1517357 (Migration) - [2016] AATA 3467

1517357 (Migration) [2016] AATA 3467 (3 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Yidi Gu
CASE NUMBER:  1517357
DIBP REFERENCE(S):  BCC2015/2489880
MEMBER:Alison Mercer
DATE:3 March 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 572 Vocational Education and Training Sector visa:
·cl.572.227 of Schedule 2 to the Regulations.

Statement made on 03 March 2016 at 12:51pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 November 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 26 August 2015. The delegate refused to grant the visa on the basis that The delegate refused to grant the visa on the basis that the delegate did not consider the applicant had demonstrated exceptional reasons for the grant of the student visa as required by cl.572.227 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate noted that the applicant had completed a Master of Communications degree while the holder of a subclass 573 (Higher Education Sector) student visa and had then been granted a subclass 600 (Visitor) visa before applying for the current subclass 572 (Vocational Education and Training Sector) student visa. The delegate further noted that the applicant wanted to undertake a Diploma of Interpreting and an Advanced Diploma of Translating as she considered it would enhance her employment prospects in the People’s Republic of China and had been advised that it would be harder for her to apply to do this from China. The delegate did not consider this to be an exceptional reason for the grant of the visa, having regard to examples given in the Department’s policy guidelines.
The Tribunal received a review application from the applicant on 16 December 2015. It was accompanied by an authority by which she appointed a registered migration agent, Mr Michael Wong, to be her representative and authorised recipient for correspondence.
The applicant appeared before the Tribunal on 12 August 2015 to give evidence and present arguments. Her agent made written and oral legal submissions. The Tribunal was assisted by the services of an interpreter in the English and Mandarin languages.
In summary, the applicant’s agent submitted that the Department’s Procedures Advice Manual (PAM3) (paragraph 90.1) provided that exceptional reasons existed if the applicant in question previously held a student visa, and while still in Australia, was granted a class of ‘temporary residence’ visa listed in cl.572.211(2) and now wished to change back from ‘temporary residence’ status to a student visa to undertake further study. He submitted that the applicant’s subclass 573 student visa had been valid until 15 March 2015. On 11 March 2015, the applicant applied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 1517357 (Migration) [2016] AATA 3467
Case: [2016] AATA 3467
Decision Date: 3 March 2016

CaseChat Overview and Summary

The Tribunal considered an application for a Student (Temporary) (Class TU) visa by an applicant from a non-English speaking background. The dispute centred on whether the applicant met the necessary criteria for a Subclass 572 Vocational Education and Training Sector visa, specifically clause 572.227 of Schedule 2 to the Migration Regulations. The matter was heard and determined by the Migration Review Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements set out in clause 572.227, which pertains to the applicant's intention to undertake a course of study and the capacity to do so. This included assessing the applicant's English language proficiency, financial capacity, and health insurance arrangements. The Tribunal had to determine if the applicant's submissions and evidence were sufficient to meet these criteria.

In reaching its decision, the Tribunal found that the applicant provided adequate evidence to demonstrate compliance with the English language requirement. It was satisfied that the applicant's English proficiency was sufficient to undertake the proposed course. Additionally, the Tribunal concluded that the applicant's financial capacity and health insurance arrangements were in order. Consequently, the Tribunal determined that the applicant met the criteria set out in clause 572.227.

The Tribunal remitted the application for reconsideration, directing that the applicant meets the specified criteria for a Subclass 572 Vocational Education and Training Sector visa. This decision underscores the importance of thorough evidence in demonstrating compliance with visa requirements, particularly concerning language proficiency, financial capacity, and health insurance.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On that basis, the Tribunal finds that the applicant satisfies cl.572.227 of Schedule 2 to the Regulations.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 572 Vocational Education and Training Sector visa:·cl.572.227 of Schedule 2 to the Regulations.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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