1516686 (Migration)

[2016] AATA 3286

1516686 (Migration) [2016] AATA 3286 (15 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuan Zhang

CASE NUMBER:  1516686

DIBP REFERENCE(S):  BCC2015/2473718

MEMBER:Alison Mercer

DATE:15 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 573 Higher Education Sector visa:

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

Statement made on 15 February 2016 at 12:47pm

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 26 August 2015. The delegate decided to refuse to grant the visa on 13 November 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 delegate found that the applicant did not satisfy the requirements of cl.573.223(1A)(b)(i) of Schedule 2 to the Regulations.  This provision required that the delegate was satisfied that the applicant was an eligible higher degree student, and was a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa would be granted.  The delegate found that the applicant had been enrolled in a Masters of International Finance and Professional Accounting at Deakin University but had been excluded from that course on 6 February 2015.  The delegate found that there was a 186 day period before the applicant enrolled in a new course, a Bachelor of Business degree at Cambridge International College, on 10 August 2015.  He was therefore in breach of condition 8202  of his student visa, which required him to maintain enrolment in a registered course. The delegate noted that the applicant had provided an explanation for the gap in his study but was not satisfied with it.

4. The Tribunal received a review application from the applicant on 4 December 2015.  It was accompanied by a copy of the delegate’s decision and a written statement from the applicant.  In his statement, the applicant indicated that he came to study in Australia on 13 August 2013 and undertook an English course at Deakin University between 15 August 2013 and 1 November 2013, after which he commenced his Masters course on 4 November 2013. As he was a new student here and not used to the study style in Australia, he failed 3 subjects in the first trimester. However, in the second trimester, he had adapted better to the style of study in Australia, so in this trimester, he only failed 1 subject.  Unfortunately, he failed Accounting again. He was sent a letter by Deakin University telling him that he had to pass this subject at the next attempt. The applicant stated that as he thought that he had already adapted to studying here and Accounting was a basic subject, he undertook it again. However, in this trimester, his landlord gave him 10 days’ notice to vacate where he was living less than 1 month before the final exam. At that time, the most important thing for the applicant was to find a place to live. This had a bad effect on him, and as a result, he failed Accounting again. He was then excluded from the course by Deakin University. 

5. The applicant stated that Deakin University told the Immigration Department that the applicant did not have enough time to go to class but he wanted to explain about this. The first and second trimester he studied at Deakin University, he went to every class. In the third trimester, as he had studied Accounting twice already, he found that the teacher taught the same things, and when in September, he needed time to find a house to live, he missed 4 lectures, but he never missed the tutorial class for Accounting. For the other 3 subjects in the trimester, he also never missed any lessons. For the total time he studied at Deakin, he only missed 4 lessons. What’s more, he finished every online test and and piece of homework, and went to every final exam.

6. The applicant stated that after he was excluded by Deakin University on 6 February 2015, he  felt very confused. He asked Deakin when he could go back again, and was not until trimester 3 in 2015. He said that he did not know what he should do in the next period but  as he wanted  to go back to Deakin University to continue his study, he just thought what he should do between 6 February 2015 and 4 November 2015, which was only 9 months. At that time, the Immigration Department did not send him any letter or email to let him know he needed to go to another school to continue his study in order to keep his visa in the future. As a result, the applicant just thought that no study at that time was allowed in Australia as Deakin University had not excluded him for a long time.  He had this view until June, when he talked to a friend and was told that he needed to go to another school in order to protect his visa. At that time, he immediately contacted with an agency and asked them to help him to enrol in another course until he could apply for Deakin University again. However, the earliest time he could go to a new school was 10 August 2015. This is not what he wanted, but he could not change this. During the time that he did not go to school, he studied the subjects at home.  The applicant stated that he did want to stay in Melbourne to finish his Masters degree, as this was the reason why he came to Australia.

7. On 5 February 2016, the applicant forwarded to the Tribunal his CoE for the Bachelor of Business course at Cambridge International College, noting that it was currently the semester break there.  He also forwarded copies of various assignments that he had undertaken while studying at Deakin University in 2013 and 2014.

