Zhu (Migration)

[2018] AATA 3940

Zhu (Migration) [2018] AATA 3940 (11 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hao Zhu

CASE NUMBER:  1713651

HOME AFFAIRS REFERENCE(S):           BCC2017/1014402

MEMBER:Stephen Witts

DATE:11 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 11 September 2018 at 12:23pm

CATCHWORDS
MIGRATION – Student (Temporary)(Class TU) – Subclass 500 (Student) – genuine student criteria – unsatisfactory course progress – non-commencement of studies – use of the student visa program to extend residency in Australia

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 16 June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. On 7 August 2018 the applicant was invited by the Tribunal to provide advice regarding the applicant’s proposed course of study and his entry and stay in Australia as a student. The Tribunal provided a request for Student Visa Information questionnaire and requested that the applicant complete this questionnaire and return it to the Tribunal. The written information requested in the attached questionnaire was required to be received by the Tribunal by 21 August 2018. This information was not provided to the Tribunal. The applicant was informed by the Tribunal that if it did not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. The applicant was informed that he would also lose any entitlement he might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

5. On that basis the Tribunal proceeded to making a decision based on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 genuinely intends to stay in Australia temporarily.

   Genuine applicant for entry and stay as a student (cl.500.212)

8. 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?

9. 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.

10. 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.

11. The applicant was provided a copy of Ministerial Direction 69 in the Tribunal’s letter to the applicant on 7 August 2018.

12. According to the delegate’s decision record, provided by the applicant, the applicant was granted his initial Student visa Subclass TU573 on 12 November 2013 which was a valid until 15 March 2017 to study a Diploma of Commerce and a Bachelor of Commerce degree. The applicant arrived in Australia from China on 11 February 2014.

13. According to the delegate’s decision record the applicant commenced his diploma course and subsequently the confirmation of enrolment for the Diploma and Bachelor of Commerce courses were cancelled due to unsatisfactory course progress and non-commencement of studies on 17 April 2015 and 20 March 2015 respectively.

14. The applicant then commenced a Bachelor of Commerce on 23 March 2015. This course was also cancelled on 5 April 2016 as the applicant ceased his study.

15. The applicant applied for a Student (Temporary) (class TU) student (subclass 500) visa on 14 February 2017. This application was rejected by the delegate on 16 June 2017.

16. According to the delegate’s decision record the applicant’s TU573 visa was subject to condition 8516 and 8202 which required the visa holder to continue to be a person who would satisfy the primary condition for the grant of the visa and to continue to stay in the intended course. According to the delegate’s decision record the applicant has not abided by these visa conditions.

17. According to the delegate’s decision record the applicant has been in Australia for more than four years and has continued to study, or be enrolled in, low level VET courses with an education provider not eligible under streamlined visa processing arrangements.

18. The applicant provided to the delegate a statement dated 14 March 2017 (delegates file folio 21-22) which stated that:

    “I completed my high school in Canada and came to Australia to study bachelor course. My parents spent a lot of effort for my education by sending me overseas. However, I didn’t appreciate the chance to study here right at the beginning when I arrived. Comparing to Canada, Australia’s education is quite different. It is more freedom here. I had problem to regulate myself to focus on university studies. I have failed quite lot units so that I have to transfer something I don’t actually good at, which is commercial cookery. At that time I had no choice because of the poor mark, so I have to transfer to another course, so I chose commercial cookery. After a few months of study, I realised that I wasn’t a cookery person. I should go back to study business and management.

    I realise how bad I did in my previous study. I also understand how hard for my parents to send me here to have the best education and I just wasted all their effort. I had a chat with my dad recently, all they hope is that I can completed degree in land some years for management skills to help them look after our family business later on. They understand and bachelor could be too hard for me at this stage, so a diploma course will be more suitable for me and my family.”

19. The Tribunal has considered the material in the delegates file, specifically the statement provided to the delegate above, and to all the material in the AAT file, specifically the delegate’s decision record and the other communications sent to the applicant; and finds that the applicant is not a genuine applicant for entry and stay as a student.

20. The applicant has not provided reasonable reasons for not undertaking his study in his home country or region as similar courses are already available there.

21. The applicant has not effectively addressed the extent of his personal ties to his home country and whether those circumstances would serve as a significant incentive for him to return to his home country.

22. The applicant has not addressed any military service commitments that will present as a significant incentive for the applicant not to return to his home country or the extent of any political and civil unrest in the applicant’s home country that would influence the applicant’s motivation for applying for a student visa.

23. The applicant has not addressed any of the economic circumstances that would present as a significant incentive for the applicant not to return to his home country. These circumstances include consideration of the applicant’s circumstances relative to the home country and to Australia.

24. The applicant has not addressed the value of his proposed enrolments to his future other than as stated above and has not demonstrated the relevance of his proposed courses to his proposed future employment either in his home country or in a third country.

25. The applicant did not address the amount of time he has spent in Australia and whether his student visa would be used primarily for maintaining ongoing residence in Australia and why the applicant has undertaken a series of short inexpensive courses.

26. The applicant has not addressed the contentions by the delegate that the applicant was in breach of his visa conditions by not abiding by his obligations to study at higher level. The Tribunal finds that the applicant was in breach of these visa conditions.

27. The Tribunal finds that the applicant is using the student visa program to circumvent the intention of the migration program and is not a genuine applicant for entry and stay as a student.

28. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

    Conclusion on cl.500.212

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.

    Stephen Witts
    Member