1509275 (Migration)

[2016] AATA 3350

1509275 (Migration) [2016] AATA 3350 (15 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Qi Wu

CASE NUMBER:  1509275

DIBP REFERENCE(S):  BCC2015/775271

MEMBER:Shahyar Roushan

DATE:15 February 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 573 Higher Education Sector visa:

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

Statement made on 15 February 2016 at 11:11am

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 10 March 2015. The delegate decided to refuse to grant the visa on 22 June 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. The delegate 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 decision under review 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.

8. In his application, the applicant applied for a Student (Class TU subclass 573) visa on the basis that he was enrolled in a Bachelor of Commerce.

9. According to the delegate’s decision, a copy of which was provided to the Tribunal in support of the application for review, the applicant arrived in Australia on 31 August 2010 on a student visa. It was noted in the decision that the applicant had previously been enrolled in an English course, a Diploma of Business Administration, Diploma of Commerce, Advanced Diploma of Commerce, Advanced Diploma of Management and a Bachelor of Commerce. The delegate noted that the applicant has only completed an English course and a Diploma of Commerce since arriving in Australia in August 2010; and that he did not study between 1 December 2013 and 15 September 2014 – a total of 8.5 months.

10. On 12 March 2015, the department wrote to the applicant in relation to his circumstances and the genuine temporary entrant criterion. He was invited to provide comments in relation to what he intended to do after completing his studies in Australia; his employment plan; how he has been funding his studies in Australia; details of his employment history; and why he was not enrolled in any course of study between December 2013 and September 2014.

11. The applicant responded to the invitation on 20 March 2015, providing a statement and other evidence, including copies of emails to the Student Advocacy Advisor.

12. The applicant stated that his father passed away during the time he was studying at Macquarie University in 2013 and he returned to China. He failed several subjects in 2013 and his education provider asked him to change his major or risk a lower GPA. Upon informing his education provider that his father had passed away, he was encouraged to speak to an adviser, who told him that he could transfer to another university. The applicant subsequently transferred to Curtin University. He intends to study a Master degree after completing his Bachelor degree and then return to China to find suitable employment.

13. In refusing the application, the delegate found that, given the applicant’s lack of academic progress, his study history, his immigration history and his potential circumstances in Australia, he is using the student visa program to circumvent permanent migration programs. She was not satisfied that the applicant is a genuine applicant for entry and stay as a student.

    Application for Review

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

15. In submission dated 8 December 2015, the applicant’s representative provided the following information:

16. The applicant came to Australia to study English at Greenwich College on 25 June 2009 and returned to China on 06 July 2010. He then applied for a student visa and came to Australia on 6 September 2010 to study a packaged course, combining an English course, a foundation course and a Bachelor of Commerce (Accounting) at Macquarie University.

17. The applicant soon realised that the foundation course was very demanding and he stopped working to concentrate on his studies. Despite failing a few subjects, he completed the course in August 2012 and was awarded Diploma of Commerce in April 2013. This made him eligible to commence second year study of Bachelor of Commerce at Macquarie University.

18. In February 2013, the applicant commenced his bachelor degree at Macquarie University. In March his father was critically ill and the applicant departed Australia to be with his father. The applicant’s father passed away, which caused the applicant much sadness. The applicant returned to Australia shortly after the funeral so that he could attend his exams. He was not aware of his option to take leave or postpone his exams as a result of his father's death as he assumed that he would waste a whole semester of studying if he did not sit the exams.

19. The loss of his father and study pressures had a strong impact on his well-being and ability to perform at the university. During this time he had little help and assistance being alone in Australia and he could not express his emotions to his mother, who was also in a weak state. Being an overseas student with limited social life, he did not know how to deal with his issues and chose to keep the sadness to himself. The applicant was also reluctant to seek help from doctors, as he feared his English was not good enough to communicate the problem. Consequently, the applicant failed all four subjects in the second semester.

20. In November 2013, the University emailed the applicant to discuss his performance. On 13 January 2014 the applicant spoke to the University's staff and Student Advocacy and a Support Advisor. He was informed that because he had failed so many subjects, it would be very hard for him to graduate with a low GPA and he should consider changing courses or apply to ‘refresh’ his loading. The Advisor further referred the applicant to Mr John Machlin, a clinical psychologist from the University Counselling Service, who provided a letter of support on 28 February 2014. The applicant then applied to refresh his loading and did not enrol for this semester as he was unsure if his application would be granted.

