Zhou (Migration)

[2019] AATA 2212

Zhou (Migration) [2019] AATA 2212 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Lu Zhou
Mr Zhendong Zhang

CASE NUMBER:  1713922

HOME AFFAIRS REFERENCE(S):           BCC2017/702663

MEMBER:David Barker

DATE:25 February 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 25 February 2019 at 8:06am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – credible witness – reasons for undertaking study in Australia – early childhood education and care – regression in level of study – change in study and career direction – relevance to stated business goals – immigration history – length of time in Australia – lack of regular departures – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.12; Schedule 2, cls 500.212, 500.311

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 9 June 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 21 February 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.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because there was insufficient evidence to demonstrate that the applicant is a genuine temporary entrant.

4. On 14 November 2018 the Tribunal received a written notice from the applicant indicating the second named visa applicant had withdrawn their request for a review of the Department’s decision to refuse their visa application.

5. The applicant appeared before the Tribunal on 12 December 2018 to give evidence and present arguments.

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

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

   BACKGROUND

8. The applicant is a national of China and is 31 years old.

9. The Department delegate’s decision record, a copy of which was provided with the review application states the applicant first arrived in Australia in June 2008, as the holder of a Subclass 572 Student visa and that since that time they have held either a student visa or associated bridging visa except for the period from August 2015 to February 2017 when they held a Subclass 485 Temporary Graduate Work visa.

10. The delegate noted that at the time her application for the Subclass 500 Student visa was lodged in February 2017, the applicant held the Subclass 485 visa and had enrolled to undertake the following courses:

    ·Certificate III in Early Childhood Education and Care

    ·Diploma of Early Childhood Education and Care

11. The delegate noted that an examination of the Provider Registration and International Student Management System (PRISMS) indicated that the applicant has previously been enrolled in the following Courses:

    • English for Vocational Education
    • Advanced Diploma of Hospitality Management
    • Certificate II in Business
    • Certificate III in Business
    • Certificate IV in Marketing
    • Advanced Diploma of Management
    • Certificate IV in Business
    • Diploma of Management
    • Bachelor of Accounting

12. At the time of her application  for the Subclass 500 Student visa the applicant provided the Department with a written statement addressing genuine temporary entrant issues, which stated:

    My name is Lu Zhou, and l am looking forward to start my childcare certificate and diploma courses in Australia. The purpose for me to write this statement is to clarify why t want to study childcare courses in CHC service and with some personal situations. I am going to justify myself with several reasons as following:

    1.       My personal interests in the field of Childcare
    I participated all important moments about my little niece which are memorable, so I realize the beauty of children. It is not just about loveliness of children, but also changes my character. I think I love to be with children, and I am willing to do work in relation to children. I want to expand my professional skills and knowledge about childcare, so that I will do something for my country's childcare education industry after graduating.

    Furthermore, my future plan after finishing childcare course is to operate a childcare centre In China with one of my relatives who have experiences about early education. Since my previous major was accounting and I also learnt some skills and knowledge about business, those advanced concepts and operating methods are significantly helpful for me to manage the centre. In addition, both commerce and childcare qualifications will promote my competitive advantages in Chinese compatible job market.

    2.       Why study in CRC
    The qualifications in CHC service will be assessed by Australian Qualifications Framework, which means that I can take this qualification anywhere and work as an accredited educator. This educational institution is suitable for students who might be seeking to formalize their knowledge. Most importantly, the courses provide by CHC service is also appropriate for new entrants, because there is no prerequisite. Therefore, it Is easy to jump into this field and execute my future plan.

    Moreover, CHC is designed to cover all the comprehensive information I need to acquire and provide 120 hours to work placement, which is more practical than other institutions. As a student in CHC, I will get on the-job training to ensure I have all practical and professional skills about childcare. I believe that twill be an experienced new educator when I commerce
    my job in China.

    CHC provides me a comprehensively theoretical and practical training in the field of childcare with reasonable tuition fees. Therefore, I choose CHC as a platform for my future career.

