Bidynska (Migration)

[2018] AATA 4566

Bidynska (Migration) [2018] AATA 4566 (27 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Justyna Natalia Bidynska
Mr Gurdil Preet Singh

CASE NUMBER:  1709702

HOME AFFAIRS REFERENCE(S):           BCC2016/4319911

MEMBER:Gabrielle Cullen

DATE:27 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 27 August 2018 at 2:55pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – satisfactory current course progress – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 and Border Protection on 13 April 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 December 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The first named applicant (the applicant) arrived in Australia on 4 August 2012 on a subclass 572 visa valid to 30 August 2013. She was granted further subclass 573 visas to 21 December 2016. She applied for the visa to which this application relates on 21 December 2016.

4. Certificate of Enrolments attached to the applicant’s current application refer to the applicant studying an IETS course and then a Master of Professional Accounting from 20 March 2017 to 24 February 2018. The CoE for this course has since been extended to 20 October 2018.

5. The evidence at the time of this decision, from the applicant and the Department decision indicates the following study record prior to her application.

   ·Advanced Diploma of Management from 15 October 2015 to 30 June 2013– successfully completed.

   ·Three IELTS Preparation courses in August/ September 2012, September 2013 and Januarys 2017.

   ·Master of Professional Accounting at CQ University from 28 October 2013 to October 2016. The academic record submitted indicates she completed 6 courses. She failed Advanced Corporate Accounting on three occasions and failed all subjects attempted in Term 1 and 2 in 2016.

   ·Master of Professional Accounting at Kaplan Business School from 20 March 2017. A letter from the school dated 1 August 2018 and a COE indicate she is expected to complete the course in October 2018. The academic record submitted indicates she has completed 8/12 units towards achieving the course. She has submitted a receipt dated 9 August 2018 showing she is enrolled and paid for three further subjects to be undertaken at Kaplan with a total value of $8,970 and is enrolled and paid for a subject at Kings Own Institute which commenced on 9 July 2018.[1] A Financial Statement from Kaplan School shows that from 20 December 2016 to 25 July 2018 she has paid $39,530 towards the course.

   [1] Folios 49 to 59 of the Tribunal file.

6. To the Department she provided evidence of the following:

   ·Obtaining a Bachelor of Tourism in Poland.

   ·Note from the student counsellor dated 21 July 2016 as to personal difficulties she was facing at the time which was affecting her studies and ability to make decisions. It indicates she withdrew without academic and financial penalty in Term 1, 2016.

   ·Letter from her parents as to fully supporting their daughter and the second named applicant and being aware of the problems she faced which affected her studies.

   ·Letter of support from the second named applicant.

   ·Statement to the Department as to the genuine nature of her relationship with the second named applicant and explaining her slow course progress. She states that it is her plan to graduate to become an accountant. As to her slow course progress she explains her nephew had leukaemia in 2015 and this put her under much stress and that led to her failing her exams, she had difficulties as to the study approach in Australia and in 2016 she had difficulties with her relationship as well as being stressed and depressed.

   ·On completion of her studies, she and the second named applicant will marry and return to Europe, most likely to Great Britain where she will need good English and accounting understanding in a commonwealth country. She claims she cannot imagine a life away from her sister and parents.

   ·She is working in the financial department of MY Sale Group and the company has offices in the UK.

7. The delegate decided to refuse to grant the visas on 13 April 2017. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that she is not a genuine applicant for entry and stay as a student. The delegate was concerned that she had been enrolled in a course for four years that takes 2 years to complete.

8. On 4 May 2017 the applicants lodged an appeal to the Tribunal and attached the decision of the Department.

9. On 16 July 2018 the Tribunal wrote to the applicants and invited them to attend a hearing on 13 August 2018. The letter, among other matters, requested the applicant provide a current COE and documents that show her past studies in Australia. It noted the Tribunal will assess whether she intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked her to provide a written statement addressing this issue by referring to Direction 69, which was attached.

10. The applicant provided information as to her current course progress with Kaplan Business School and previously with CQ University and fees paid. The evidence from the education provider indicates she will complete the Master of Professional Accounting on 20 October 2018. She has passed 8/12 subjects and is enrolled in the four subjects to complete the course by October 2018.

11. The applicants appeared before the Tribunal on 13 August 2018 to give evidence and present arguments.

12. The Tribunal questioned the applicant on the length of time it had taken her to complete the Master of Professional Accounting. She said she found the study method hard and different to what she encountered in her home country. She said she failed to request help on time and then contacted the University and was assisted by weekly calls from the counsellor in 2015. She said she talked to her about stress and management. She referred to failing Financial Accounting repeatedly at CQ University. She said she had now completed 8/12 subjects and has enrolled in the 4 subjects which she will finish this semester. She was able to provide knowledge of her current course consistent with independent information.

13. She said overall at CQ University and Kaplan she has in spent over $90,000. She said she wants to finish her studies and either return to her home or Great Britain/another country in Europe. She talked of obtaining her accountants practising certificate.

14. The Tribunal raised with her the information in the non-disclosure certificate disclosed and she said it is not true. She said in 2015 they separated for 3 months but came back together.

15. She said her parents are in Poland and sister in Norway. She said there were no military commitments or civil and political issues which would act as a disincentive for her to return to her home country.

16. She said she is currently working in finance and at a restaurant.

17. She said she plans to return home to do her CPA or go to Great Britain or another country in Europe. She said it is too expensive in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets cl.500.212.

19. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

20. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian 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.

21. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

22. For the reasons that follow the Tribunal has decided to remit the matter for reconsideration.

23. This is a difficult case to assess. The applicant’s past study history and slow rate of course progress is of concern. In particular she has been studying to achieve a Master of Professional Accounting for nearly 5 years. It notes she failed a subject repeatedly when enrolled previously at CQ University and her enrolment was cancelled for unsatisfactory course progress. In this regard, the Tribunal accepts she faced the difficulties she claims which led her to fail the subjects. It notes that since her change to Kaplan she has made steady course progress.

24. The Tribunal views as indicative of a genuine student her overall study record, completing 8/12 subjects (75% of the course) as at the time of this decision, being enrolled in 4 subjects to complete the degree in October 2018. It notes she has paid all the fees towards the course including the four subjects she is currently enrolled in. In total she has paid since December 2016 $39,530 towards the course. It notes she was able to provide detailed knowledge as to the current course consistent with information provided by the education provider[2].

    [2] >

    The Tribunal is satisfied that despite her initial difficulties, the applicant is committed to study in Australia so she can improve her employment and career opportunities when she returns to Poland or another EU country.

25. The Tribunal finds the reasons as to why she wishes to continue to study the course she is enrolled in as credible. It notes she is currently working in the financial area in Australia.

26. The Tribunal finds the applicant’s current enrolment and future plans supportive of her claim that she sees Australia as a temporary location in which to study. She provided evidence that she will depart Australia on completion of the Master’s course in October 2018.

27. The Tribunal accepts that the balance of her family resides in Poland. While her de facto partner is with her in Australia he is also on a temporary visa and it is her evidence he will depart with her after she completes the current Master’s course in October 2018.

28. There is no adverse immigration record other than her enrolment being cancelled for unsatisfactory course progress due to the failure of a subject repeatedly which the Tribunal has addressed above. There is no evidence of military service commitments or political and civil unrest In Poland which would present as a significant incentive for the applicant not to return to her home country.

29. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

30. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

31. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212(a) of Schedule 2 to the Regulations.