1507253 (Migration)

[2016] AATA 3086

1507253 (Migration) [2016] AATA 3086 (13 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Siyu Zhao

CASE NUMBER:  1507253

DIBP REFERENCE(S):  BCC2015/861948

MEMBER:Don Lucas

DATE:13 January 2016

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 573 Higher Education Sector visa:

·cl.573.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 13 January 2016 at 6:59pm

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 16 March 2015. The delegate decided to refuse to grant the visa on 15 May 2015. 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. The applicant appeared before the Tribunal on 5 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, whose services were only occasionally called upon.

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. The evidence provided by the applicant to the Department involved enrolment in VET sector courses, being a Diploma of Management followed by an Advanced Diploma of Management. The delegate accordingly assessed the application against the schedule to criteria for the subclass 572 Vocational Education Training visa.

9. The evidence before the Tribunal is that the applicant completed her Diploma of Management course on 9 November 2015, earlier than the expected completion date in May 2016, following an accelerated course program. Rather than undertake further VET sector studies, the applicant has sought and received an offer of enrolment in a Bachelor of Business (Management) course running between January 2016 and October 2018.

10. The Tribunal accordingly proceeds to assess the applicant against the genuine temporary entry requirements contained within the subclass 573 Higher Education Sector visa. In view of the applicant’s current enrolment offer, consideration of the schedule 2 criteria for the subclass 572 VET sector visa no longer have any relevance to the applicant’s circumstances.

11. Accordingly, the issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(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)    …

12. 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.

13. 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.

14. Through her representative, the applicant has provided the following submissions:

    Circumstances surrounding the applicant’s visa status

    1.The applicant was born and raised in China, her date of birth is 10 July 1990; her primary language is Chinese.

    2.The applicant came to study in Australia on 25 September 2011,  and she was enrolled to the course of English for Academic Purpose at Deakin Univeristy English Language Institute.

    3.The applicant successfully completed the English course at Deakin University and proceeded to Bachelor of Commerce in June 2012.

    4.The applicant has studied 6 trimesters at Deakin University and passed 7 subjects in Bachelor of Commerce, left 4 subjects more to go to complete the degree.

    5.The applicant has been excluded from Deakin University Bachelor of Commerce on 19 August 2014 for the period of 14 July 2014 to 19 June 2015 because she failed the subject “Financial Accounting” three times. 

    6.The applicant transferred to Cambridge International College to study Bachelor of Business (Accounting) in September 2014.

    7.The applicant studied one accounting subject at CIC and failed.

    8.The applicant then enrolled to Zarah Institute of Education for the Diploma of Management course from 11 May 2015.

    9.The applicant was due to complete the diploma course on 9 May 2016. However, the applicant has accelerated the study and she has finished the course on 11 November 2015. The completion letter was just issued today.

    10.          The applicant has applied for a 572 student visa on 16 March 2015. The application was then refused by the delegate on 15 may 2015 because the delegate does not satisfied that the applicant is a genuine applicant for entry and stay as a student.

    Assessing the genuine temporary entrant criterion (based on direction no. 53)

    The applicant’s potential circumstances in Australia

    11.          The applicant has been studied in Australia since 2011. She has completed the English course and substantial part of the bachelor degree (only 4 subjects left to complete the degree).

    12.          The applicant’s parents have played an important role on selecting the accounting major at Deakin University. The mother of the applicant is an accountant in china so she hopes the daughter could adopt the same career approach. The applicant tried very hard to pick up the accounting subjects but she struggled to pass them due to lack of interest. All the subjects she failed at Deakin were accounting subjects.

    13.          The applicant has been excluded from Deakin University because of the triple fail of accounting subject. The applicant was very upset about it and decided to transfer to Cambridge International college to continue the accounting major because she didn’t want to disappoint her mother.

    14.          Unfortunately the applicant failed accounting subject again at CIC. She has realised she was just not suitable for accounting study and convinced her mother of changing the major to management.

    15.          The applicant has completed the diploma of management at Zarah Institute much earlier than the expected completion due to her exceptional performance.

    16.          She has just received the offer letter for bachelor of business (management) from CIC and will accept the offer to start the course in January 2016.