    3.       Why I study In Australia
    As I believe and I undoubtedly feet, Australia is a multicultural country that welcomes people from other countries worldwide. The living conditions, studying environment and campus activities are desirable for all overseas students. Moreover, Australia possesses teaching resources with an excellent quality, which can be easily accessed by international students to gain competitive qualifications. Additionally, the life and study experience in Australia are valuable and unique so that I will be benefited a lot during my studying, which makes me more outstanding among my competitors.

    4.       Current trends and importance of Childcare in China
    Since Chinese government has decided to end its decades-long one-child policy in 2015 and encourages younger couples to birth the second child, China's birth rate has Increased rapidly by 75% in last year. Besides, although National Education Department has increased the expenditure on early childhood education, there is about 150 million children cannot be well-educated. Also, childcare centre providers claimed that it is difficult to recruit qualified educators, especially in undeveloped provinces. Consequently, China experiences a shortage of early childhood educators.

    Furthermore, parents are willing to pay more attention on early childhood education, so the childcare industry is now thinking highly In my country as well. This is the key reason that Australian qualifications, particularly with overseas training experience can help me take huge advantages In China.

    Ma result, these reasons I mentioned above motivate me to study childcare, to mitigate its scarcity and most importantly establish a better future opportunity for my career when I go
    back to my country.

    5. Why my partner applies student depended visa with me
    My partner Zhendong Zhang and I met in Central Queensland University in February 2013. We are studying same major and In a same class and luckily we are come from the same city
    in China.

    I was attracted on his kindness and humour. He is the person who can always make people laugh. We started our relationship on 30 July 2013. We both like watching movies so we always went to cinema when there's new movie released and have dinner together. I have to say he is the best chef that I even seen. He can cook lots of traditional Chinese dishes and he always invited me to his home and cook for me. I felt so lucky to meet him because I totally have no idea about how to cook, but since I met him, this problem has been solved.

    Zhendong is a really good man since we living together I found he always put me in first priority, such as cook the dishes which I like most, do housework so I don't have to do and once I said "I should be the person to wash dishes because you always cook, we should share the housework", but he said to me "no, a girl should take care her hand, the detergent will hurt hand skin. I was so touched because he always does such little things for me, and at that time I believe that he is the right person for the rest of my life.

    Now we have been together for three and half years, and last year we went back to Qingdao, China for our engagement. We plan to hold our wedding ceremony in Qingdao, China after my studying, because most of our relatives and friends are there.

    At last, I want to clarify myself that I have always strictly followed the rules of being an International student. My attendance in the university was 100%, and I passed all examinations and assessments. I never do anything that is illegal things or breach visa conditions. Moreover, I have no visa refusal history or overstayed when my visa expired and immigration history. Since our partner and me will get marry in China and all our family remembers and relatives live in my hometown, twill go back once I finished my courses.

13. In determining the applicant did not meet the required genuine temporary entrant criteria, the delegate found it difficult, given the length of time she had already resided in Australia and the lack of regular departures, to reconcile the applicant's extensive proposed stay onshore with their claim they are a genuine temporary resident.  The delegate also expressed concern that the applicant’s proposed further study was at a significantly lower academic level than courses she had previously studied and that she appeared to enrol in new courses for the purpose of securing a further student visa to prolong her stay rather than due to a genuine interest in studying to benefit their career outside Australia.

14. In response to an invitation to the applicant from the Tribunal to provide documents or arguments she wished to rely on in her review, the applicant provided documentary evidence including, but not limited to, evidence of her current and past academic studies and written submissions from her representative, which amongst other things stated:

    1) 06/2008 - 01/2011
    The applicant Lu Zhou arrived in Australia in June 2008 on a student (subclass 572) visa, for taking a packaged course at Carrick Institute of Education (CIE)-English for Vocational Studies, Certificate CIII in Hospitality (Patisserie) and Advanced Diploma of Hospitality Management. With continuous efforts, the applicant completed the Packaged course successfully in September 2010. That was her first time studying abroad. The applicant was not familiar with all aspects of Australia when she initially arrived in Australia, for instance her language skills needed to be strengthened. The applicant was under great study pressure, therefore she made use of vacations to study and adapt to Australian environment, and did not go back to China though she missed her family a lot.