21. In late March the applicant was sent a notice of cancellation of his CoE to his university email account, which he failed to check. The applicant continued to wait for the outcome of his application to refresh the loading. At the end of the semester, the applicant followed up with the university's Advisor and was told that he should approach the Immigration Department. The applicant immediately contacted the Department and explained the situation to a departmental officer. The applicant was advised that his visa was still valid and he should send an email to the Department. The applicant sent an email explaining his situation on 2 July 2014 and received a response to provide further personal information. The applicant provided the required information and received an email to call the department. The applicant went back to see his Advisor for help, who tried to contact the Department but failed to get through. One week later, the applicant was advised that his application to refresh his loading had failed and he could change to another school or speak to the University for a new CoE.

22. The applicant then decided that the course was too challenging for his level and English ability and started to look into other courses. The applicant received several offers in August 2014 and he began to study an Advanced Diploma in Management at SIBN College on 15 September 2014. Soon after, he received an offer from Curtin University and decided that Curtin University would be a better choice as it is for a higher qualification at a more recognised institution, and the study load is more reasonable for his level. The applicant commenced his studies at Curtin University in November 2014 and is now in his fourth semester.

23. The applicant's academic performance at Curtin University has been considerably better. He passed all four subjects in the first semester, but failed three of four subjects in the second semester, as he became overly confident and the courses became more difficult. However he quickly realised his weakness and studied hard and passed all four subjects in the third semester.

24. The applicant is now in his fourth semester, which is due to end in February 2016, and he is confident of passing all his subjects this semester. If the applicant passes all of his subjects this semester, he will only have three more subjects or one semester to complete before fulfilling the requirements for a Bachelor of Commerce degree. It was submitted that the applicant has been studying in Australia since 2009. He is just one and a half semester away from obtaining his degree. If the applicant were to return to China now, he would have little prospects of getting into University as the entry process is very rigid.

25. The applicant has significant personal ties to China. He is an only child and it is a cultural obligation that he remains close to his mother. The applicant plans to work in capital cities in China where he will establish his life close to his mother. Although the applicant had previously planned to pursue a Masters course, he now intends to go back to China. He plans to work in Beijing where there are more job opportunities for someone with an Australian degree.

26. The applicant has no adverse immigration history. Although he did not study for a period of time, there were factors beyond his control. He genuinely intends to only study in Australia temporarily.

27. Under the cover of the submission, the applicant’s representative submitted documents relating to his studies in Australia, including certificates of attendance, statements of achievement and academic records. He also submitted:

    ·     A letter of Support from John Machlin, Psychologist, University Counselling Service, Macquarie University

    ·     Letter from Student Advocacy and Support Advisor, Macquarie University

    ·     Email correspondence with DIBP and the university advisor

    ·     His father’s death certificate

28. The applicant appeared before the Tribunal on 11 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.

29. The Tribunal 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.

30. The Tribunal accepts that in February 2013, following the completion of his Advanced Diploma, the applicant commenced his bachelor degree at Macquarie University. A month later, his father fell critically ill and subsequently passed away. The Tribunal accepts that this incident had a significant impact on the applicant. It was unfortunate that the applicant was unaware of or did not pursue the option of taking leave or postponing his exams to cope with the loss. Rather, naively, he assumed that he would waste a whole semester of studying if he did not complete his exams. Having observed the applicant at the hearing, the Tribunal accepts that due to his highly introverted personality and lack of confidence, he might have been reluctant to seek help from health professionals. Consequently, the applicant failed his subjects. The Tribunal further accepts that subsequent communications with his education provider had caused him genuine confusion in terms of his available options and had ultimately led to a gap in his studies.

31. The Tribunal accepts that throughout this time the applicant had no intention other than to pursue and complete his studies. The Tribunal accepts that he subsequently transferred to Curtin University to complete his degree. Since then the applicant has been committed to his studies. The Tribunal accepts that he has clear objectives and a trajectory in choosing the course he is studying. The Tribunal also accepts that the applicant feels that he has an obligation to care for his widowed mother in China and that he intends to return to China following the completion of his degree. The evidence before the Tribunal does not indicate that, other than completing his studies, he 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.

32. 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).

33. 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

34. 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.

    Shahyar Roushan
    Senior Member