Zhao (Migration)

[2019] AATA 2264

Zhao (Migration) [2019] AATA 2264 (3 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yifan Zhao

CASE NUMBER:  1725048

HOME AFFAIRS REFERENCE(S):           BCC2017/2461432

MEMBER:Mark Bishop

DATE:3 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 May 2019 at 10:49am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant criterion not met– non satisfactory course progress –maintaining ongoing residency in Australia– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363A, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 July 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant appeared to be using the student visa program as a means of extending his stay in Australia and did not genuinely intend to stay in Australia temporarily as a full time student.

4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a copy of the applicant’s immigration, enrolment and education history. The decision record contained the detail of the applicant’s PRISMS record. The delegate made a series of findings against the applicant concerning breaches of conditions attached to visas.

5. On 22 February 2109 the Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal, including information in relation to enrolment. The Tribunal did not receive any response to that written invitation.

6. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act. That invitation stated that it is a requirement of the student visa that the applicant is enrolled in a course of study and that the applicant is a genuine applicant for entry and stay as a student and requested information which goes towards both criteria. The invitation was sent to the review applicant’s nominated address, being the address provided by the review applicant in connection with this application for review.

7. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).

8. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

9. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

10. In these circumstances, the Tribunal has proceeded to make a decision having regard to the information before it, including the information previously provided by the applicant to the Department.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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)

13. 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?

14. 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.

15. 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.

16. The delegate outlined the applicant’s visa history as follows:

    ·The applicant arrived in Australia on 12 October 2013 on a TU573 student visa. The Student Visa was granted offshore on 11 September 2013 and was valid until 30 August 2017. The Student visa was granted in order for the applicant to undertake Certificate III in ESL (Further Study) (21939VIC), Certificate IV in ESL (Further Study) and a Bachelor of Commerce at Charles Darwin University.

    ·The course ‘Certificate III in ESL (Further Study)’ and ‘Certificate IV in ESL (Further Study)’ was completed however the enrolment for the Bachelor of Commerce course was cancelled on 2 December 2014 due to ‘Non-commencement of studies’. Another Confirmation of Enrolment (COE) was issued for the same course ‘Bachelor of Commerce’ on 2 December 2014, which was due to commence on 2 March 2015. However the COE was cancelled on 13 March 2015 due to ‘Non-commencement of studies’.

    ·The applicant enrolled in Bachelor of Business (Management) (COE 74570576) at Cambridge International College on 13 July 2015. The education provider cancelled the COE on 24 May 2016 due to ‘Non-commencement of studies’.

    ·The applicant enrolled in the same course again on 13 June2016, Bachelor of Business (Management) (COE 80B88B41). The education provider cancelled the COE on 15 May 2017 due to “Student left provider - transferred to course at another provider”

    ·The delegate noted the applicant commenced their study on 25 October 2014 in the Certificate IV in ESL (Further Study) course and completed the course 10 January 2015. On 9 July 2015 the applicant then enrolled in a ‘Certificate IV in Business’ course, in the VET Sector, at Ashton College Pty. Ltd. The applicant commenced studies on 20 July 2015. The applicant was not studying from 10 January 2015 until 9 July 2015 (4 months). The applicant departed Australia on 29 January 2015 until 3 March 2015.

    ·As the applicant was no longer studying an eligible course at an eligible education provider this clearly indicates that they have not complied with visa condition 8516.

    ·As the applicant did not achieve satisfactory course progress they have not complied with visa condition 8202.

17. The applicant did not provide a GTE Statement to the Tribunal that outlined her current enrolment status or future plans. The applicant did not provide any Statements of Attainment or Statements of course progress to the Tribunal. The applicant did not provide any information to the Tribunal.

18. There is a limited amount of information before the Tribunal. There is no information before the Tribunal that post-dates the decision of the delegate of 26 September 2017.

19. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a copy of the applicant’s statement to the Department. The applicant did not challenge any of the findings of the delegate. The applicant did not point out any errors in the decision record. The applicant did not challenge the findings of the delegate as summarised by the Tribunal at paragraph 16 above. 

20. Examination of material provided by the review applicant to the Department and contained in the Departmental file confirms the correctness of the findings of the delegate.

21. Whilst the Tribunal is not bound by the findings or decision of the delegate and brings an independent mind to these review proceedings there is no evidence before the Tribunal that suggests the findings of the delegate are in any way incorrect.

