1507964 (Migration)

[2016] AATA 4196

1507964 (Migration) [2016] AATA 4196 (29 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yuanyuan Sun

CASE NUMBER:  1507964

DIBP REFERENCE(S):  CLF2013/172188

MEMBER:Alan Duri

DATE:29 July 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 visa 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 29 July 2016 at 1:40pm

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 on 25 June 2013 to refuse to grant Miss Sun a Student (Temporary) (Class TU) Subclass 573 visa under s.65 of the Migration Act 1958 (the Act).

2. Miss Sun was born in China in 1987 and she first arrived in Australia on 25 October 2007 on a Subclass 573 student visa.

3. Miss Sun applied for a further student via on 13 March 2013.

4. The following is a summary of subsequent events:

   ·On 25 June 2013 the delegate refused to grant the visa on the basis that Miss Sun did not satisfy cl.573.235 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she had not complied substantially with the conditions of her last substantive visa. In particular, the delegate noted that Miss Sun was not enrolled in any course or undertaking any study from 11 July 2011 until 11 March 2013.

   ·On 3 March 2014 the Migration Review Tribunal affirmed the delegate’s decision.  The tribunal had invited Miss Sun to attend a hearing on 3 March 2014.  However, she did not attend the hearing and the tribunal proceeded to make its decision on the basis of the material before it. 

   ·On 4 March 2015 the Federal Magistrates Court (by consent) ordered that the matter be reconsidered.  In particular it was noted that at paragraph 19 of the tribunal’s decision, the Member noted that Miss Sun’s explanation of the reason why she was in breach were “not exceptional”.  Advice was obtained that the tribunal would err if it asks itself whether the reasons given by the applicant for a failure to comply with conditions are “exceptional” as the threshold for the substantial compliance.

   Hearing

5. Miss Sun appeared before the tribunal on 22 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.

6. Miss Sun was represented by her registered migration agent Mr Jordan Kin Sin Tew of Fragomen.

7. Prior to the hearing the hearing the tribunal received a submission from Mr Tew and a variety of material to the effect that:

   ·Clause 573.235 (and equivalent clauses for the other student visa subclass) has been repealed and applies to all applications made on or after 22 March 2014 and applications made, but not finally determined, before 22 March 2014.

   ·Miss Sun provided a Confirmation of Enrolment form indicating that she is enrolled in a course commencing on 4 January 2016.

   ·The submission requested that the tribunal remits the application for reconsideration with the direction that Miss Sun meets cl.572.231; or in the alternative request in the tribunal clarified which issues those seeking to address at the hearing.

8. The tribunal advised that it would be considering time of decision criteria, including, but not limited to, cl.572.223.

9. Shortly before the hearing the tribunal received a bundle of documents that where relevant will be referred to below.

   Miss Sun’s evidence

10. At the outset of the hearing the tribunal indicated that it will be considering whether Miss Sun satisfies cl.572.223, and in particular whether Miss Sun intends genuinely to stay in Australia temporarily, having regard to her circumstances, immigration history and other relevant matters.

11. Miss Sun told the tribunal that she is currently undertaking studies at Wells International College and undertaking a Diploma of Web Development.  She indicated that the course commenced on 4 January 2016, but she did not attend the first week because it was an orientation week and not important.  However, she suggested that she intends to participate in the course.  Assuming she completes her coursework she will achieve a diploma in November 2016, and she hopes to undertake a bachelor degree in interactive multimedia studies at the AIT in Ultimo.

12. Miss Sun stated that she is currently living in Rhodes and she is single.  She indicated that she is not working and she is financially dependent on income her parents send from China.  She explained that her father is in a printing/exporting business.  Her parents’ funds are usually remitted by friends who happen to be travelling to and from China or through Western Union.  Miss Sun stated she has some ongoing health problems from her accident.  In particular, she has back pain.  She last worked at a juice shop in December 2012 and she has not worked since.

13. The tribunal asked Miss Sun about her previous studies.  She told the tribunal that before commencing her current course she undertook a Bachelor of Multi Media course from February 2013 until April/May 2013.  Miss Sun suggested that she stopped studying following the refusal of the student visa application upon the advice of her then migration agent.  The tribunal noted that the department’s decision to refuse the visa was made on 25 June 2013. The tribunal noted her evidence that she ceased studies in April or May 2013.  The tribunal noted that this suggests that she had in fact stopped studying before the department’s decision to refuse the student visa application.  Miss Sun recalled that she completed the first semester.  She remembered that the assessment was based on a group assignment, but that she did not pass the course because she only passed one out of three assignments.

14. Miss Sun told the tribunal that she had previously studied a Diploma of Accounting from September/October 2011 until her accident in April 2012.  The tribunal noted that the education provider’s records suggest that she did not commence the course.  Miss Sun maintained that she did indeed undertake the course.  She recalled that she is to pick up her homework each week.

