1414830 (Migration)

[2015] AATA 3113

1414830 (Migration) [2015] AATA 3113 (13 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ga Yue Yip

CASE NUMBER:  1414830

DIBP REFERENCE(S):  BCC2014/1439905

MEMBER:Sean Baker

DATE:13 July 2015

PLACE OF DECISION:  Melbourne

DECISION: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 572 Vocational Education and Training Sector visa:

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 13 July 2015 at 1:17pm

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 11 June 2014. The delegate decided to refuse to grant the visa on 15 August 2014. 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 the delegate considered that the applicant’s current intention to study at the vocational level was not a progression in studies for a student whose primary purpose for being in Australia is to study and progress academically, the applicant had not completed any courses above the advanced diploma level and had maintained enrolment in short inexpensive courses, indicating she had used the student visa program to maintain residency in Australia rather than due to a genuine interest in study and academic progress, the applicant had changed course several times to unrelated courses, and her overall study history and length of time spent in Australia indicated the applicant is not a genuine student, rather, a person using the student visa program as a means of maintaining ongoing residence in Australia and did not genuinely intend to stay in Australia temporarily. The delegate therefore found on balance that the applicant was not a genuine applicant for entry and stay as a student as the delegate did not believe the applicant genuinely intended to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 18 March 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572. 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)         …

7. 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:

   ·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.

8. 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.

9. I raised with the applicant the concerns raised by the delegate. She explained her history, and in particular that her marriage and subsequent separation and divorce had led to difficulties in studying. She explained that she understood the concerns of the delegate that she had taken many different kinds of courses which were not in the same pathway. She said that she had come to Australia in 2007, where on poor advice she had enrolled in a business course. she said that in Hong Kong she had studied cosmetics and had wanted to study hairdressing here, but that the school had not been organised. She had then worked as a Cantonese – English translator but there had not been a lot of demand for that. She had then met her ex-husband who was a mechanic so she took courses in mechanics so she could help him to develop the business. Unfortunately her relationship with him was not good and they separated and divorced after that. The applicant explained the context in which she had applied for temporary residency – this had been when she was in a relationship with her ex-husband and she had had different priorities then. Now she did not wish to remain in Australia but to return to Hong Kong. She said after the divorce she did not have that intention anymore.

10. Whilst I accept that the applicant may have genuinely changed her priorities in relation to applying for temporary residence since her divorce, her study history is a considerable concern. She has been enrolled in a series of unrelated courses and has spent a considerable period onshore.

11. However, in my assessment, she has now found the correct study pathway; aged care and nursing, which she wishes to pursue. She has completed her Certificate III and is undertaking her certificate IV. She has completed a placement and all indications are that she is doing well in this field. The applicant said that she wished to pursue a Bachelor of nursing at RMIT after finishing her aged care qualifications. She appeared to have some knowledge of the course structure and the educational institute she was interested in. She stated that her future plan is to study nursing and then return to Hong Kong to find a job as a nurse. She explained that this is a high demand job in Hong Kong with an ageing population. She explained that because of her research that this profession was in high demand she had not contacted prospective employers yet. She explained that her parents are elderly and expect her, as their daughter, to return and look after them. She said that nursing qualifications from Australia were highly regarded in Hong Kong although she may still need to do a small exam to qualify there. She explained that it was recognised that a western education in fields such as nursing was preferred in Hong Kong.

12. The applicant has returned to Hong Kong relatively recently. Whilst her brother is also here studying, her parents and extended family are in Hong Kong, and expect the applicant to care for them as they are becoming elderly. The applicant has stated, and I accept, that there is no evidence she has not complied with conditions on her last held visa.

13. Having weighted the above and having regard to the guidelines, I consider that the correct and preferable decision is to allow the applicant to continue her studies and demonstrate that she has found the appropriate study pathway.

14. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.572.223(1)(a).

15. As the Tribunal has found the applicant meets the requirement of cl.572.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

16. 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 572 Vocational Education and Training Sector visa:

    ·cl.572.223(1)(a) of Schedule 2 to the Regulations.

    Sean Baker
    Member