    After her study at CIE was completed in September 2010, the applicant was busy seeking further study advice and applying for the courses at Australian College of Technology (ACT) that started in November 2010. When her study at ACT got on the right track, the applicant returned to China in January 2011 to visit her family and then spent a happy Spring Festival with her parents.

    2) 02/2011 - 02/2013
    When studying Advanced Diploma of Hospitality Management at CIE, the applicant learned some business-related units, such as Manage workplace diversity, Lead and manage people, and Develop and implement a business plan. Gradually the applicant found that she was quite interested in business. Besides, business knowledge was widely used in various fields, and studying it would be of great benefit to her career development. Therefore, she wanted to take further business-related courses, especially in management and accounting fields. After completing the courses in CIE in September 2010, the applicant originally intended to study a business-related bachelor course at CQU. However, the bachelor course at CQU only started in February 2011. In order to comply with the student visa requirement by not having more than 2 months study gap and lay a more solid foundation for subsequent bachelor course, the applicant chose to study Certificate II in Business at ACT. When the applicant planned to transfer from ACT to CQU in February 2011, ACT did not issue her a release letter. She had no option but continue her study in ACT. Certificate II in Business was subsequently completed in September
    2011.

    Later on the applicant transferred to Uniworld Business College to continue her business study. The reason for changing the education provider was that the applicant thought Australian College of Technology did not provide a good environment and resources, and its teaching quality was below the expectation. Besides, there were so many students in a class, so the teacher was unable to pay attention to each individual. At the same time, one of the applicant's friends studied at Uniworld Business College. She told the applicant that the teaching resource at Uniworld is good and the class size is small, which is much easier for students to approach teachers regarding any academic question. Therefore, the applicant transferred her study to Uniworld and commenced Advanced Diploma of Management at the end of October 2011. However, after about three months' study at Uniworld, the college was closed down in January 2012.

    Though the applicant was very interested in business-related courses, the learning process was not as smooth as expected. During her previous study at ACT, she struggled and spent extra six months to complete the course Certificate II in Business. She wanted to enter into bachelor study, however, also worried if it would be too challenging for her to complete at the time. Therefore, after the close down of Uniworld the applicant decided to transit into Certificate IV in business and gradually enrich her professional business knowledge before starting bachelor study. Consequently the applicant began to study Certificate IV in Business at IBN in March 2012 and completed it in September 2012. After that, the applicant continued to study Diploma of Management at IBN. When it came to January 2013, the applicant decided to withdraw from Diploma of Management. On one hand, she thought that she had accumulated enough practical business knowledge and skills. On the other hand, the applicant's intention to study business at bachelor level had not changed, and the bachelor course at CQU would begin in February 2013, so she transferred to CQU.

    The study challenges the applicant had faced as well as the school shutdown during 2011-2012 prevented her from returning to China during this period. From February 2011 to September 2011, the applicant focused on her study of Certificate II in Business at ACT, so she did not consider going back to China during this half of a year. From September 2011 to early 2012, the applicant went through two transfers. She was physically and mentally exhausted, so she did not return to her home country. From March 2012 to February 2013, she focused on her study in IBN, trying to grasp the professional business knowledge as soon as possible so there would be no delay in getting into bachelor study; hence she did not have time to fly overseas. The applicant received the CoE for her bachelor study at CQU in February 2013. Her dream of studying a bachelor course finally came true. The applicant was really excited and hoped to have a rest before commencement of the course in order to gain enough energy for the new year. So she flew back to China, stayed in China for a few weeks and spent a happy Spring Festival with family, relatives and friends.

