Zhu (Migration)

[2020] AATA 6030

Zhu (Migration) [2020] AATA 6030 (15 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Xiuzi Zhu

CASE NUMBER:  1915203

HOME AFFAIRS REFERENCE(S):          BCC2019/1582548

MEMBER:Elizabeth Tueno

DATE:15 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 15 September 2020 at 12:25pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – lengthy stay in Australia – five previous Visitor visas – maintaining ongoing residence in Australia – application for permanent residence – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212

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 Home Affairs on 6 June 2019 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 29 March 2019. 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). The delegate was not satisfied that the information provided by the applicant demonstrated that the met the temporary entrant requirements for the grant of a student visa.

4. On 7 May 2020, the Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information, including in relation to their enrolment, to the Tribunal.  On 19 May 2020, the applicant responded by providing a completed section 359(2) questionnaire.  The applicant stated in the questionnaire that he consented to the Tribunal deciding the review without conducting a hearing. 

5. The Tribunal is satisfied that the review applicant were properly sent an invitation to provide further information under section 359(2) of the Act.  The invitation was sent to the review applicant by email, being the address provided by the review applicant in connection with this application for review.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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?

10. 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.

11. 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.

12. The Tribunal has had regard to the documents provided to it by the applicant including the completed s.359(2) questionnaire, a copy of his confirmation of enrolment and certificates of completion of courses he previous undertook.  It has also had regard to the documents contained in the Department’s file. 

13. The applicant is a 23 year old woman from China, who first entered Australia on 14 July 2004 on a tourist visa, which was valid or one year.  Since then, she has held a further four tourist visas, all valid for one year.  She then applied for a student visa in May 2012, which was granted and remained valid until March 2016.  She applied for a second student visa in February 2016, which was granted and remained valid until March 2019.  The applicant has been enrolled in a number of courses since arriving in Australia:

    ·     An English course – completed in January 2013;

    ·     High School – completed in December 2015;

    ·     Bachelor of Tourism Management – commenced in March 2016 but did not complete and ceased in November 2017;

    ·     Certificate IV in Business – commenced in July 2018 and completed in June 2019; and

    ·     Diploma of Leadership and Management – commenced in June 2019 and completed in December 2019.

14. She is currently enrolled and studying a Bachelor of Business, which commenced on 2 March 2020 and will end on 11 November 2022 (“the proposed course”).

15. The applicant said in her questionnaire response that she is studying the proposed course in Australia because it is an English speaking country here with a good reputation for providing quality tertiary courses to international students.  She said the qualification, the life experience and his English language skills all gained from studying in Australia will assist her in her career in a competitive market in China.  It is noted that her career goal is to work as an “office all-rounder” according to her visa application form.  In her questionnaire, she stated her goal was to become a business development manager for a multinational company in her hometown. 

16. The applicant provided no evidence about the availability of similar courses to the proposed course in her home country of China and why she was not studying there.  Rather, she gave evidence as to why she wants to study in Australia.  Considering that Australia has essentially been her home base since 2004 until the present, during which she has returned to China on a number of occasions, the Tribunal considers that the applicant should have sufficient life experience and English skills after living in Australia for the last 16 years.  As to qualification she can gain from her time in Australia, there is no evidence as to why the applicant would be unable to study the proposed course of similar course in her home country.  Accordingly, the Tribunal is not satisfied that the applicant has sound reasons for not studying the proposed course (or similar course) in her home country of China.

17. As to her personal ties to China, the Tribunal notes that her parents and grandmother continue to reside there and that she has returned once a year since 2013 (after commencing her first student visa) to visit family.  She has also been staying in contact with them using WeChat on a daily basis.  The Tribunal accepts that having parents living in China does represent some ties to her home country, particularly given the number of visits she has made to them over the last seven years. However, in light of the length of time the applicant has been living in Australia, the Tribunal considers that the applicant has been able to maintain her connection with her family whilst remaining in Australia and that accordingly, the Tribunal does not consider that having family in China is a significant incentive for her to return there after completing the further studies she is currently undertaking in Australia. 

18. The Tribunal has considered her economic circumstances as well.  Given her relatively young age, it is understandable that the applicant does not have any assets in her own name.  She has instead provided evidence of her family’s assets, by way of a bank statement showing money held in a Chinese bank account.  She also said that she is being financially supported by her parents who pay for her tuition fees and living expenses.  There is insufficient evidence before the Tribunal about the applicant’s and her parents’ economic circumstances to find that these circumstances would be a significant incentive to return to China upon the completion of the proposed course.

