Zheng (Migration)

[2017] AATA 161

Zheng (Migration) [2017] AATA 161 (19 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Xuan Zheng

CASE NUMBER:  1418027

DIBP REFERENCE(S):  BCC2014/2746993

MEMBER:Adrian Ho

DATE:19 January 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 19 January 2017 at 4:32pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 580 Student Guardian - House too big for one person – Under pressure to study – Intends to remain in Australia to pursue permanent residence – Daughter can maintain own well-being – No exceptional reasons why student needs guardian in Australia

LEGISLATION

Migration Act, 1958, cl 580.222
Migration Regulation 1994, Schedule 2       

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 on 22 October 2014 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 16 October 2014 to undertake study in Australia. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course, and the subclass for which the type of course was specified by the Minister under r.1.40A (see cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Migration Regulations 1994). The relevant subclass in this case is Subclass 580.

3. The criteria for the grant of a Subclass 580 visa are set out in Part 580 of Schedule 2 the Regulations.

4. The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.580.222.

5. The applicant appeared before the Tribunal on 10 January 2017 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Clause 580.222 provides for three options for its satisfaction:

   580.222

   (1)     The applicant meets the requirements of subclause (2), (3) or (4).

   (2)     The applicant meets the requirements of this subclause if:

   (a)     the nominating student has not turned 18; and

   (b)     the applicant is able to:

   (i)     provide appropriate accommodation and support for the nominating student; and

   (ii)     provide for the general welfare of the nominating student; and

   (c)     the applicant is either:

   (i)     a parent of the nominating student or a person who has custody of the nominating student; or

   (ii)     a person who:

   (A)     is a relative of the nominating student; and

   (B)     has turned 21; and

   (d)     if subparagraph (c)(ii) applies — the nomination of the applicant is supported in writing by:

   (i)     a parent of the nominating student; or

   (ii)     a person who has custody of the nominating student.

   (3)     The applicant meets the requirements of this subclause if:

   (a)     the nominating student has turned 18; and

   (b)     the Minister is satisfied that there are exceptional reasons why the nominating student needs the applicant to reside with the nominating student in Australia; and

   (c)     the applicant is able to:

   (i)     provide appropriate accommodation and support for the nominating student; and

   (ii)     provide for the general welfare of the nominating student; and

   (d)     the applicant is a person who:

   (i)     is a relative of the nominating student; and

   (ii)     has turned 21.

   (4)     An applicant meets the requirements of this subclause if:

   (a)     the Minister is satisfied that the grant of the visa to the applicant will significantly benefit the relationship between the government of Australia and the government of a foreign country; and

   (b)     the applicant has turned 21; and

   (c)     if the nominating student has not turned 18 — the nomination of the applicant is supported in writing by:

   (i)     a parent of the nominating student; or

   (ii)     a person who has custody of the nominating student.

8. The requirements of the criterion were summarised for the applicant at hearing.

9. As suggested, the option provided in subclause (2) is not met because on the applicant’s own evidence the nominating student, her daughter, is 25 and has already turned 18.

10. The applicant was invited to identify an element of the grant of the visa that would significantly benefit the relationship between the government of Australia and the government of a foreign country.

11. The applicant spoke of the great pressure her daughter was under to study, and the property they own which was large and where she worried about her daughter living there alone.

12. She was brought back numerous times to the content of the invitation and had no meaningful response.

13. As suggested, the tribunal cannot identify an element of the grant of the visa that would significantly benefit the relationship between the government of Australia and the government of a foreign country, and subclause (4) is not met.

    Exceptional reasons

14. As suggested, subclause (3) requires that there are exceptional reasons why the nominating student needs the applicant to reside with the nominating student in Australia.

15. As suggested, the focus of the requirements are the needs of the nominating student, and there must be exceptional reasons why the student needs the guardian in Australia.

16. The applicant was encouraged to articulate all of the reasons why the student needed the guardian in Australia, and to explain why the tribunal should consider those reasons to be exceptional.  

17. The evidence given relevantly included:

    a.Both mother and daughter wish to live and work permanently in Australia;

    b.They love Australia, have a big property, and don’t want to sell it;

    c.The intention is for her daughter to graduate and start work here;

    d.She just wants to accompany her daughter to finish the last semester;

    e.A doctor has advised her daughter to defer study due to the pressure she is under, but instead of doing that, she is studying, but at a more manageable pace;

    f.She has a business and company here which she wants to attend to – the business exports wine to China;

    g.When pressed – she said she did not manage the business and a friend’s daughter manages the business;

    h.She does not know how much profit the business makes;

    i.Her daughter needs her here;

    j.When asked for more details – she said she had told the tribunal before, her daughter was under great pressure to study;

    k.Her daughter knows how to buy food outside, how to clean the house which she – the applicant – owns, how to commute to university and has her own driver’s licence.