    3) 02/2013 - 06/2014
    The applicant returned to China in both 2013 and 2014, which is quite normal for international students. After returning to Australia in early July 2014, the applicant accomplished the bachelor course successfully in July 2015 with strong focus and
    dedication.

    4) 07/2014 - 11/2016
    From July 2014 to July 2015 was the applicant's last year for bachelor study. She hoped to study hard and try to graduate smoothly. After completing her bachelor study in CQU in July 2015, the applicant applied for subclass 485 visa for gaining some relevant work experience in Australia. In that way, she would be more advantageous when seeking jobs in China in the future. However, after looking for a period of time, the applicant found that it was difficult to find a relevant job as a fresh graduate.

    Summary
    From first arrival in June 2008 to July 2015 when she finished her bachelor study, the applicant has studied in Australia for 7 years in total. During this period, the applicant has completed an English course, Certificate III in Hospitality (Patisserie), Advanced Diploma of Hospitality Management, Certificate II in Business, Certificate IV in Business and Bachelor of Accounting.

    From the above, it can be seen that the applicant has spent almost all her time on study. The main purpose of her coming to Australia is study, so she did not choose to travel frequently between Australia and China. Moreover, during this period, the applicant has transferred her study four times. Transfer process is complex and time-assuming. The applicant has spent a lot of time in preparing for each transfer, which is another major reason why the applicant could not return to China every year. Even so, the applicant has departed Australia four times especially during Chinese new year periods, which is more than enough to prove that the applicant has close ties to China.

    When holding subclass 485 visa, the applicant originally planned to gain some work experience in Australia so as to add advantages during her future job seeking in China. So she did not return to China very often because she thought she might miss out on some important interviews or recruitment information. Therefore, the applicant returned to China in November 2016 for one month during that period.

    3. Further qualifications are likely to enhance the applicant's career prospects significantly upon the completion of her studies
    While the applicant was exploring work opportunities in Australia, she had also kept a close eye on Chinese job market. She realized that accounting study has been quite popular among undergraduate students in China in recent years, which has led to oversupply of accounting talents. There are too many junior accountants in China so the competition gets heavily fiercer than before. Additionally, the advent of financial robot also makes the applicant feel a sense of crisis. With high efficiency and 24/7 uninterrupted work, the financial robot can complete the work in several minutes while a human got nowhere to compete with. Considering the above, the applicant was very serious about giving herself a Plan B in her career direction.

    The early child education caught her attention since she always loves playing and spending time with kids. Most parents in China pay lots of attention to their children's early education and development, especially in capital and coastal developed cities. Because the brain, closely related to intelligence, develops in the fastest way in early childhood, so early childhood education has particularly a great impact on intelligence. In addition, early childhood is the best time for developing thinking. Coincidentally, the applicant has a very good friend who is engaged in early childhood education and manages an early education institution in China. Her friend has told the applicant that this industry develops very well in China and it enjoys a good prospect. More importantly, the applicant personally loves kids and she likes to communicate with people. So with thorough thinking and in-depth conversation with her parents, she decided to work in early learning industry when she returns to China in the future. For sure this kind of job will not be easily replaced by any robotic worker in the foreseeable future. For a person who is willing to participate in childcare field, learning professional knowledge and skills is a must. That is why the applicant enrolled to study Certificate III Early Childhood Education and Care and Diploma of Early Childhood Education and Care at CLIC in March 2017.

    Because the applicant had no systematic knowledge about childcare before, she chose the above packaged course. This can also explain why the applicant intended to take TAFE courses even though she has completed a bachelor degree before. Moreover, she learnt from people in childcare industry that TAFE teaches more hands-on knowledge while university focuses on theory and children's psychology. Through Certificate III in Early Childhood Education and Care and Diploma of Early Childhood Education and Care, the applicant can acquire many childcare knowledge and practical skills, such as Support children to connect with their world, Develop positive and respectful relationships with children, and Provide care for children. The applicant will know how to deal with any problems she will encounter in the real world. These two courses lay a good foundation for the applicant entering a childcare center in the future. Given all that, we cannot determine the value of a course by its level. Although Certificate III and diploma are lower than bachelor, they are more practical, and play a vital role for the applicant's career goal.

