1506457 (Migration)

[2016] AATA 3084

1506457 (Migration) [2016] AATA 3084 (20 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Dongxi Zhou

CASE NUMBER:  1506457

DIBP REFERENCE(S):  CLF2013/212302

MEMBER:David Dobell

DATE:20 January 2016

PLACE OF DECISION:  Sydney

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.572.231 of Schedule 2 to the Regulations

Statement made on 20 January 2016 at 4:10pm

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 30 August 2013. The delegate decided to refuse to grant the visa on 18 October 2013.

3. 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).

4. 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).

5. The delegate refused to grant the visa because she had not substantially complied with condition 8516 of her previous visa and hence did not satisfy cl.573.235 in relation to her current visa application.

6. The Tribunal, differently constituted, affirmed the decision in this matter on 11 March 2014.  However, on 5 May 2015 the Federal Circuit Court of Australia quashed the decision by consent. It noted that the Tribunal had asked itself the wrong question in relation to exercising its discretion.

7. The Tribunal also notes the removal of the ‘complied substantially criterion’ for all student visas on 22 March 2014, and that this applied to all visa applications not finally determined as at 22 March 2014, as well as those made on or after that date. Hence this provision now no longer exists.

8. The applicant appeared before the Tribunal on 18 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. From the Department movement records:

    ·The applicant arrived in Australia on 21 August 2011 on a subclass 575 visa

    ·This visa ceased on 1 September 2013

    ·She has been on bridging visas since that time

    ·She departed Australia on 12 November and returned on 14 December 2012

11. PRISMS records show:

    ·English for Academic Purposes, 13 November 2011 to 11 May 2012, finished

    ·Foundation Studies Program, 25 June 2012 to 1 July 2013, cancelled, non-commenced

    ·Certificate IV in Business, 17 August 2012 to 7 February 2013, finished

    ·Certificate IV in Business,  18 March to 15 September 2013, finished

    ·Diploma of Management, 16 September 2013 to 16 March 2014, finished

    ·Diploma of Management, 10 August 2015 to 27 March 2016, studying

    ·Advanced Diploma of Management, 11 April to 27 November 2016, approved

    * The Tribunal notes that ‘finished’ does not necessarily mean the course was completed

12. The delegate noted that the applicant was enrolled in the Foundation Studies program at CQU between 25 June to 9 July 2012 [sic], her CoE being cancelled for non-commencement of studies. She went to China and once she returned she enrolled in vocational studies for the remainder of her subclass 575 visa.

13. The delegate noted that she was advised by the applicant that she did not do the course because it was too hard. She did not seek advice or counselling before discontinuing or commencing her vocational studies.

14. At the hearing in relation to the first Tribunal’s decision, the applicant said that she talked to some teachers at her university a week before she enrolled in the Foundation Studies course, and that a friend of hers had made enquiries for her at the Department before she (the applicant) went back to China. She was unable to provide any material to corroborate these claims.

15. She also said that she had enrolled in other courses during the 14 months she was not enrolled and handed up Confirmations of Enrolment in those courses. However, none of those courses were in the education sector appropriate to her subclass 575 visa (the courses were subclass 572 courses), and the applicant confirmed that she only completed one of them (the Certificate IV course).

16. That Tribunal asked whether she had any other explanation for her failure to comply with the requirement to maintain her enrolment in (subclass 575) courses during the period in question, and the applicant responded that the Foundation course was too hard and that there was no other reason.

17. At the hearing of this Tribunal, the applicant said she was currently studying a Diploma of Business. When the Tribunal said that PRISMS states she is currently studying a Diploma in Management she said this was not the case, as she had already done this course.

18. The Tribunal examined PRISMS and noted this may be correct. However, she then said that she is doing the Diploma of Management again because she did not understand it properly the first time. It was taught too fast. She is enrolled to do the Advanced Diploma next year.

19. She showed the Tribunal her Australian Ideal College enrolment card, valid to 2016.

20. The Tribunal said it did not understand how she could finish this course if she didn’t really understand it such that she had to do it again. She said she had help from teachers and classmates in getting through the course. She denied that English was a problem.

21. The Tribunal turned to her withdrawal from the Foundation Studies course. She said she did the English course and by the end she thought she would have difficulty understanding a university course. She confirmed she did not start this course.

22. As to what she did next, she said she went back to China and talked to her parents and they urged her to continue her study. She said her father was very ill around that time.