19. The applicant stated in her questionnaire that she has no concerns about military service commitments in China.  She also said that she has no concerns about any political or civil unrest in China.  There is no evidence to suggest otherwise and accordingly the Tribunal does not consider these matters would have induced the applicant to come to Australia and to use the student visa in order to remain here indefinitely.

20. The Tribunal has had regard to the applicant’s potential circumstances in Australia.  She has provided little information about her circumstances here.  It is not known what she does when she is not studying, who she lives with, whether she has friends and associates here or whether she is in a relationship here, for example.  In response to the question in the questionnaire about employment in Australia, she has left this blank.  She listed her employment status in her visa application form as ‘student’. 

21. The applicant is currently 23 years old.  She was 14 years old when she was first granted a student visa to study in Australia.  Prior to this, she appears to have spent a significant period of time in Australia on tourist visas:

    ·1^st tourist visa – April 2004 to April 2005;

    ·2^nd tourist visa – June 2005 to December 2005;

    ·3^rd tourist visa – June 2006 to September 2006;

    ·4^th tourist visa – July 2008 to July 2009;

    ·5^th tourist visa – May 2010 to May 2011.

22. The reason for the applicant to have spent so much time in Australia on tourist visas is not known.  She has provided no evidence about this and there is no information in the Department’s file that assists.  It is not known whether the applicant spent the duration of each tourist visa in Australia or just part of the time allowed.  If the applicant did spend the duration of each tourist visa in Australia, this means she would have spent a further 47 months here, or 3 years and nine months.  This means that the applicant has potentially spent nearly 14 years in Australia.

23. While the Tribunal takes into account that the applicant has been enrolled in a registered course for most of the time she has spent on a student visa here, it also takes into account that the applicant has potentially spent more than half of her life living in Australia.  She has spent most of her formative years as an adolescent and now her early adulthood in Australia.  She attended high school here.  She is now studying at a tertiary level.  Having spent so much of her life in Australia, the Tribunal considers it extremely unlikely that she would not have developed significant and strong ties to Australia.  The Tribunal finds that in these circumstances, it is a strong possibility that the applicant is using the student visa to maintain ongoing residence in Australia and that in doing so, she is attempting to circumvent the intentions of the migration program. 

24. The Tribunal has also considered the value of the proposed course to the applicant’s future.  She completed primary and middle school in China before completing high school in Australia.  She has gone onto complete a Certificate IV in Business and a Diploma of Leadership and Management.  She is now studying at the higher education level for a Bachelor degree in Business.  She was previously enrolled in a Bachelor degree in Tourism Management in 2016 but did not complete this course for reasons unknown.  Taking these matters into consideration, the Tribunal finds that the propose course is consistent with her current level of education.

25. The course is not relevant to her past employment, as she does not appear to have undertaking any employment to date.  However, the proposed would seem to be relevant to her goal of working in China as a business development manager for a multinational company.  Holding a business degree would be of assistance to the applicant,  or least increase her employment prospects, in finding employment in a business role in China.  It follows that the holding a qualification from the proposed course would also assist her in relation to the remuneration she can expect to receive in her home country.

26. Lastly, the Tribunal turns to consider the applicant’s immigration history.  In her questionnaire, she states that she has never had a visa refused or cancelled by another country.  She has returned to her home country frequently.  However, she has also travelled to other countries for holidays, which suggests that Australia has become her ‘home base’, rather than China.

27. She also stated that she has an Australian visa application pending a decision.  She said this visa application as for a remaining relative subclass 115 visa, which was lodged on 27 February 2012.  Unfortunately, she did not provide any other information about this visa such as why she lodged this visa application and why it is still pending a decision when it was lodged over eight years ago.  There is no information in the Department’s file about this other visa application.  A subclass 115 remaining relative visa would allow the person granted such a visa to remain in Australia permanently.  It is for people who have lost all of their family members and need to join their remaining relative in Australia.  It must be applied for offshore.  According to the information provided by the applicant, she appears to have been offshore at the time the subclass 115 visa application was made.  However, she said that her mother, father and grandmother all live in China.  She provided no information about having relatives in Australia.  If the applicant did indeed lodge an application for a subclass 115 visa, whether or not she met the requirements for such a visa, then this would suggest an intention to remain in Australia permanently. 

28. On the basis of the above, despite finding that the proposed course has value to the applicant’s future, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and therefore the applicant does not meet cl.500.212(a). This is due to her immigration history, potential circumstances in Australia, the lack of sound reasons for not studying in China and the lack of significant incentive to return to China.

29. 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.

30. 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

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

    Elizabeth Tueno
    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.