8. The applicant appeared before the Tribunal on 12 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. The applicant confirmed the contents of his written statement.  In response to the Tribunal’s queries, he said that he completed a Bachelor degree in Mathematics in China and then decided to do a Masters in International Finance and Professional Accounting in Australia because he and his parents considered that it would provide a practical use for his skills and broaden his employment prospects.  He told the Tribunal that it was possible for him to have undertaken further study at China but it was hard to move into another faculty or field and he would have faced a lot of pressure to do postgraduate studies in maths and go into research in this field.  Also, an Australian qualification undertaken in English would broaden his employment prospects. 

10. The applicant said that he undertook an English course on his arrival in Australia then started the Masters degree at Deakin.  However, he found the teaching method very different from the University system in Chinese.  In his maths-related subjects, which included most of the finance-related subjects, he did well but in the first trimester, he failed 3 subjects, including Accounting.  He told the Tribunal that he had assumed he would be OK in Accounting because he thought that it would be maths-based but he found it was more like a humanities subject, and it had lots of concepts that he struggled to understand.  He undertook the subjects he failed again in his second trimester, but again failed Accounting. He received a warning letter from Deakin advising him that if he failed the subject a third time, he would be excluded.  The applicant said that he understood that he would be excluded from that subject but in actual fact the letter was saying that he would be excluded from the whole course.  He did not understand that at the time.  The applicant said that he did Accounting for the third time over the third trimester but failed again.  In response to the Tribunal’s query, the applicant said that he continued to attend his lectures and tutorials during this period but did miss 3 lectures due to he and his housemates suddenly being given notice to vacate their rental property and having to attend inspections to find a new place to live.  This happened in the month or so before his Accounting exam.  The applicant said that he calculated that his attendance was still over 80% as he missed 3 lectures out of 12 lectures and attended all 12 tutorials in this trimester.  He said that he felt OK about Accounting as he had been doing problems from past examinations and the text book, and attending tutorials. Therefore, he did not seek specific assistance from the tutors.  However, when it came to the exam, there were questions on it that he had not come across before and he failed it again.  After this, he went before the exclusions committee in February 2015 and they made a decision to exclude him from the course until November 2015.

11. The applicant said that he was depressed after this.  His main focus was to be readmitted to the course in November 2015.  He stayed at home and studied Accounting from his text books and past exams.  He spoke with other friends who had passed Accounting and got advice from them.  In addition he did a lot of study of material about employment recruitment in China that his mother had sent him.  He thought that if he familiarised himself with this now, it would assist him to go straight into employment when he returned to China after finishing his study in Australia.

12. The applicant said that he also went back to see his family in China for 20 days in July 2015.  He did not tell them what had happened as he did not want to worry them.  The time he went home was when the University break would have occurred if he had been enrolled.  The applicant said that he did not consciously think about the fact that he was not enrolled in a course during this period.  It was only when he was speaking with friends in around June 2015 that he was told that his student visa was at risk if he was not enrolled in a course.  He consulted an agent, who got him a CoE for the Bachelor of Business (Accounting) at Cambridge College, but the earliest intake for the course was August 2015.  In response to the Tribunal’s query, the applicant said that he commenced this course and was attending classes (although it was currently a semester break).  However, he said that he found the lecturers to be of poorer quality than Deakin and that he had already covered a lot of the subjects in the course while at Deakin.  When asked whether he intended to complete the Bachelor degree, the applicant said that he hoped to be readmitted to Deakin and would apply for this in the next month or so. He indicated that if he were unsuccessful in having Deakin readmit him to the Masters course, he would apply to other Universities for a Masters course and seek to obtain some credit transfers.  The applicant told the Tribunal that his aim in coming to Australia was to get a Master’s degree, not a Bachelor degree since he already had one in Mathematics.  The applicant said that he had had to work hard to complete the Bachelor of Mathematics and was equally determined to complete a Masters degree in Australia, despite his initial difficulties.  He said that he was now well aware that he needed to maintain enrolment in a registered course.  He said that this did not occur to him initially as he was excluded in February 2015 and told he could be readmitted in November 2015, in the same calendar year, so he did not think that this breached his student visa.  He was aware now of all of the conditions.

13. In response to the Tribunal’s query, the applicant said that he was not working but was focussing on his studies. His parents supported him financially, and his and their aim is that he completes his Masters degree and returns to China to find work.