    After graduation, the applicant plans to go back to China and work as a teacher in an early learning center or kindergarten in her hometown Qingdao and then seek to become a supervisor at a later stage. The applicant hopes that she can operate and manage a childcare center in the future. She has also done lots of research into childcare job prospects and remuneration in her home city.
    For instance, when qualification requirement is technical secondary school, the salary is RMB 3000-5000 Yuan/month.
    Recruitment advertisements:

    Early childhood teacher        RMB 3000-5000Yuan/month
    Qingdao Yunzhuo Education and Technology Co., Pty.
    Qualification: Technical secondary school
    Job requirements:
    1. Extravagant, caring, responsible, easy-going, with good communication and
    coordination abilities;
    At least one year work experience in early education center or parent-child garden;
    With early childhood teaching certificate will be preferred.
    Link: http//jobs.zhaopin.com/CZ679717130j00090422014 htm
    When qualification requirement is diploma, salary is RMB 6001-8000Yuan/month.

    Early childhood teacher        RIVER 6001-8000Y11an/month
    Qingdao Bosiwenguang Education and Technology Co., Ltd.
    Qualification: Diploma
    Job requirements:
    I. With the major of education, early childhood education, primary education, Psychology, special education will be given priority;
    With children's teaching experience, teachers with pre-school teaching experience and training experience will be given priority;
    Optimistic, cheerful, patient, and love education.
    Link: http//jobs.zhaopin.com/CZ81305646010009.5355411.htm

    In addition, many educational institutions explicitly request that early childhood
    teachers should have a relevant diploma or above qualification. Therefore, the two
    preschool courses at CHC will help the applicant achieve her future career goal. This remuneration level is above medium in Qingdao China.

    4.       Further education in Australia will be of significant benefit in achieving the
    applicant's stated goal given the qualifications she has already obtained in Australia
    As mentioned above, the applicant chose to study Certificate III in Early Childhood Education and Care and Diploma of Early Childhood Education and Care to make preparation for future work in a childcare center in China. Her current highest degree is bachelor, but the major is accounting. If she does not take the two childcare courses, the applicant will only have knowledge of accounting and business. When seeking a job in China in the future, she could not compete with those with childcare background. So it is necessary for her to learn some childcare knowledge before starting to work in the relevant field. The ultimate goal of the applicant is to open and manage a childcare center in China, so the business and accounting knowledge she has learned previously will be helpful in bringing opportunities for advancement and achieving long-term career goal. Therefore, the business courses she has completed and the new courses complement
    each other, and both serve the applicant's career goal.

    5. Though the applicant has studied in a variety of fields, her career goal is clear
    The applicant was only 21 years old when she decided to study in Australia in 2008. She was not mature enough to have a clear idea of what the major she would study or what kind of work she would do in the future. Qingdao is a tourist city and its hospitality industry develops very well. During that time, 2008 Olympic Games was about to be held in China. Qingdao was the venue for the sailing events of 29th Olympic Games and 13th Paralympic Games in 2008. These events have greatly promoted the local tourism and hospitality industry. Therefore, with her parents' advice, the applicant chose to study hospitality at first. As mentioned above, when studying Advanced Diploma of Hospitality Management, the applicant came into contact with some business units and then she found herself quite interested in business. Moreover, business knowledge has been widely used in various industries and fields. Therefore, after completing Advanced Diploma of Hospitality Management, the applicant chose to study business program. The courses she has completed include business, management and accounting, all of these belong to business field, only the focus is slightly different.

