1420691 (Migration)

[2015] AATA 3723

1420691 (Migration) [2015] AATA 3723 (27 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms He Wang

CASE NUMBER:  1420691

DIBP REFERENCE(S):  BCC2014/2835654

MEMBER:Don Lucas

DATE:27 November 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 27 November 2015 at 5:29pm

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. Where used in this decision:

   a.COE refers to Certificate of Enrolment in a course of study;

   b.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   c.VET refers to Vocational Education and Training;

   d.A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   g.IELTS refers to the International English Language Testing System;

   h.ELICOS stands for English Language Intensive Courses for Overseas Students.

3. The applicant applied to the Department of Immigration for the visa on 27 October 2014. The delegate decided to refuse to grant the visa on 1 December 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).

4. 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 was not satisfied the applicant intended genuinely to stay in Australia temporarily.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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)    …

10. 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.

11. 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.

    Background

12. The applicant initially arrived in Australia on 4 June 2011 as the holder of a subclass 572 visa. The applicant completed a Certificate IV in Disability in June 2012 and then completed a Diploma of Interactive Digital Media in April 2014. The applicant then went on to complete a Certificate IV in Massage Therapy Practice in April 2015 and is presently undertaking a Diploma of Remedial Massage due for completion in May 2016.

13. The delegate noted that the applicant had provided some reasons as to why she wish to undertake new studies in the field of massage therapy and remedial massage but had not provided any supporting documentation in relation to this. The delegate was not persuaded that the applicant had provided sufficient evidence of the value of the courses that she propose to undertake in terms of her future career plans.

14. The applicant has provided the Tribunal with extensive documentation concerning her previous studies and employment experience in her home country which persuade the Tribunal that the courses the applicant has completed and is completing in Australia in the field of massage therapy are consistent with and have a value to the applicant in terms of her future career plans.

15. The applicant through her representative provided submissions and a number of supporting documents. The submissions relevantly stated:

    The applicant’s circumstances (in applicant's home country and in Australia)

    ·     In accordance with Ministerial Direction 53, it is submitted that the applicant and her husband possess their own property in China. All close family members of the applicant residing in China.

    ·     The applicant also instructs that she had completed the Diploma of Clinical Medicine (Rehabilitation.) back in China. The current Courses, Certificate IV in Massage Therapy Practice and .Diploma of Remedial Massage, the applicant has enrolled in are highly relevant to the course Ms Wang has studied in China, as per attachment item 16, 17, 18 and 19

    ·     When the applicant initially arrived in Australia, Ms Wang has studied and completed Certificate IV in Disability. When it comes to the internship in relation to the Certificate, Ms Wang found that the internship is more difficult than her imagination, although she had prepared for the upcoming difficulties. Consequently, the applicant has decided to change to business major because majority of Chinese, especially people at my hometown, believe that business is a promising major in China. It is well-known that China has experienced a considerate economic growth in recent years, and a number of overseas companies wish to do business with enterprises in China. Not surprisingly, the applicant made a decision to study business in the hope that she could find a highly rewarding job after graduating from this course, However, soon after the applicant commenced the study in Certificate IV in business, Ms Wang had experienced tremendous difficulties in study. The course mainly consists of a number of business theories and demanding a level of English capacity, which far exceeds the applicant's English ability. The applicant failed 2 courses within a matter of first semester. As consequence, the applicant became extremely concerned that she would not be able to accomplish the course. Then, the applicant decided to commence the Diploma of Interactive Digital Media after consulted with school authority, Luckily, Ms Wang felt much confident in the media study and completed the course successfully (as per attachment item 9-19).

    ·     The applicant has worked at a massage shop on part-time basis during spare times since Ms Wang has relevant knowledge in Clinical Medicine (specialising in Rehabilitation). The applicant instructs that she has a sense of achievement after customers express their appreciation to her because her massage services relive their physical pain and stress to a large extent. The applicant also submits that she has, therefore, considered starting a career as a Professional Remedial Massage Therapist in the future. It the meantime, the applicant has conducted a market research about remedial massage therapy in China and learnt that high quality massage service has  become more and more popular due to the increasing pressure caused by the fast-paced modern lifestyle. After careful consideration, the applicant has applied for the Certificate IV in Massage Therapy Practice and Diploma of Remedial Massage at Southern Cross Education Institute. Please refer to the attached Confirmation of enrolments and enrolment status letter relating to the course, Certificate IV in in Massage Therapy Practice issued by the South Cross Education Institute (as pc.at attachment item 6, 7, 8, 18 and 19).