    17.          The applicant is financially supported by her family.

    The applicant’s circumstances in her home country

    18.          The applicant is financially supported by her family. Her mother works for a piano company in Qingdao, Shandong. Her annual salary is 110, 000 RMB (equivalent to $24,000 AUD)

    19.          The applicant’s father works in us as a head chef. His annual income is around $60,000 USD.

    20.          The parents wish to send the applicant to us for postgraduate study after she completes the bachelor degree in Australia. The school application is now in process, an offer letter could be issued once the applicant receives the completion letter of bachelor degree.

    21.          The applicant is the only daughter in the family. She has strong ties to her family and she is waiting to reunion with the parents in us.

    Value of the course to the applicant’s future

    22.          The applicant has now completed the diploma course and is proceeding to bachelor degree. The college has confirmed to grant her at least 16 subjects credit exemptions. Most of the subjects the applicants has completed were in the marketing and management areas.

    23.          The applicant would like to pursue a career in marketing and management area. The applicant’s grandpa used to be a manager in one of the state companies of China – Qingdao railway bureau. This state company has started its overseas expansion recently by acquiring and merging companies in other countries such as us, europe and australia. The applicant will join and contribute to the overseas operations after she completes her studies in marketing and management with her grandpa’s help. The railway bureau now is in great demand for marketing and management specialists who are familiar with western countries. The applicant’s Australian study experiences and the skills she learnt would be very helpful.

    The applicant’s immigration history

    24.          The applicant has granted her initial student visa in 2011 and this 572 student visa application was the second student visa in Australia.

    25.          The applicant has substantially complied with her student visa conditions.

    26.          The applicant has been reported by Deakin University for unsatisfactory progress due to lack of interest in accounting.

    27.          The applicant soon adjusted her major and enrolled to a more suitable course.

    28.          The applicant has been unlawfully non-citizen for 2 days between 15 march 2015 and 17 march 2015. This was caused the department’s system failure. The applicant tried to lodge her student visa online on 13 March and 14 March. However the system couldn’t identify her and it showed error in the online system. The applicant hence posted out a paper application on 15 March 2015. The department received and acknowledged the application on 17 March 2015.

    Conclusion

    In conclusion, we submit that when all the facts of this case are considered in its totality. We believe that Ms Zhao should have her visa resumed so she could purse her study in Australia. Ms Zhang has made all the attempts she could to comply with her visa conditions.  She clearly knows what she wants to in the future and is studying towards it.  She is a genuine student with a desirable career goal so she should deserve another chance to continue her studies in Australia.

15. The Tribunal has considered the applicant’s immigration history together with her study history. This reveals an applicant initially arriving in Australia on a subclass 573 visa with the stated intention of undertaking a Bachelor of Commerce (Accounting) following initial English language studies. Whilst it is evident that the applicant commenced and completed more than half of the subjects towards her Bachelor of Commerce, it was never completed and the applicant was in fact excluded by the course provider Deakin University owing to unsatisfactory course progress. However, the evidence does not indicate to the Tribunal an applicant who was not making legitimate effort towards completion of this course, and the unsatisfactory progress relates specifically to her failure on three separate occasions to successfully complete accounting subjects. The Tribunal accepts the applicant’s submission that the accountancy career pathway had been somewhat forced upon her by her parents, her mother being a practising accountant, and this was not an area with the applicant had particular competencies or interest.

16. The Tribunal accepts that the applicant genuinely wishes to pursue a career in marketing and management. The Tribunal does not consider this to be recent invention, and takes into account the evidence of the applicant’s completion of a marketing qualification in her home country at an Australian based education provider prior to her coming to Australia. Taking the evidence into consideration the Tribunal accepts that the applicant’s current higher education sector degree course in business management has a value to the applicant in terms of her proposed career pathway.

17. The Tribunal further accepts the submissions concerning the brief period of time the applicant came to be an unlawful noncitizen in March 2015 as having arisen from circumstances that were largely beyond the applicant’s control.

18. 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.573.223(1)(a).

    CONCLUSIONS

19. As the Tribunal has found the applicant meets the requirement of cl.573.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

20. 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 573 Higher Education Sector visa:

    ·cl.573.223(1)(a) of Schedule 2 to the Regulations.

    Don Lucas
    Member