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1318328 [2014] MRTA  2202  (22 September 2014)

Last Updated: 8 October 2014

1318328  [2014] MRTA 2202  (22 September 2014)


DECISION RECORD

APPLICANT: Mr Yong Chen

MRT CASE NUMBER: 1318328

DIBP REFERENCE(S): CLF2013/59363

TRIBUNAL MEMBER: Adam Moore

DATE: 22 September 2014

PLACE OF DECISION: Melbourne

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


Statement made on 22 September 2014 at 12:15pm


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 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 to the Department of Immigration for the visa on 14 March 2013. The delegate decided to refuse to grant the visa on 19 November 2013. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).
  3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because she was not satisfied that the applicant intends genuinely to stay in Australia temporarily.
  4. The applicant appeared before the Tribunal on 19 September 2014 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
  5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

  1. The applicant has not provided evidence of enrolment. The applicant said that he wishes to undertake a Diploma of Project Management. Having regard to the applicant’s proposed course of study, the relevant subclass in this case is Subclass 572.
  2. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

(a) the Minister is satisfied that 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) ...

  1. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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:
  2. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
  3. The applicant submitted the following documents to the Tribunal:
    1. a personal statement;
    2. an academic transcript for an Advanced Diploma of Hospitality Management issued 7 May 2009;
    1. a statement of results for a Certificate III in Engineering-Mechanical Trade issued 27 January 2010;
    1. a letter from Chisholm Institute stating that the applicant was enrolled in a Diploma of Engineering Technology and Certificate III in Engineering (Refrigeration and Air Conditioning) from 6 July 2009 to 30 June 2011;
    2. various certificates of enrolment for courses in the past;
    3. evidence that the applicant has completed a diploma of business in the period 15 July 2012 to 14 December 2012;
    4. a copy of the primary Decision Record.
  4. The applicant’s statement reads as follows:
Dear Case Officer,
This is CHEN Yong writing to you in regards to my MRT application and explain the whole study history and purpose of my further study.
(First of all, I apologize for bringing trouble to you. I am deeply aware that the stupid mistakes I made has affected my career, and I have been in the midst of deep introspection. I have already been in Australia for 6 years, and I feel very unsatisfied with my own attitude towards studying and my academic achievements , I feel that peviously, I am so young and so naïve that I made too many stupid mistakes)
Once I was a child who was only interested in games, and I merely would like to devote into the things I like. But since high school, I felt increasingly bored of studying, and my parents were worried about me and tried to persuade me but failed. In fact, my parents had their own business related to physical therapy. But at first, they were reluctant to let me learn about financial matters, on the other hand, they had the desire to let me gain advanced experience in the society independently, and after this, they will consider whether I should take over their business or not. My parents travel a lot for business, therefore I am always alone at home, which gradually developed my self-care abilities, and I can even make some delicious dishes. As a result, I decided to go to Australia to choose the chef course. So I applied for Certificate Ill of Commercial Cookery in Carrick. Meanwhile, my parents were so worried about my ability to learn and they were afraid that I could not keep pace with the University, so I chose the diploma studies.
At the beginning, I was excited about studying but when I arrived in Melbourne, only to find that there were many completely different things and all of a sudden I feel unadapted to all the unfamiliar surroundings. So after 1 year's study in Carrick, I lost my interest in cooking and did not want to be a chef any more, as a consequence, I considered to change for another major.
I decided to transfer to Chisholm to start my Certificate III of Mechanic trade of airconditioning without discussing with my parents. Because a friend of mine has an air conditioning company, and it seems that this major has a promising prospect. What attracted me most is that I feel that I have a strong practical ability which enables me to better study about this field. This is the main reason for me to change my major again into project management. My score was good at first, but after learning more and more, I find it increasingly difficult, after failing the exam several times, I felt I left behind and there was gradually a widening gap between my classmates and me. With conflicting emotions, I chose to escape, for example, sometimes I would neither like to get up in the morning nor go to the class, and sometimes I went to my friend's company as an apprentice. And this is why I did not complete the courses, but time passed so quickly, when other students were going to graduate, I could not get a diploma.
