1515454 (Migration)

[2016] AATA 3282

1515454 (Migration) [2016] AATA 3282 (17 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss KA WAI NG

CASE NUMBER:  1515454

DIBP REFERENCE(S):  BCC2015/2629417

MEMBER:Adrian Ho

DATE:17 February 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 570 Independent ELICOS Sector visa:

·cl.570.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 17 February 2016 at 5:49pm

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 27 October 2015. The delegate decided to refuse to grant the visa on 27 October 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.570.223(1)(a) of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 17 February 2016 to give evidence and present arguments with the assistance of a Cantonese interpreter.

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

6. Where used in this decision:

   a.The applicant refers to the first-named applicant;

   b.COE refers to Certificate of Enrolment;

   c.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   d.VET refers to Vocational Education and Training;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.Direction 53 or the Direction refer 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 570.

   Genuine Temporary Entrant

8. A major issue in the present case is whether the applicant meets the time of decision criterion in cl.570.223. Clause 570.223(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)     …

9. 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.

10. 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.

    Findings

11. The applicant gave frank and clear evidence at hearing and provided the tribunal with clear and detailed written material.

12. The applicant expressed frustration with the decision of the delegate, and the tribunal confesses to not finding the reasoning used by the delegate helpful.

13. The applicant recounted her history of study in Hong Kong, to year 11, and having studied English but not have achieved any proficiency in the language.  She recounted her two years on working holiday visas in Australia where she interacted largely with Chinese speakers.  She proposes, and still proposes, to study a 9 month certificate II in English.  The tribunal accepts that her English is poorly developed and accepts that English is commonly used in Hong Kong and that acquisition of a higher level of proficiency in English has the potential to widen her job opportunities or increase her salary. 

14. The tribunal accepts her evidence that she is the only child of parents who are in Hong Kong, and she has a long term partner living in Hong Kong, and finds that these connections provide her with an incentive to return.

15. The tribunal accepts that the English course proposed has value to the applicant’s future outside of Australia and accepts her unequivocal evidence that she is adamant she will return to Hong Kong at the end of the 9 month course.

16. 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.570.223(1)(a).

17. As the Tribunal has found the applicant meets the requirement of cl.570.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

18. 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 570 Independent ELICOS Sector visa:

    ·cl.570.223(1)(a) of Schedule 2 to the Regulations.

    Adrian Ho
    Member