18. It was suggested that as her daughter appeared to be able to do all basic and necessary things to live and study, there may not be any exceptional reasons for the applicant to accompany her in Australia.

19. She responded by saying the house they own was too big for one person.

20. Doubt was expressed that the size of the house was an exceptional reason, even if it be “too big” for one person.

21. She responded by requesting she be allowed to accompany her daughter for the remainder of her daughter’s studies and the doctor said it was better for her daughter to be accompanied.

22. She agreed she wished to stay in Australia permanently, and that the family would continue to attempt to obtain permanent residence, which is why they haven’t sold the house.

23. It was suggested that the ‘expert’ report submitted appeared to support the proposition that in modern China boys and girls mixed freely, and culturally there would be no objection to her daughter living independently in Australia.

24. She discounted the reliance placed on cultural, traditional or religious factors and said the main points were that her daughter’s mood was not stable and also that she – the applicant – wished to remain and pursue permanent residence.

    Findings

25. The nominating student will be 26 years old next month in February.

26. The applicant gave evidence that the family moved to Australia in 2006 on a business visa and their intention was and remains to obtain permanent residence in Australia.

27. As suggested, that is the proximate reason why the applicant wishes to stay on in Australia.  The applicant described how their plans to obtain permanent residence out of the business visa they had were defeated by her husband having to move back to China for personal reasons after the death of his mother shortly before he achieved the two year residence requirements needed.

28. As suggested, the focus of the requirements are the needs of the nominating student, and there must be exceptional reasons why the student needs the guardian in Australia.  Therefore, a wish to stay to run a business, to maintain a house owned, because of a love of Australia, or to pursue permanent residence are not factor relevant to the issue to be decided.

    The needs of the nominating student

29. The tribunal acknowledges the arguments made, mainly in writing, based on Chinese culture, tradition and religious.  The applicant discounted her reliance on these claim at hearing, which were made in writing when she had a migration agent.  As suggested, the ‘expert’ material submitted indicates that males and females mixed freely in modern day China and the tribunal finds that it is culturally acceptable for the applicant’s daughter to live without her parents and independently in Australia, as many other Chinese male and female students do.

30. The tribunal acknowledges the written claims that the applicant has raised her daughter according to strict traditional values.  The proposition of the migration agent (f.29) and the applicant (f.27), not referred to at hearing, is that for the Chinese, a daughter should live with her parents until she completes her education or is married.

31. That is not a tradition now shared by the families of the many unmarried Chinese male and female overseas students who live and study in Australia without their parents in the country.

32. When reference was made by the tribunal to the notion that culturally it was acceptable for the applicant’s daughter to live independently in Australia, the applicant discounted the claim and indicated that the tribunal should place weight on her daughter’s mood and her wish to stay on to pursue permanent residence. 

33. The tribunal considers that, despite the arguments made for her by her former migration agent, the applicant has no particular personal objections to her daughter living independently in Australia and there are no exceptional reasons for her to accompany her daughter based on culture, traditional or religion. 

34. On the applicant’s evidence, her daughter is able to carry out all of the daily tasks necessary to maintain her own well-being in Australia, to maintain her home, and to get herself to university and back again.

35. In her written statement (f.22) the nominating student writes of her personal connexion with her mother, her eschewing social contact with boys/men, and her emotional reliance on her mother. 

36. The claims made in relation to the nominating student’s ‘mood’ or mental health were not well particularised and the tribunal is not satisfied the applicant’s daughter has any mental or other condition which cannot be supported by support services available in Australia.  Additionally, the applicant can continue to provide support to her daughter by use of modern means of video and audio communication over the internet, and the tribunal sees no exceptional reason requiring the applicant’s physical presence in Australia to accompany her daughter, who is now almost 8 years into her adulthood and is able to live and study independently in Australia without the physical presence of a guardian.

37. For these reasons, as suggested, the tribunal finds there are no exceptional reasons for the nominating student to need the applicant to reside with the nominating student in Australia.

38. Therefore, subclass (3) above is not satisfied and for the above reasons, Clause 580.222 is not met.

39. There is no evidence the applicant can meet the primary criteria in any other subclass, and the tribunal finds she cannot.

40. The decision not to grant the visa is affirmed.

    Attempt to prolong stay to pursue permanent residence

41. Based on the applicant’s own evidence, the tribunal considers that the applicant seeks to use the student guardian visa to maintain her long residence in Australia and to continue to seek permanent residence, a process the family commenced with their arrival in 2006 on a business visa where, later, her husband had to leave Australia shortly before meeting residence requirements that were needed for permanent residence.

42. There is nothing untoward in that intention per se.  However, it casts serious doubt as to whether the applicant would meet the Genuine Temporary Entrant criterion which applies equally to subclass 580.

43. As the applicant does not meet Clause 580.222, it is unnecessary to consider the Genuine Temporary Entrant criterion.

    DECISION

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

    Adrian Ho
    Member