During the year 2011 , I enrolled in certificate IV in ESL with a strong desire to improve my English language skills, and I believe this program is capable of offering me a great opportunity to practice my English skills.
Now when I think about myself during that time, I know that I had made a bigger mistake which is overlooking the visa request. I talked to my parents about this situation expressing my thought to go back to China. My parents were anxious but disagreed my return to China without learning anything. And they had a substantive requirement to me, which was that they asked me to study business and management and never allowed me to repeat my previous mistakes.
With the help of the education agent, I chose to study and completed Certificate IV of Business Management and Diploma of Business Management in TK Melboume from March 2012 to December 2012. In terms of the study in project managemet, I believe it will largely benefit me in my future career. Throughout these years of study, I have always been trying to figure out the true interest of mine and trying to find an area in which I would like to develop my future career. Not long ago, one of my best friends recommended me the Project Management program taught by Australian National Institute of Business & Technology, as he has finished a similar program in the education provider and has successful in finding a fine-job,1 have-inquired the education provider about some details of the program and the potential career opportunities after finishing the course. It turned out that this program very much fits my expectations and is very likely to lead me to an Ideal career path thus benefit me in the long-term.
My parents and I have reached an agreement on the choosing of the courses and the education provider, considering the quality and the affordability of the courses. Also, we all believe that Australia is an ideal place for me to undertake the courses. First of all, my parents and I believe that one of the biggest advantages for me to live and study in Australia is that I will be allowed to practice my English very often. As stated above, I consider English as a very important communication tool in the international job market and I am keen to improve my English as much as possible. In addition, my parents and I are convinced that Australia's educational system is one of the best in the world, and a degree granted from an Australian educational provider could enhance my possibility in finding a good job or taking my home business when I go back to China. Lastly, I have been living in Australia for quite a long time and I know things here in Australia very well, in this regard, compared to undertake the courses in other countries, Australia is more likely to enable me to focus myself on study from various distractions, such as housing and transporting problems.
My parents have been working in management positions in China for many years, and I have been dreaming of having a similar job since I was very little. Based on that dream, I enrolled in the programs of my previous studies. However, during my previous studies, I did not find some of the programs very helpful in terms of leading to my dream job. Nevertheless, I do believe that the knowledge and skills from my previous studies would largely help me in my future study and work. Apart from that, the Certificate IV and Diploma of Business Management I completed in TK Melbourne did give me some insights in business and I found myself very much interested in some particular business-related subjects, among which project management is one, and that is the main reason for me to decide to undertake a further program in project management.
After I complete my course, I will come back to my own country China, and I will start my career in my parents' company and try to apply all the theories I have learned to the work. And I have a strong belief that all the knowledge and skills I obtained in Australia will enable me to better deal with the issues in my work. I have a strong desire to go back to China because all my family members are in China, and my parents really sacrifice so much for me and I have the duty to take care of them. So I would like to use all my knowledge and skills to contribute to the people and society I love in my-own country
Sincerely hope that you will give me the second chance, and I am deeply aware of my mistakes, and I promise that I will not make such mistakes again, and will not make jokes about my future. I really do not want to live with regrets completing my university career, so please consider my circumstance and please approve my visa application. Please do not hesitate to contact me should you require any further information from me. I look forward to your reply. Thank you very much.