14. In relation to why he had not already applied for re-admittance to Deakin, the applicant said that he approached Deakin to apply in November 2015 but was recommended to apply in March 2016, the first trimester, rather than do the third trimester of 2015 over summer. There was also some confusion over the fact that his student visa was refused, which he was not expecting.  His agent told him that he could not get a CoE from Deakin while he still held one for Cambridge International College but he said that he hoped to be released from Cambridge if he were readmitted to Deakin (or if he was accepted into a Masters program at another University).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is subclass 573. The Tribunal is satisfied that the applicant is an eligible higher degree student, based on his enrolment in the Bachelor of Business (Accounting) degree at Cambridge International College.

17. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(1A)(b) relevantly states [Tribunal’s emphasis]:

    [573.223](1A)   If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

    (a)      the applicant gives the Minister evidence that the applicant has:

    (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii)      educational qualifications required by the eligible education provider; and

    (b)      the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)      any other relevant matter; and

    (c)      the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

18. It is not disputed that the applicant’s original subclass 573 student visa (granted on 7 August 2013 and expiring on 30 August 2015) was subject to a number of conditions.  These included condition 8202, which provides as follows:

    [8202] (1)  The holder (other than the holder of a Subclass 560 (Student) visa who is a Foreign Affairs student or the holder of a Subclass 576 (Foreign Affairs or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    [8202] (2)  A holder meets the requirements of this subclause if:

    (a)      the holder is enrolled in a registered course; or

    (b)      in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full-time course of study or training.

    [8202] (3)   A holder meets the requirements of this subclause if neither of the following applies:

    (a)      the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i) section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)      standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)      the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i) section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)      standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

    …

19. The applicant did not dispute that he failed to comply with condition 8202 as he was not enrolled in a registered course between 6 February 2015 (the date of his exclusion from his course at Deakin University) and 10 August 2015 (the date of his enrolment at Cambridge International College).  The Tribunal notes that he may also be in breach of condition 8202(3) given that he was excluded from Deakin University due to his third failed attempt to pass Accounting.  The applicant has now provided to the Tribunal detailed written and oral evidence of his past study and why he was not enrolled between 6 February 2015 and 10 August 2015. At the hearing, the Tribunal found the applicant to be a sincere and credible witness who did not seek to gloss over his academic difficulties and his choices.  The Tribunal accepts that he is determined to complete his Masters course if he is granted another student visa.

20. The material difference in the evidence now before the Tribunal is that the applicant has continued to study the Bachelor of Business (Accounting) course since the delegate refused to grant him the visa and will shortly seek re-admittance to the Masters degree course in International Finance and Professional Accounting at Deakin University, for which he has successfully completed a number of subjects in 2013 and 2014. While the applicant’s failure to successfully pass Accounting at Deakin University despite 3 attempts clearly raises a concern that he may not be capable of the required academic progress for this course if he is readmitted, the Tribunal accepts and gives weight to his evidence that he has continued to study this subject even while not enrolled and that he is better prepared for a further attempt.  It also notes that there is nothing to suggest that he has not been attending and progressing satisfactorily in his course at Cambridge International College.

21. The fact that the applicant was not enrolled in a registered course in breach of condition 8202 for approximately 6 months in 2015 is also a concern.  However, in considering the question in the criterion of cl.573.223(1A)(b), it is important to recognise that the question requires a prospective consideration. The Tribunal also considers that in the case of a student visa applicant who has established a history in Australia, that history is a relevant matter to the same question, but only insofar as it informs the current circumstances of the applicant.

22. In this case, the Tribunal gives weight to the following factors:

    ·the applicant's continued studies after the delegate's refusal to grant the visa (albeit after a study gap);

    ·the fact that the applicant spent close to 1 month of the study gap period in China visiting his family in what would have been the semester break in mid-2015;

    ·the fact that the applicant has a clear plan to seek readmission to his original course at Deakin University or in the alternative, to another Masters degree;

    ·the fact that the applicant was not working during the study gap period and used this time to study Accounting on his own; and

    ·the fact that the applicant is clearly now aware of the importance of complying with all visa conditions to which a new student visa would be subject.

1. Based on its assessment of the applicant’s evidence, at the time of this decision, the Tribunal considers that the correct and preferable decision is to accept the applicant's declaration that he intends to comply with any conditions subject to which the visa is granted and, after considering all the relevant matters discussed above, to accept that he is a genuine applicant for entry and stay as a student.

2. On the basis of the above, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student within the terms of cl.573.223(1A)(b) of Schedule 2.

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

   DECISION

4. 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(1A)(b) of Schedule 2 to the Regulations.

   Alison Mercer
   Member