    ·     The applicant instructs that she has sufficient fund to cover her study and living expenses in Australia (as per attachment item 3 and 4)…

    Value the course to the applicant's future

    ·     Ms Wang instructs that she has proposed to set up a Remedial Massage business in China in the future. As outlined above, the applicant has accomplished a Diploma of Clinical Medicine (Rehabilitation) in Shandong Medical College in China. In this regard, Certificate IV in Massage Therapy Practice the applicant is currently studying and diploma of Remedial Massage the applicant proposes to study are closely related to her previous study and qualification. However, there are not many qualified massage courses available in China nowadays with regards to studying theory of remedial massage systematically. The applicant has talked to her family about her current study and an future career plans and applicant's families shown their full support for Ms Wang's decision to obtain Australian qualification of Remedial Massage. They believe that the massage courses will benefit her largely and lay a solid theoretical foundation to the business she plans to build up. Consequently, Ms Wang has applied for and enrolled in the Cert IV in massage Practice end Diploma of Remedial Massage at Southern Cross education Institute.

    ·     Meanwhile, the applicant is fully aware that she does not have any experience in terms of business operation. Hence, the applicant plans to seek an employment as a professional Massage therapist before starting her own massage business. On one hand, the applicant is able to gain more practice experience from work; on the other hand, the applicant could have opportunities to learning management experience from real-life scenario. Although the applicant does not have any business related qualifications, Ms Wang believes that experience is the best teacher.

    ·     In line with the applicant’s plan,, Ms Wang has been seeking future employment by contacting a number of mass a disservice relevant providers in China since she commenced the certificate IV in Massage Therapy Practice. Fortunately, the applicant has been offered a position as senior massage therapist by Beijing [company details]. At the interview, the general manager has been quite happy with Ms Wang and promised that he would promote Ms Wang to management level in order for her to bring in advanced knowledge about. massage therapy from overseas (as per attachment item 20).

    The applicant's immigration history

    ·     Although it is conceded that the applicant only spent total time of 82 days within more than 3 years study in Australia it is noticeable that the institute breaks during, each courses Ms Wang studied are very short: (only 1- 2 weeks) which is different from that of University. Obviously, it is not worth spending a fortune on the air tickets. The applicant instructs that she has travelled back to China as long at the holiday is over a month.

    Additional considerations for genuine temporary entrant criterion

    ·     the applicant instructs that the unfavourable decision is largely caused by her previous migration agent who did not inform her to provide the required documents to the Department. When the applicant was required to provide further documents, the migration agent did not ask her to provide the evidence of qualification obtained in China, nor the employment letter from the Beijing.. Fitness service Co,

16. Having particular regard to the evidence now provided concerning the applicant’s previous studies and employment experience in a field related to massage therapy, the Tribunal has no remaining doubt in relation to the value of the applicant’s study in relation to her future plans. The Tribunal further gives weight to the applicant’s completion of the Certificate IV in Massage Therapy and the prosptive completion date of the applicant’s Diploma of Remedial Massage within the following six months and considers that it would be reasonable to allow the applicant to complete a course which the Tribunal considers the applicant has demonstrated to be relevant to her background and her future prospects.

17. The Tribunal is further persuaded in relation to the applicant’s explanation in relation to her changes in course direction.

18. Having had regard to all factors set out in the Ministerial Direction 53 that appear to be relevant to the applicant’s circumstances, the Tribunal is left in no doubt that the applicant is a genuine temporary entrant to stay in Australia as a student.

    CONCLUSIONS

19. 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 meets cl.572.223(1)(a).

20. 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

21. 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.

    Don Lucas
    Member