22. The only information before the Tribunal is the material on the Departmental file and the decision record. The applicant has not responded to requests for information from the Tribunal. The applicant has not challenged any of the findings of the delegate. The applicant has not pointed out any errors in the decision record. The Tribunal has review all the material on the relevant Departmental and Tribunal files.

23. The Tribunal has considered the applicant’s GTE Statement to the Department (Df: 38-40) and reproduced in the delegate’s decision. At paragraph 4 of that submission the applicant referred to a physical complaint and seeking medical advice in China. The Tribunal has considered these comments.

24. The applicant has not provided any evidence of medical documents that she claims to have. Therefore the Tribunal gives this statement limited weight. The applicant had an opportunity to approach her education provider and seek a deferment during this period. The delegate made a finding the applicant did not pursue this option or seek clarification on these matters.

25. It is also reasonable to have expected that if the applicant felt that she was unable to focus on her studies that she could have deferred any further studies and returned to her home country for the entire duration rather than remain in Australia in breach of a condition of her visa.

26. It is noted their enrolment was cancelled a couple of times due to non-commencement of studies however the applicant continued to stay in Australia. This raises concerns how she managed to support herself in Australia and also raises concerns regarding her activities in Australia during this period. The legislation relating to education in Australia for international students strongly supports students who require deferral from their studies due to compelling and compassionate circumstances. There is no evidence that the applicant availed this option during this time.

27. The applicant has not provided details how her proposed qualifications would assist her in attaining her goals. The Tribunal also notes that she been in Australia for almost six years now so the applicant has had sufficient opportunity to complete any courses required to facilitate her career goals.

28. Furthermore, the applicant was granted her initial Student Visa offshore under the streamlined provider arrangements, meaning she was not subject to funds or English language criteria assessment. The applicant was provided with the grant notification which included the visa conditions of her Student Visa. As the applicant was no longer studying an eligible course at an eligible education provider this clearly indicates that she has not complied with visa condition 8516 as her previous visa was granted under streamlined arrangements.

29. The Tribunal holds concerns that the applicant has not provided evidence to demonstrate how the proposed course would benefit her future remuneration level to justify the expenses she will continue to incur while in Australia. She has not been able to adequately illustrate how the proposed study will become a viable career prospect for her future. On the whole the applicant has failed to provide a credible career plan on completion of her studies. Taking the above factors into consideration the Tribunal is not satisfied that the applicant has demonstrated the value of the proposed courses to her future.

30. The Tribunal has also taken into account the economic circumstances in the home country relative to the potential economic circumstances in Australia. The applicant has not provided any substantial evidence of close ties to her home country. She has been unable to demonstrate substantial economic ties or personal assets in her home country which diminishes her incentive to return to China. The Tribunal also notes that she has not declared any dependants. While the applicant has personal ties in the form of her immediate family the Tribunal finds that these ties do not of themselves constitute a strong incentive to return home when considered against failing to provide strong economic and personal circumstances in China. The Tribunal is concerned that the intention to live in Australia is motivated by factors other than study.

31. Further in the application before the Department the delegate made a finding the applicant provided nil employment history giving her status as a student. The Tribunal notes there was a statement from the Henan Yuhah Construction Company on the Departmental file that outlined some employment as a secretary and a limited period of leave without pay in 2017/2018 (Df: 44). However departmental records indicate the applicant’s visa work conditions were VEVO checked by prospective employers in Australia, which is usually a good indication of employment.

32. Considering the applicant’s previous study history the Tribunal is not satisfied that the applicant is genuinely seeking the proposed courses for the reasons she has declared and finds that she is more likely seeking to maintain residency in Australia.

33. The Tribunal has given regard to cl.500.212(a) (iii), which applies to applicants who are minors (i.e. under 18 years of age). As the applicant is over 18 years of age, this aspect is not relevant to this decision.

34. The Tribunal has given regard to whether there is any other matter that is relevant to the assessment of the applicant’s genuine intention to temporarily stay in Australia. The Tribunal notes the applicant has not provided any further information to the Tribunal that post-dates the delegate’s decision of 26 September 2017. The Tribunal finds that there are no other relevant matters for consideration.

    Conclusion on cl.500.212

35. 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.

36. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Mark Bishop
    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.