    When Bachelor of Accounting was completed, the applicant was 28 years old. Her thinking developed mature and she had certain cognition of herself. She knew what she wanted to do and what kind of person she wanted to be. The applicant does not like to deal with computers and numbers every day. She hopes to have more interaction at work. Plus she likes children a lot, so she decided to choose childcare as her future employment area. Although the applicant has studied different courses, it is in the learning process that she gradually has a clear career plan and confirms her future employment direction. Moreover, the business, management and accounting knowledge she has learned before is not useless. Instead, it can bring her more opportunities for promotion and also help her achieve long-term career goal of managing a childcare center in the future.

    6. Current employment that is relevant to her current intended study plan
    When Lu Zhou submitted subclass 500 visa application on 21 February 2017, she had no childcare skills or qualification. As we all know, relevant qualification or skills are prerequisites for finding a relevant job, so the applicant did not have any related work experience at the time. After completing Certificate III in CHC, the applicant got an opportunity to work casually at World Tower Childcare Centre in December 2017. Her position is Childcare Educator, so she can test the knowledge learned from Certificate III in practice and accumulate some practical experience. During the work, the applicant found that she was more and more fond of childcare field, which further strengthened her willingness to work in the childcare field after returning to China.

    7. Genuine interest in studying to benefit her career outside Australia
    Currently the applicant is studying Diploma of Early Childhood Education and Care. The course is vital for her future career plan, and is not used to merely extend her time in Australia. Before holding the 485 visa, the applicant has returned to China for a few times. For most of the other time, the applicant has focused on her study in Australia. For detailed information, please see Part 2 of this statement.

    During 485 visa period, the applicant aimed to find a suitable job in Australia, accumulating relevant work experience and increasing the competitive advantage for future employment in China. However, most of Australian companies prefer to recruit locals/PR instead of 485 visa holders. As a result, it is difficult for the applicant to find a matching job. But she is a person who never gives up easily, so she continued to pay attention to relevant recruitment information in Australia. In the meantime, she kept a close eye on the Chinese job market. Through communications with parents, friends and relatives in China during that period, the applicant found that early childhood education develops very well in China. Besides, she personally loves to communicate with kids, so her interest in childcare developed much deeper and she hoped to work in this field in the future. The applicant hurried to look for a suitable school and choose courses after she made a decision. With the advice of professional course consultant, she finally chose Certificate III in Early Childhood Education and Care and Diploma of Early Childhood Education and Care. The applicant got the CoEs on 14 February 2017 and then submitted 500 visa as soon as all the materials were ready. Therefore, the applicant is a genuine student and she applied for the new courses for future career plan, not to extend the time in Australia. Now almost 1.5 years passed by, Lu Zhou has successfully completed CIII in Early Childhood Education and Care and she is currently studying Diploma of Early Childhood Education and Care while accumulating relevant industry experience. Her current program will finish in only 6 months' time.

    8. It is essential for the applicant to obtain qualifications from Australia rather than her home country
    Firstly, many parents in China attach great importance to their children's early development and education. They are more inclined to send their children to bilingual kindergartens or early education centers. The applicant's English ability will be further improved during her study in Australia. She will have more advantages over local graduates when she goes back to China and work in early education industry. Secondly, early childhood education concepts in Australia are totally different from those in China. Australian early childhood education emphasizes on "developmentally appropriate practice". It aims to cultivate children's creativity, autonomy and critical thinking. China, by contrast, is teacher-oriented. All students do the same thing, so there is no chance to work independently or have group discussion; etc, which is not conducive to students' overall development. Thirdly, courses in China are full of theories. Upon graduation, students will only have theoretical lcnowledge, but do not lcnow much about how to apply them into real practice. Australian courses are highly practical as they focus on cultivating students' practical skills. Fourthly, it will cost the applicant three years to complete a diploma course in China. However, the applicant can complete Certificate III in Early Childhood Education and Care and Diploma of Early Childhood Education and Care in around two years. She has already completed Certificate III in Early Childhood Education and Care, and the diploma course can be finished in about half a year. Fifthly, if the applicant goes back to study in China now, she should sit Gaokao (college entrance examination in China). However, she came to study in Australia after graduation from high school. She is unfamiliar with the curriculum and teaching methods in China, so she has to readjust herself. Therefore, it is not in line with the applicant's actual situation to go back to study in China. In conclusion, it is essential and a better choice for the applicant to continue her studying in Australia.

