1507797 (Migration)

[2015] AATA 3716

1507797 (Migration) [2015] AATA 3716 (17 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wenkui XIE

CASE NUMBER:  1507797

DIBP REFERENCE(S):  BCC2015/592155

MEMBER:Shahyar Roushan

DATE:17 November 2015

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 573 Higher Education Sector visa:

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

Statement made on 17 November 2015 at 4:52pm

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 delegate decided to refuse to grant the visa on 12 February 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).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.223(1)(a)of Schedule 2 to the Regulations because he was not satisfied that the applicant is a genuine applicant for entry and stay as a student.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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)     …

6. 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.

7. 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.

   Application for a Student Visa

8. In his application, the applicant applied for a student (Subclass 573) visa on the basis that he was enrolled to undertake a Certificate IV in Commercial Cookery, a Diploma of Hospitality and a Bachelor of Business.

9. According to the delegate’s decision record, a copy of which was provided by the applicant to the Tribunal for the purposes of review, the applicant was granted his initial student visa (subclass 571) on 18 August 2008 and arrived in Australia on 24 August 2008. The applicant subsequently enrolled in a High School Preparation course, a Senior Secondary course, a Bachelor of Engineering and a Bachelor of Liberal Arts and Science. The applicant only completed a Higher Secondary course. The delegate referred the Provider Registration and International Student Management System (PRISMS), indicating that the applicant did not study between 17 December 2012 and 3 December 2014.

10. On 24 February 2015, the department sent the applicant an email inviting him to comment on his circumstances in relation to the genuine temporary entry criterion, including his reasons for choosing to undertake the courses of study specified in his application; his reasons for choosing his education provider; his reasons for choosing to study in Australia rather than in his home country; his planned living arrangements in Australia; the relevance of his courses of study to his academic and/or employment background and the relevance of the courses of study to his future career and/or educational plans.

11. The applicant responded to the department, essentially stating that he used to study Economics at Sydney University but he failed a few of his subjects. He realised that he was not really interested in Economics and decided to transfer to another course but he was unsure of what to do next. He completed his HSC in Australia and achieved good results. Recently, he has found a part-time job as a kitchen hand and he loves his work. He is not an ‘academic person’ and would like to learn more practical skills. He has now decided to study Commercial Cookery.

12. The delegate refused the application because she was not satisfied that the applicant had provided an acceptable explanation for the gap in his studies between 17 December 2012 and 3 December 2014 and that he had provided no evidence to show that he had sought assistance in relation to the difficulties he claims to have been experiencing. The delegate also noted the applicant’s lack of career progression and career direction, as well as lack of lack of information in relation to the relevance of his courses to his future employment. The delegate was not satisfied that the applicant had provided a reasonable account of why he had altered courses. The delegate concluded that the applicant was using the student visa program to circumvent permanent migration programs. The delegate was not satisfied that the applicant is a genuine applicant for entry and stay as a student.

    Application for Review

13. The applicant applied for a review of the delegate’s decision. He was represented in relation to the review by his registered migration agent.

14. In support of his application for review, the applicant submitted a copy of his academic transcript relating to his Bachelor of Liberal Arts and Sciences in 2013 and 2014and a copy of his academic transcript for his Certificate IV in Commercial Cookery Course.

15. The applicant also submitted a statement, in which he reiterated that he completed his HSC in Australia, achieving good results. Subsequently, he received offers from 4 universities. He initially enrolled in an Engineering degree but soon realised that he course was too difficult for him. He then transferred to another course, but he also failed a few of his subjects in that course. He then realised that those courses were not suitable for him. His father then asked him to study accounting in order to assist with the family business. The applicant enrolled in a Diploma of Accounting but his heart was not in it and he did not want to manage his family’s business. He made some ‘bad friends’ and neglected his studies. He spend a a year travelling around Australia and having a good time. He then realised that he has made many mistakes and that he has wasted his time and money. After finding a part-time job as a kitchen-hand, he realised that he wanted to learn some practical skills and decided to study Commercial Cookery.

16. The applicant appeared before the Tribunal on 30 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Where relevant, the applicant's evidence to the Tribunal is referred to below.

17. At the hearing the applicant stated that he arrived in Australia in August 2008 and completed his HSC 2010. He did well in his HSC and subsequently enrolled in a Bachelor of Civil Engineering at Sydney University, which commenced in 2011. While he passed all of his subjects in the first semester, he failed two subjects in the second semester. In his second he failed all his subjects. He found the course very difficult and he was also distracted by a relationship he had entered into. After that he withdrew from the Civil Engineering course and enrolled in a Bachelor of Liberal Arts and Science in Semester 2, 2012. He started studying very hard, but he struggled with mathematics .He only passed two or three subjects in Semester 2, 2012 and 2 subjects in Semester 1, 2013. His results took away his confidence and he felt completely dispirited. He decided to transfer to another school, but his parents did not allow him to do so. He then decided that he did not want to study at a university.

18. The applicant stated that he spoke to his parents who insisted that he obtains a qualification from an Australia university. Subsequently, he transferred to Holmes Institute in order to study towards a Diploma of Accounting on his father’s advice in order to help with the family’s business. After attending a few classes he stopped attending. He had lost his confidence and was feeling lost. At the end of 2014 he realised that he needed to have a qualification but he could not go back to study a Diploma of Accounting. At the beginning of 2015 he found a job as a Kitchen hand and he found the job interesting. He decided to study Commercial Cookery. He is now studying towards a Certificate IV in Commercial Cookery. The course is due to end in May 2016. He is doing well in the course and has attended every class. He intends to study towards a Diploma of Hospitality and then a Bachelor of Business. His plan is to return to China and to open a restaurant. His parents had a plan to open a restaurant and he would be able to assist with his family’s project.

19. The applicant stated that at first his father did not allow him to study cookery as he wanted him to continue studying accounting. He spoke to his father truthfully about his situation and plans and his father eventually agreed with his decision.

20. The applicant stated that he has made mistakes feels regretful every day. It is not easy for international students to stay here without support. However, since the beginning of the year he has been studying seriously and has attended all his classes.

21. The Tribunal has serious concerns in relation to the applicant’s study history. He has had gaps in his studies and his academic progress, for the most part, has been poor. The Tribunal, however, found the applicant to be a credible and reliable witness. The Tribunal found his oral evidence, which was consistent with the contents of his submission and the documentary evidence he has provided, to be persuasive.

22. Having heard his oral evidence at the hearing, the Tribunal accepts that the applicant has been committed to his studies since early this year. The Tribunal accepts that he has clear objectives and a trajectory in choosing the course he is studying and the courses he intends to study. The Tribunal accepts that he is strongly motivated by obtaining higher education qualifications in Australia. His objective is to obtain his qualifications in cookery and business before returning to his home country. The applicant’s entire family reside in China and the evidence before the Tribunal does not indicate that, other than completing his studies, she has a strong incentive to remain in Australia. The Tribunal is not satisfied that the applicant is using the student visa program to circumvent permanent migration programs.

23. 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.573.223(1)(a).

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

    DECISION

25. 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.573.223(1)(a) of Schedule 2 to the Regulations.

    Shahyar Roushan
    Senior Member