15. The tribunal asked Miss Sun about her studies.  Following the motor vehicle accident in April 2012.  She stated she was on her way to work when she was hit by a motorbike.  She was taken to St Vincent’s Hospital in Melbourne and released that night.  Miss Sun suffered injuries to her face, jaw and chest.  The tribunal asked whether there was any reason she did not return to her studies later that year.  Miss Sun gave evidence to the effect that she suffered psychological problems.  She said that she was scared.  She did not tell her parents.  She did not notify the school.  However, she did not see any health professionals such as a psychologist, because it was not within the Chinese custom to do so.  After the accident her face was swollen.  She ended up with a scar on her face and she did not want to go outside of her household.

16. At the conclusion of the hearing the tribunal noted three issues that could be relevant in determining whether or not Miss Sun intends genuinely to stay in Australia temporarily.  The tribunal noted:

    ·The education provider indicated that Miss Sun did not commence her studies in October 2011;

    ·At any rate, following her accident in April 2012, Miss Sun took no steps returned to studies or at the very least informed the education provider;

    ·Miss Sun’s evidence at face value could suggest that she abandoned her 2013 studies before the department’s refusal of the student visa application.

17. The tribunal invited further submissions addressing whether or not Miss Sun intends genuinely to stay in Australia temporarily in light of the above points.

18. On 29 January 2016 and 15 April 2016 the tribunal received further submissions and a number of documents that have been taken into account in reaching this decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. Miss Sun applied for a Subclass 573 visa on 13 March 2013 on the basis that she was undertaking a Bachelor if Interactive Media.

20. The Provider Registration and International Student Management System (PRISMS) shows the following:

    ·    Miss Sun did not commence her Bachelor degree and her enrolment was cancelled on 2 October 2013.

    ·    On 4 January 2016 Miss Sun enrolled in a Diploma of Website Management.  However the enrolment was cancelled 28 April 2016 for unsatisfactory attendance.

    ·    Miss Sun is now enrolled on a Diploma of Information Technology with a commencement date of 4 July 2016.   

21. Miss Sun was originally assessed under the criteria for a Subclass 573 Higher Education Sector as she was originally enrolled in a Bachelor of Interactive Media.  However Miss Sun never commenced that course and as at the time of decision she has apparently commenced a Diploma of Information Technology course from 4 July 2016.  The relevant subclass in this case is Subclass 572 Vocational Education and Training Sector. There is no suggestion that Miss Sun. meets the criteria for any of the other subclasses.

22. The basis of the department’s decision to refuse Miss Sun’s student visa application was that she failed to meet cl.573.235 because she did not substantially comply the conditions of the last visa she held.

23. As noted in the prehearing submission cl.573.235 has been repealed. The effect of the repeal includes all applications made, but not finally determined before 22 March 2014. As Miss Sun’s application has not been filed determined, it follows that cl.573.235 (or its equivalent in the other student visa subclasses) no longer applies.

24. As noted above the tribunal raised the question of whether Miss Sun, in light of her visa history, satisfies cl.572.223 and in particular whether she is a genuine applicant for entry and stay as a student.  Miss Sun’s education history leaves a lot to be desired.  She presented as a particularly unimpressive witness at the hearing. Nevertheless at the time of the hearing Miss Sun claimed that she genuinely intended to resume her studies.  Miss Sun enrolled in a diploma course a few weeks before the tribunal hearing.  Bizarrely Miss Sun did not attend the first week of the course because in her view “it was not important”.  Such a lackadaisical approach to her studies should have been a warning sign to the tribunal.  However at the time the tribunal was prepared to accord considerable benefit of the doubt even though some of her evidence about why she did not resume her studies after the accident bordered on being far-fetched.  At any rate Miss Sun gave unequivocal evidence at the hearing that she was intending to continue her studies and is expected to complete her course in November 2016.

25. However as at the time of decision the PRISMS records suggested that Miss Sun did not have satisfactory attendance at her original diploma course and appears to not have seriously studied for the first half of 2016.

26. The tribunal has serious concerns as to whether Miss Sun is a genuine applicant for entry and stay as a student. The tribunal further notes Miss Sun’s vague evidence about her financial capacity. At any rate the PRISMS report is clearly adverse information when it comes to the assessment of cl.572.223, which in turn requires a notice under s.359A and the possibility of of yet a further hearing.  Rather than drag out proceedings any further, the tribunal now accepts the original submission to restrict the matter to considering cl.572.231 should have been the appropriate course of action.

27. Clause 572.231 provides:

    The applicant is 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..

28. According to the PRISMS records commenced a course of study on 4 July 2016 with a course end date of 9 June 2017 will stop the course is a Diploma of Information Technology at the Clarendon Business College.   As at the date of decision Miss Sun appears to be still enrolled in this course of study, which is a type specified for Subclass 572 visas.   Whether she remains enrolled in the future is another question.  However fact remains that at the time of this decision Miss Sun satisfies cl.572.231.

    DECISION

29. The tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

    ·cl.572.231 of Schedule 2 to the Regulations.

    Alan Duri
    Member