    The applicant is currently enrolled in Diploma of Early Childhood Education and Care at CRC and makes satisfactory performance in her study along the way. She will graduate in June 2019 before she goes back to start her career in China.

1. The Tribunal gave the applicant time following the hearing to provide further documentary evidence, including bank records, to support her claim that she does not have a financial incentive for seeking to maintain her residency in Australia.  On 28 December 2018, the applicant provided the Tribunal with further evidence, including: a written statement, bank account statements, information regarding the Bridging visa (WB / 020) she was granted in June 2018.  The written statement  stated:

   This is Lu Zhou, the AAT applicant for subclass 500 student visa refusal with case number 1713922. Upon AAT hearing I was required to submit my recent 6 months Australian bank statements. I would like to make some elaboration before you could make the favorable decision.

   Right now I am studying Diploma of Early Childhood Education and Care at CHC. Study has always been my priority in Australia. In the spare time, I also take part-time jobs to widen my horizon and improve myself. Even though I am holding a Bridging Visa B with unlimited work conditions, I still spend most of my time on study or related activities. I only work casually when time permits and I will make sure the work does not affect my study.

   The part-time job in Jgh Lu
   I work in Jgh Lu, a cafe, as it is short of hands, especially on Sundays. The boss really needs someone like me who has relevant work experience in a Cafe environment and hopes that I can work there during weekends especially on Sundays. I value it very much as I can take the opportunity to practice my English communication skills beyond my day to day life, get to know more about different cultures and people from various backgrounds, consequently enhance my social skills. I strongly feel this will be very beneficial for my future career in China as aside from professional knowledge and skills, overall abilities such as  communication skills are also quite essential for me to have a good career development. Also I enjoy chatting and having laugh with local Australian people and treat it as another fun way of spending my Sundays.

   My current course will be completed in June 2019, so I truly hope I can make good use of the remaining time in Australia to practise and improve myself and enjoy Australian multicultural society because chances like this will not happen very often once I go back to my hometown in China. As long as it does not affect my study progress, this casual job brings a lot more benefit to me mentally than I expected.

   The part-time job in Bimbee Pty. Ltd. (World Tower Childcare Centre)
   Concerning the casual work in World Tower Childcare Centre which operated by Bimbee Pty. Ltd., an early childcare center, my study of early childhood education and care at CRC requires students to intern in an early childcare so we can better understand and apply the knowledge learned into real practice. Besides, it was during this work that I found myself more and more fond of childcare field, which further strengthened my willingness to work in the childcare field after returning to China. I am desired to work in a bilingual childcare or early learning center in my home city, as lots of them adopt western early learning philosophy such as Reggio Emilia approach. With practical experience gained in Australia, I am sure my prospect of finding such a job once I get back to China has been greatly enhanced. I treat working at Bimbee as part of my study journey and truly gained a lot more from it than by
   purely reading textbooks.

   As mentioned above, I take my study as priority and I only spend my spare time on casual work to accumulate experience and enhance myself for having a better future in China. Therefore it would be much appreciated if you could kindly consider my
   situation and make a favorable decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. 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.

3. 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?

4. 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.

5. 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.

6. I found the applicant to be a credible witness who gave her oral evidence in a calm, matter of fact manner without embellishment.  The applicant’s oral evidence is consistent with the written submissions and other documentary evidence she has provided with her review application and I am satisfied weight can be placed on the applicants’ evidence.

7. With regard to whether the applicant has sound reasons for not undertaking the study in the home country or region if a similar course is already available there. I am satisfied the applicant has provided a plausible explanation for undertaking the early childhood education and care courses that she is currently enrolled in.

