Zhao (Migration)

[2019] AATA 1885

Zhao (Migration) [2019] AATA 1885 (10 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Danhua Zhao

CASE NUMBER:  1723773

HOME AFFAIRS REFERENCE(S):           BCC2017/2595227

MEMBER:T. Quinn

DATE:10 June 2019

PLACE OF DECISION:  Melbourne

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

·Clause 500.212 (a) of Schedule 2 to the Regulations.

Statement made on 10 June 2019 at 7:37pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – not considered a genuine applicant – not ties to Australia – personal ties to China – husband is financially supporting – arrived on tourist visa – benefit of doubt – satisfied applicant is genuine applicant for entry – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 338, 347, 359(2), 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.211, 500.212, 500.218

CASES

Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112

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 (‘the delegate’) on 26 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 21 July 2017 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 26 September 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 3 October 2017, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. More than 19 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of her application for review. To this end, on 21 February 2019, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting her to provide information in writing about the course(s) of study the applicant was undertaking and her entry and stay in Australia as a student (‘the s359(2) letter’). The applicant provided the requested information on 28 February 2019 which was within the prescribed time period and in that response elected to have the Tribunal decide the review without a hearing.

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

7. The Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicant in relation to the visa and all the material filed with the Tribunal since the delegate’s decision which includes the additional information sought by this Tribunal under section 359(2) of the Act.

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

   STATUTORY FRAMEWORK

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 clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

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.

    Does the applicant intend genuinely to stay in Australia temporarily?

11. In considering whether the applicant satisfies clause 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’ (‘the Direction’), made under section 499 of the Act. The 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 Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.

    [1]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The applicant in this case is a 32 year old female Chinese citizen who first arrived in Australia on 18 June 2017 pursuant to a Tourist Visa (subclass 600).[2]  The applicant’s application which is the subject of this review was to study a Certificate IV in Business and a Diploma of Business.  Prior to coming to Australia, the applicant completed secondary school in 2004 in China and then commenced working in sales at Shanghai Qian in China.[3] She has left the employment section blank in relation to the period she has been onshore for in her response to the s359(2) letter.

    [2]           See delegate’s decision.

    [3]See applicant’s response to the s359(2) letter.

15. Due to delays in the applicant’s matter coming before the Tribunal, she has now completed the Certificate IV in Business and has provided a statement of completion dated 17 September 2018 to the Tribunal to support this.  The applicant has also provided a confirmation of enrolment dated 12 July 2017 for the Diploma of Business commencing on 17 September 2018 with a completion date of 15 September 2019.  In addition, the applied has filed a Statement of attainment from her course provider dated 22 February 2019 indicating she has completed two modules in the Diploma of Business and a letter from her course provider stating she is enrolled full time in a Diploma of Business, which she commenced on 17 September 2018 and which she will complete on 15 September 2019.  The Tribunal commends the applicant for her timely academic progress. 

16. In her undated genuine temporary entrant statement which is contained in the Department File titled ‘Personal Statement’ (‘the GTE’), the applicant claims that the employment market in China is highly competitive and that in order to progress her career she needs business qualifications.  She also submits that fluency in English is now essential in daily work and career development.  The applicant fails to articulate what her actual career goal is and/or what sort of role she would seek upon completion of her courses and returning to China, save for one line in her application form contained in the Department file which states she will seek a position as’ Senior Business Adminisitration / Manager’.  The applicant has not made submissions in relation to the remuneration she can expect to receive using the qualifications gained and the Tribunal is concerned about the applicant’s failure to properly articulate her future goal.  However, the Tribunal allows for reasonable changes in career and study pathways and the Tribunal does accept the applicant’s statement in the GTE that the job market in China is competitive and that the qualifications she proposes to obtain in Australia are likely to assist and be relevant to her seeking a role in Business, partly due to the improvement in her English skills from studying the courses in Australia and partly from the substance of the qualifications themselves.  Further, the courses proposed are consistent with the applicant’s current level of study.

17. The Tribunal is concerned about the fact that the applicant could complete similar courses in China without the need and expense of relocating to Australia.  However, the Tribunal considers the applicant has provided reasonable reasons for studying the courses in Australia, most particularly in relation to the benefit of fluency in English in her career prospects upon returning to China.

18. In her response to the s359(2) letter, the applicant states she has no ties to Australia. However the GTE refers to friends who have assisted her in finding the right course and course provider. The material before the Tribunal is too deficient for the Tribunal to form any firm conclusions as to whether the applicant has formed ties which would present as a strong incentive for her to remain in Australia.

19. The applicant’s response to the s359(2) indicates that she has not returned home since being in Australia and states she has undertaken no travel in the last ten years. The applicant’s application to the Department, contained in the Department file, indicates that she has both parents, a husband, a brother and both parents-in-law living in China. Her response to the s359(2) letter states that she contacts them using wechat and other internet tools but does not state how regularly this occurs. The Tribunal accepts that the applicant has personal ties to China serving as a significant incentive for her to return but is uncertain as to whether these ties are outweighing the applicant’s desires and wishes to remain onshore.

20. The applicant stated that her husband is supporting her financially in her time studying in Australia and has funds to the value of $30,000AUD equivalent for this purpose.[4] In her response to the s359(2) letter she lists significant assets in China and states that her expenses in Australia are $24,000AUD per annum. The Tribunal accepts that the applicant’s economic circumstances in China relative to Australia appear to be a significant incentive for her to return home.

    [4]           See applicant’s application form contained in the Department file.

21. The applicant’s response to the s359(2) letter stated she has had no visa or immigration issues in the past and does not have any potential military service obligations or political or civil unrest circumstances in China. The Tribunal accepts this.

22. The Tribunal is concerned about the way in which the applicant arrived onshore on a tourist visa and only then applied for a student visa. It is difficult for the Tribunal to accept that in such a short space of time, having arrived on a tourist visa, the applicant promptly researched all study and living options and decided to remain onshore for a further two year period.  The Tribunal accepts that it is possible that an applicant may seek a change in plans or to further their skills for employment reasons and remuneration opportunities, but the Tribunal is puzzled when an applicant arrives on a visitor visa and then makes sudden changes to their plans within a short period of time after arriving.  It seems unlikely to the Tribunal that a person travelling as a tourist would make such a significant change from their initial intentions to visit.  Such a significant change would necessarily include a greater level of planning and preparation before arriving in Australia considering the length of time (two years) that the applicant proposed to spend in Australia.  However, the Tribunal is impressed with the applicant’s effort with her studies and the progress she has made since her arrival.  In particular, the Tribunal notes that on the material provided by the applicant to the Tribunal, she is only three months away from completing all proposed courses.

23. The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case.  Ultimately, the Tribunal deems it appropriate to give the benefit of the doubt to the applicant.  The Tribunal notes that the Diploma of Business is due to finish in September 2019 and that the applicant is currently studying.  She is therefore approximately three months from completion.  Should the applicant make a further student visa application on the basis of her intention to undertake further study after this, the evidence she gave to the contrary in connection with this case will clearly be relevant to any assessment of her intention to stay in Australia only to study.

24. Having had regard to the applicant’s circumstances, her immigration history and all other relevant matters, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant meets clause 500.212(a) of Schedule 2 to the Regulations.

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

    DECISION

26. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·Clause 500.212(a) of Schedule 2 to the Regulations.

    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.