. I applied for this unrelated course because I planned to open a beauty salon with my friend after returning to China, since I have done a nursing course but have no knowledge of starting up a business, I thought attend such a course would aid me in general matters like setting up budgets and conducting implementation plan. The course is short and inexpensive, which is exactly what I was looking for at the time, because I was only going to set up a small business, it would be a waste of time and money to do another bachelor degree. The business administration course does not add any extra value to the skills I have acquired, but it adds great value to what I was planning for my future.

    My immigration history states that over the years I have been living in Australia, I have only been offshore for 197 days, this may indicate that my potential circumstance in Australia will outweigh the incentives to return to China. The reason for my relatively short offshore days is because I am afraid of height, catching an airplane terrifies me, I returned every year when I was in high school because I missed my family, but my parents started visiting me during my university years, so my offshore stay had decreased. My parents visited frequently because my sisters are here doing university as well, they were living with my elder sister during their stay. As for the potential circumstance in Australia, I do not think I would make a better life in Australia than in China. I did not work for the past 9 years, no casual or part time. My only purpose here is to study, and my parents did not want me to get distracted. Every job you apply now requires at least some experience which I do not have, that makes it hard for me to obtain a job in both Australia and China, but one thing different is that I have more social ties and family ties in China, and starting up business in China would definitely be easier for me than in Australia considering culture and language differences.

    My Diploma of Business Administration course was finished in April this year, but I was still waiting for a response for my AAT case, I did not want to have a rejected record so I progressed to Advanced Diploma of Business Administration as recommended by my tutor at the time. My friend did not wait for me to start the business because of my uncertain circumstance in Australia. We postponed our marriage plan because we found we still have many things to work on with and I wanted to have a result or this case. The advanced diploma course is mainly in the afternoon, and deep down in my heart I am still passionate in nursing, so I applied for home care jobs and successfully employed by an agency. Through my home care work, I have found myself enjoying the work more than anything else. I have thought about going back to bachelor of Nursing early this year, but it was too late to apply and most importantly, my AAT case still not finalised, I was not sure if I am allowed to enrol in another course. Moreover, the bachelor degree would cost a significant amount of money, I did not want to start it when my visa condition was unstable.

    Finally, I am very sorry to present this written statement so late, I was inexperienced about AAT process and was too excited when received the invitation to hearing as we have waited for so long. I am sorry if I have caused any inconvenience to you and thank you for reading this statement.

14. The Tribunal gave the applicant time following the hearing, to provide further documentary evidence and submissions for the Tribunal to consider before a decision is made in this matter.

15. On 24 September 2018, the Tribunal received further documentary evidence from the applicant, consistent of account statements from her and the second named visa applicant’s bank accounts.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. 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?

18. 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.

19. 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.

20. The applicant gave evidence during the hearing that was consistent with that contained in the written statement she provided with her review application. In relation to her studies in Australia, the applicant stated she completed her secondary school studies in Australia between 2009 and 2011, during which time she stayed with a home stay family, as she had no other relatives in Australia at that time.  She said she now has two sisters in Australia, who came here to study, respectively in 2010 and 2014.  She said her sisters reside together in Wolli Creek, NSW and that she resides with her partner, along with two other flatmates, in an apartment in Chippendale, NSW. She acknowledged she has been in Australia for a considerable period of time on temporary visas.

21. As to the changes she has made in courses since she completed secondary school, the applicant said she initially enrolled in a teaching degree, in respond to her parent’s wishes, but did not find this vocation suitable for her temperament.  She said she changed to a Bachelor of Arts program, as her parents wished her to continue to study at a higher education sector level.  She said she then did some voluntary work in the aged care sector and realised she was more suited for this sort of nursing work and so changed to a vocational level nursing diploma course.  She said she studied a NAATI translating course after completing the nursing diploma, as she did not want there to be any gap in her study history while she waited to enrol in a Bachelor of Nursing program, as she wished to consolidate her qualifications in this field.

22. The applicant gave evidence she then met and formed a committed relationship with the second named visa applicant.  She said he had a preference to return to China and they decided she would acquire some specific business skills so as she could go into business there with a friend, running a beauty salon. She gave evidence her friend has opened the beauty salon and that she is now unsure if there is a business opportunity there for her.  She said she nonetheless continued her business administration studies following the refusal of her application for the subclass 500 visa, finishing the diploma course in early 2018 and that she will complete the advanced diploma in March 2019.  The applicant gave evidence that she would like to study more in the nursing field if given the opportunity to do so.

23. In relation to her families’ circumstances in China, the applicant said her father is a professional share trader who is financially secure. In response to the delegate's concern that she has spent relatively little time offshore since her arrival in Australia, she contends she did return to china regularly whilst she was completing her secondary school studies and more recently her parents have visited Australia upon a number of occasions to spend time with her and her two sisters.  She contends that this has maintained strong connections between her and her family of origin.  She said her younger sister intends to return to China when she has  completed  her studies and that her elder sister intends to pursue a career in Japan

24. She said she is financially supported by her parents, but that she has since February 2018 had some part time work with a community nursing agency.  She said the second named visa applicant works part time as a wedding photographer.

25. The second named visa applicant gave oral evidence during the hearing which was consistent with that given by the applicant.

26. Having considered the applicant’s evidence during the hearing and the applicant’s circumstances overall, I acknowledge she has spent a considerable period of time in Australia on temporary visas but I accept her explanation for both her study history and study goals to be plausible.  I do not consider the uncertainty and changes in vocational direction displayed by the applicant to be significantly different to those experienced by other young people who progress straight to tertiary courses upon completion of their secondary school studies in Australia. I have given positive weight to their being a lack of significant gaps in the applicant’s study history, including in the period since the refusal of her visa application.  I note she gave some indication she is interested in undertaking further nursing studied.  However in this matter I have focussed upon whether she has a genuine intention to remain in Australia temporarily and is a genuine student in relation to the current courses she is enrolled in.

27. I acknowledge the applicant currently has two siblings in Australia on student visas and that she has also entered into a de facto relationship whilst she has resided in Australia.  I do not consider this to be a relationship of concern, as the second named visa applicant is a Chinese national and there is no indication that he is seeking permanent residency in Australia. I am satisfied the applicant has maintained significant ties to her parents, who reside in China.  I note the applicant does not have clear plans for her future employment or business opportunities in her home country, but concern arising from this does not outweigh other findings I have made in relation to her circumstances.  I note the applicant is working part time as a care assistant in Australia but am not satisfied this employment, or her partner’s income from wedding photography  provides her with a clear incentive to seek to maintain her residency Australia for economic reasons.

28. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

    Does the applicant intend to comply with visa conditions?

29. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

30. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

31. The Tribunal does not have any evidence to indicate the applicant has not complied with visa conditions in Australia. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

1. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

2. The Tribunal has considered the applicant’s circumstances as a whole and has placed weight on the fact the applicant has displayed consistency in her endeavours to complete her current study pathway.  

3. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

   Second named visa applicant

4. As the second named visa applicant applied on the basis of being a member of the applicant’s family unit, his application will be determined by reference to the outcome of the applicant’s visa application on remittal to the department for reconsideration.

5. Given the above findings, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

   DECISION

6. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.212 of Schedule 2 to the Regulations.

   David Barker
   Member