8. I am satisfied that she has provided a plausible explanation for why she is undertaking these vocational level courses , after previously successfully completing a  higher education sector Bachelor of Accounting course. I am satisfied there are not significant gaps in the applicant’s study history and that there are plausible explanations for changes she has made with respect to education providers and vocational pathways.

9. I acknowledge the applicant has now spent a considerable period of time in Australia and have placed some adverse weight on this finding.  However, I have placed positive weight upon the applicant’s plausible and convincing evidence she has provided regarding her future business and employment plans in her home country and the relevance of her current studies to these stated goals.

10. With regard to the extent of the applicant’s personal ties to their home country, I am satisfied that the applicant has familial ties in China and now that her relationship with the second named visa applicant has ceased, she has no relatives in Australia. I accept the applicant’s evidence that she is an only child and that she feels connection to her parents and grandparents in China.

11. With regard to whether there are economic circumstances that would present as a significant incentive for the applicant not to return to their home country. The applicant gave evidence that as she was on a Subclass 485 visa when she applied for the Subclass 500 Student visa, the Bridging visa she was granted did not impose conditions restricting her hours of paid employment.  I accept this claim.  The applicant said she nonetheless prioritises her studies.  She said she does some part time work in a Café, where she has worked for around three or four years.  She said she also has some part time work in a childcare centre, which she gained following an internship there associated with her early childhood education and care courses. 

12. A review of the financial records the applicant provided following the hearing shows wages being deposited from the two sources identified by the applicant in her oral evidence and in the written statement she provided following the hearing.  The amounts deposited into her bank accounts are consistent with her oral evidence and on the basis of this and the other evidence she has provided I find there is no indication the applicant has an economic incentive for maintaining her residency in Australia.

13. With regard to military service commitments that would present as a significant incentive for the applicant not to return to her home country.  I am satisfied that the applicant has no such commitments, or concerns about the civil or political situation in China, which may provide her with a disincentive from returning there.

14. On the basis of the available evidence, including the applicant’s progress in her current studies, the relevance of these courses  to her stated employment and business goals in her home country and her stated intention to return there after completing the Diploma of Early Childhood Education and Care in June 2019, I am satisfied that there is no clear indication that the Student visa program is being used to circumvent the intentions of the migration program, or that it is being used by the applicant to maintain ongoing residence.

15. Having considered the applicant’s evidence during the hearing and the applicant’s circumstances overall, I am satisfied that her explanation for both her study and future employment and business goals are plausible.  I accept that the applicant does not have relatives in Australia and that she has significant family ties to her home country.  I note the applicant is working in Australia but I am satisfied there is insufficient evidence of her having an incentive to seek to maintain her residency Australia for economic reasons.

16. 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?

17. 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.

18. 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).

19. The Tribunal does not have any evidence to indicate the applicant has not complied with visa conditions in Australia. On the basis of this, 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?

20. 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)).

21. The Tribunal has considered the applicant’s circumstances as a whole and has given weight to the applicant’s claims of wanting to improve her employment and business prospects in China and that she is studying in a field relevant to her stated business goals. The Tribunal has also placed weight on the fact the applicant has displayed consistency in her endeavours to complete her current study pathway.   

22. 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.

23. 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.

24. 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.

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.

    The second named visa applicant

26. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

27. I have noted that the applicant advised the Tribunal on 14 November 2018 that the second named visa applicant had withdrawn their request for a review of the Department’s decision to refuse their visa application. I accept the applicant’s oral evidence that her relationship the second named visa applicant broke down after five years and that he has now returned to China. Accordingly, as he is no longer in a relationship with the applicant, the second named visa applicant is not a member of her family unit and therefore does not satisfy cl.500.311.

    DECISION

28. 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:

    ·cl.500.212 of Schedule 2 to the Regulations.

    David Barker
    Member

    
    

    David Barker
    Member