1602159 (Migration)

[2016] AATA 4653

1602159 (Migration) [2016] AATA 4653 (4 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nitchanan HIRANNAK

CASE NUMBER:  1602159

DIBP REFERENCE(S):  CLF2015/17498

MEMBER:Geraldine Hoeben

DATE:04/11/16

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 572 Vocational Education and Training Sector visa:

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 04 November 2016 at 3:50pm

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, who arrived in Australia on 02/01/06, applied to the Department of Immigration for the visa on 24 March 2015. The delegate decided to refuse to grant the visa on 4 February 2016. 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. 572 .223 of Schedule 2 to the Regulations because she was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 01/11/16 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

7. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(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)     …

8. 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.

9. 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.

10. The Tribunal gave a copy of the applicant’s PRISMS to her for her comment and amendment and she confirmed it’s contents as accurate.

11. The Tribunal raised with the applicant that in the some ten years she had been in Australia she had approximately a total eight months gap period and she replied that she always studies. She was direct and upfront when asked to provide reasons why she incurred this absence fros spread over ten years but she had no documents to back this up.

12. The Tribunal asked the applicant about the course she is currently studying and to provide a transcript of attendance and she handed to the Tribunal a computer generated document which indicated that she was attending the certificate IV in accounting and was currently studying certain subjects and had so far attained a certain level. The Tribunal found the download to be somewhat lacking in verification, however it accepts it is genuine.

13. The Tribunal noted the novel mix of course she chose over time, including information technology in her earlier years in Australia and business and accounting course in her later studies, the applicant explained that when she returns to Thailand she will start a business in Tourism and for that she will need business skills as well as understanding of management  principles and the ability to apply standards of proper accounting.

14. The Tribunal noted that in the ten years she had spent in Australia she only visited her home country of Thailand for about eight months and that this may indicate increasing bonds with  Australia while diminishing her ties to Thailand. She responded that she manages to keep in contact with her friends and family via the internet and she found that her continuous studies prevented her from returning for any meaningful period of time. As a result she has suspended that part of her life until her studies are completed.

15. The Tribunal raised with the applicant the issue of progress of her academic studies and it would seem she has not been able to pull herself out of the VET-type courses into the higher level courses and she replied she already had a bachelor’s degree in Thailand. She continued she had little money as she was always studying and progressing into the higher level course would demand more money which is a real impediment for her.

16. The Tribunal found the applicant to be overall a person of credit. She did not embellish her answers and the Tribunal believes she was honest and upfront in respect of the answers she gave the Tribunal.

17. The Tribunal finds that while there is an  absence from studies of about eight months since her arrival in Australia, her explanation of assuming this problem had developed over the in-between-time of courses is not unreasonable.

18. The Tribunal finds that while her progress, may not be stellar, she is continuing to study. The Tribunal finds that her explanation that it is a problem of money to pay for higher level courses which is a major impediment for her to take on these higher level courses. The Tribunal finds that while the applicant currently is unable to pay for higher level courses, it is not unreasonable to expect this may well change in her favour over time.

19. The Tribunal finds that the applicant, for the most time, continues study and that currently she is studying accountancy certificate course.

20. The Tribunal accepts that her mix of course, while novel by themselves, her strategy for how she is intending to apply her educational skills to run her tourism business in Thailand is believable.

21. The Tribunal finds that her approximately eight months of visiting Thailand in ten years might not seem much, her explanation that she has been putting it off because of her studies is not an unreasonable explanation and the Tribunal accepts it.

22. Overall the Tribunal finds that the applicant is a genuine temporary student entrant.

23. 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 does meet cl.572.223(1)(a).

    Concluding paragraphs

24. As the Tribunal has found the applicant meets the requirement of cl.572.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

25. 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:

    Geraldine Hoeben
    Member