Zhu (Migration)

[2021] AATA 5428

Zhu (Migration) [2021] AATA 5428 (13 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mengmeng Zhu

CASE NUMBER:  2102484

DIBP REFERENCE(S):  BCC2018/3299491

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         13 September 2021 at 11:49 am (VIC time)

DATE OF WRITTEN RECORD:                23 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 23 September 2021 at 9:00am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – enrolment status – genuine temporary entrant – returned to China – course to be completed online – no intention of entering Australia to study – excellent academic record – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 December 2018 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 13 September 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The time now is 11.43 am on 13 September 2021.  This is an application for review brought by Ms Mengmeng Zhu, who is a citizen of China and she seeks a review of a decision made by a delegate of the Minister, refusing to grant her a student visa.

4. In terms of the history of this matter, I note that the applicant originally applied for the student visa on 31 August 2018 and it was refused on 20 December 2018 by a delegate, because the delegate was not satisfied the applicant met the criteria under clause 500.212.  She then applied for review of that to the tribunal and the tribunal on that occasion, constituted by a different member, on 8 January 2019, was not satisfied that the applicant was enrolled.

5. The applicant then appealed to the Federal Circuit Court of Australia and on 8 February 2021, the court validated the tribunal's decision on the basis that the applicant had in fact been enrolled, and so the court remitted the matter back to the tribunal for reconsideration, and that occurred today. The tribunal convened a hearing on 13 September 2021.  The applicant participated by phone as did an interpreter who assisted in the interpretation of Mandarin into English.

6. The issues in this case are whether the applicant intends to remain or enter and remain in Australia temporarily as a student, in accordance with clause 500.212, but first of all whether she is enrolled as well.  I do find that she is enrolled in accordance with clause 500.211. She is currently enrolled in a course being an Advanced Diploma of Leadership and Management.  She started that course in August last year and it is due to finish in about a month from now, being 9 October 2021.  I find that she meets that criteria.

7. The issue in this case though concerns whether she intends to enter and remain in Australia temporarily as a student, and that she has a genuine intention to remain here temporarily.  This is an unusual case because shortly before this hearing convened, the applicant returned to China and in the hearing convened today one of the first questions that the tribunal asked the applicant was whether or not she intended to return, given that she has almost completed this course, and she confirmed that she did not intend to return because she already has a job offer in China and she provided evidence of that.  She was very clear in her evidence that she does not have any intention to return in the near future because she had virtually finished her course.  It is being completed online within the next month and so there is no immediate need for a student visa.

8. On that basis, the application for review must be refused because the applicant does not have any intention to enter and remain in Australia right now temporarily as a student.  However, she presses with her application on the basis that she does not want a bad record showing that her visa application was refused.  The law, however, is very clear.  I cannot grant her a visa if she has no intention of entering Australia now to study.  She did say, however, that she may at some point in the future wish to return to Australia to study her Masters.

9. On that basis, I will make the following findings for the purposes of the public record.  But for the fact that she had left Australia to return to China, I would have found that she is a genuine temporary entrant for the purposes of clause 500.212, and that is because I have looked at her student history in Australia.  She originally came here in 2017 and has studied ever since.  She has a study record commencing in March 2017, where she successfully completed a General English course, she moved on to a Diploma of Leadership and Management, which she did not complete but then swiftly moved on to complete a Diploma of Business Administration, Advanced Diploma of Business, Diploma of Leadership and Management and now she has virtually completed, with one month to go, an Advanced Diploma of Leadership and Management.

10. It is an excellent academic record for an international student who is still relevantly young, and I understand why she would not want any blemish on her immigration history record with Australia, because of the unfortunate appeal process that she has gone through.  As a result of errors, through no fault of her own, she has ended up back here.  Because of the delay, a lot of time has elapsed, and she has virtually completed that which she set out to do and because of circumstances that arose back in her home country, she has returned to China.

11. I agree that there should not be any doubt left on her immigration history.  There was no immigration history at all of concern to me and the only reason that I am affirming the original decision is because she does not have any now, immediate, intention to return to Australia. That is because she has virtually completed her studies. 

12. As I said, but for that fact, I would have found that she met the criteria contained in clause 500.212.  However, she does not have an intention to return to Australia to study and therefore I cannot be satisfied that she meets that particular criterion. 

13. I am not satisfied that she meets clause 500.212.  The time now is 11.49 am on 13 September 2021.  The tribunal affirms the decision under review.

    DECISION

14. The Tribunal affirms the decision under review.

    Dr Jason Harkess
    Member