  1. At the hearing I discussed with the applicant the Direction No. 53 factors.

The applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

  1. The applicant comes from Tianjin in northern China. He has his parents and grandmother. He is an only child. His parents run a beauty therapy business. They have 2 shops. The applicant describes his family as relatively well-off compared to others in his country. Each shop employs 10 staff. The applicant said that he thinks a qualification in project management will assist him to help his parents with the business.
  2. The applicant said that there are no military service commitments or political civil unrest factors that would serve as incentives for him not to return to China.
  3. The applicant said he has no ties to Australia. He said he has no family and he is single. He says he rents a house where he lives by himself. When I asked him how he supported himself financially in Australia, he said he lives off a credit card which his parents pay off for him.
  4. The applicant said if he was able to enrol he would finish his project management qualification and then he wants to enrol in university in the same field. He said he has a Diploma in Business and hopefully he will finish the Diploma of Project Management then he said he will talk to his parents to ask their opinion about which discipline he should pursue at university.
  5. When I asked the applicant if he had current enrolments he initially said yes, referring to the certificates of enrolment for a Certificate IV and a Diploma of Project Management. I said to the applicant that I did not think these could be current as the course end dates had passed. I said to the applicant that it seemed that he was not enrolled in the course of study. The applicant conceded this and said that he hasn’t because he has not had a decision on his visa and no school would accept his application for enrolment. I said to the applicant that I may not accept this because I was aware that students could obtain enrolments even while waiting for a review. The applicant replied it was only in November 2013 when he was asked to provide study records did he realise that he should have continue to study while waiting for the review. I said to the applicant then that he realised in November 2013 he should study but he has not done any study up until the day of the hearing. I told the applicant the fact that he is not studied when he told me that he knew that he could have is a factor that weighs against him. The applicant said that he understood but he did not know what to do while he was waiting for the decision and no school would accept his application. I asked him how many schools he had spoken to. The applicant replied that his agent has talked to 3 schools for him. The applicant said he also tried to speak to choose to finish his course but they were not satisfied with his visa status and they asked him to obtain a visa first.
  6. I asked the applicant how qualification in business or project management would assist him with his future in China. He said his parents are preparing to further expand their business and they will open up more shops. He said they do not wanting to work in the shops, rather they wanting to learn so he can help them manage the shops in the future. I asked the applicant what he had said his parents about being in Australia for so long and only obtaining 2 qualifications in business. The applicant said both of his parents understand it is not very good studying and he knows it is made a lot of mistakes and even though they are not happy with his performance they are still very supportive. He said after he finished the diploma of business they could see the evidence that he has changed so they would like to give him another chance to do more study. The applicant said does not want to go back without learning anything.

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;

  1. The applicant came to Australia in May 2008. There is no evidence before me of any previous adverse interactions with the Department.
  2. His poor study history, however, is a factor which weighs against him.

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.

  1. At the end of the hearing, the applicant said it is very hard thing to provide any further documents and evidence and he knows that he has made a lot of stupid mistakes in the past. He said he was young and naive but now it he is an adult so he hopes that the mistakes is made in the past will not affect his future. He said he is asking for another chance.

Assessment

  1. The applicant’s study history is very poor. In the 6 years he has been here, he has only completed an 8 week English language course and a Certificate IV and Diploma of business. I note from his own evidence that he submitted that these courses latter were only of 6 months duration. I note that the applicant did pass some units of an Advanced Diploma Of Hospitality Management in 2008 and some units of a Certificate III In Engineering-Mechanical Trade in 2009. In my assessment the applicant’s study history is a factor which weighs heavily against him. I do not accept the applicant’s assurances that he genuinely wishes to engage in study and return to China. My main reason for coming to this conclusion is not only his past history, but also that the applicant on his own admission knew from November 2013 that he should be engaging in study but has not. I do not accept that he has been unable to do so because of his visa status. I doubt his evidence that he has made attempts to contact education providers either in person or through his agent.
  2. The applicant states that his family operates a small business, being two beauty therapy salons. He has, however, not provided any evidence of this. I am not, therefore, persuaded that course or courses the applicant says he wishes to undertake would be of benefit to his future.
  3. I am also concerned that the applicant stated during the hearing that he wishes to go on to undertake a degree. Given his poor study history, I find this claim dubious and it tends to indicate to me that the applicant wishes to continue to use the student visa program as a means of maintaining indefinite residence in Australia.
  4. On the evidence before me, I can detect no significant other factors that would serve as incentives for the applicant to either return to China or remain in Australia.
  5. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).
  6. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

DECISION

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

Adam Moore
Member

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