23. The Tribunal noted that this was her written submission also but that it did not make sense factually. That is because she had enrolled in a Certificate IV in Business course by August 2012 and her visit to China was not until November 2012. She had no answer to this.

24. The Tribunal asked whether she was studying after her Tribunal hearing last year in March 2014. She said ‘no’. As to why, she said she was pregnant then and had a baby in December 2014. Of course she has since gone back to her studies.

25. The father of the child was a student also. He now is sponsored to work here and supports their child financially.

26. As to why she did not go to see the Department to change her visa class, she said she didn’t know she had to do that. She did not seek any advice from the Department or migration agents.

27. The Tribunal suggested that the school would need to know that she had the right visa to study her course. She did not know about that. No one had told her.

28. The Tribunal invited the applicant to provide evidence of her child being born, and her past studies.

29. On 7 January 2016 the representative provided the following:

    ·IBN College, 31 July 2013, letter documenting her studies in the Certificate IV in Business to that date, which showed that she commenced there on 25 March 2013, that the course ends on 15 September 2013, that she had completed 6 out of the 10 units

    ·COE for Certificate IV in Business for the above dates

    ·NSW Birth Certificate, issued 3 September 2015, showing that the applicant is the mother of a child born in December 2014

30. As the applicant currently is enrolled in an Advanced Diploma of Management course as her principal course, the subclass that may be granted is subclass 572. The issue in the present case would have been whether the applicant now meets cl.572.235. However, this provision was repealed less than 2 weeks after the first Tribunal made its decision.

31. The Tribunal considered the facts of this matter as they stand.

32. It is not disputed that the applicant did not commence the Foundation Studies course, but she did finish the preliminary English course. The Tribunal accepts that she thought the Foundation course might be too hard for her.

33. At the hearing the Tribunal noted that the Certificate IV in Business she then enrolled in commenced on 17 August 2012 and was recorded as ‘finished’. However, there is another Certificate IV in Business enrolment recorded as ‘finished’, which commenced on 18 March 2013. From the education provider letter provided this is the course that she ‘finished’ on 15 September 2013. It appears she commenced her studies at one education provider (Williams Business College) and then transferred to IBN to complete this course.

34. In any event, the Tribunal is satisfied that she commenced study in a Certificate IV in Business in August 2012, and that she had completed this course by September 2013, not long after her student visa expired.

35. The Tribunal notes that she was a relatively new arrival at that time and may not have understood her obligations to change visa class when changing course enrolments. However, she showed that, in that time, she was prepared to continue studies of some sort here which would have entitled her to a student visa if she had lodged the visa application, rather than undertaking no studies and/or working. 

36. The Tribunal would also expect the education providers to keep an eye on this and advise students if they are trying to enrol in an area where they do not have the required visa.

37. Given that she was enrolled to study for most of the period of her last visa, and appears to have attended classes and completed units in that time, the Tribunal would have given her the benefit of the doubt and found that she had substantially complied with condition 8516 of her last visa had that law still been in existence.  

38. Turning to her studies in general, the Tribunal observes that the applicant has been in Australia for over 5 years and has only completed a Certificate IV in Business. However, the Tribunal also notes that she has been on bridging visas for much of that time, not student visas. Further, the Tribunal notes that she was pregnant for most of 2014 and had a child in December 2014 and this may have had some effect on her past study progress. Further, the subsequent Tribunal review and court review of her visa refusal may also have had an effect on her studies. She is currently studying a Diploma of Management, due to be completed in March 2016 and is meant to commence an Advanced Diploma in April 2016

39. The Tribunal does not therefore consider it appropriate to make a decision at this time on whether she is a genuine applicant for entry and stay as a student under either cl. 572.223(1) or cl.572.223(2)(b).

40. Rather, the Tribunal will make a positive finding under cl.572.231 that, based on PRISMS records referred to earlier, the applicant is currently enrolled in, or is the subject of a current offer of enrolment in, a course of study that is (a) a principal course; and (b) of a type that was specified for Subclass 572 visas by the Minister in a Gazette Notice (i) made under regulation 1.40A; and (ii) in force at the time the application was made. [Under r.1.40(3) the principal course here would be the Advanced Diploma of Management for which there is a current CoE, not the Diploma of Management she is currently studying.]

41. However, the Department will now consider whether or not the applicant is a genuine applicant for entry and stay as a student in determining whether she meets the other requirements for a student visa, and this may well be dependent on the progress of her current studies.

    DECISION

42. 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.572.231 of Schedule 2 to the Regulations

    David Dobell
    Member