CHIN (Migration)

[2017] AATA 2975

CHIN (Migration) [2017] AATA 2975 (6 December 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BOON HWA CHIN

CASE NUMBER:  1514397

DIBP REFERENCE(S):  BCC2015/1744506

MEMBER:Penelope Hunter

DATE OF DECISION:  6 December 2017

DATE CORRIGENDUM

SIGNED:31 January 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

On the decision record, the date 6 December 2917 should read 6 December 2017.

Penelope Hunter
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BOON HWA CHIN

CASE NUMBER:  1514397

DIBP REFERENCE(S):  BCC2015/1744506

MEMBER:Penelope Hunter

DATE:6 December 2917

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 Vocation Education and Training Sector visa:

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

Statement made on 06 December 2017 at 4:15pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocation Education and Training Sector – Genuine student – Genuine temporary stay – Employment history and prospects – Evidence of completed studies and enrolments – English skills required for job opportunities – Changed family circumstances

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 1 Item 1222, Schedule 2 cls 570.223, 572.223

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 18 June 2015. In his application the applicant set out that he proposed to undertake study in several courses including a Certificate II, III and IV in Spoken and Written English with course dates from 31 August 2015 to 23 June 2017.

3. 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).

4. In support of his application the applicant provided evidence of Overseas Health Insurance, an employment reference, certificate of graduation from Foon Yew High School and a statement addressing the criteria for the visa. The applicant submitted that he would like to improve his English in update his job position to the next level in Malaysia and he had only qualifications from a Chinese High School in Malaysia. He claimed to have family in Malaysia and he would return because he would continue to promote his job position at the company in Malaysia that he used to work with.

5. The delegate decided to refuse to grant the visa on 19 October 2015. 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 because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay temporarily in Australia as a student. The applicant has provided to the Tribunal a copy of the decision of the delegate and relevantly the delegate based their decision on the following findings;

   i.The letter provided by the applicant from his employer Lian Hoe Trading Company did not provide sufficient information for his employment history to be assessed.

   ii.The delegate was not satisfied that the applicant had given strong reasons for his study plans to satisfy the delegate that it would assist him to obtain employment or improve his employment prospective in his home country in the future.  

   iii.The delegate was also unable to verify that the applicants wife and daughter were in Malaysia as claimed.

   iv.The applicant had also not provided any financial evidence to support his application. The delegate was not satisfied that the applicant had the funds to support himself while in Australia.

6. The applicant submitted the following additional documents to the Tribunal in anticipation of the hearing;

   i.Confirmation of Enrolment (CoE) in an IELTS Preparation course 17 April 2017 to 16 November 2017.

   ii.CoE in a Certificate IV in the Business at World College Group Pty Ltd, with course dates from 8 January 2018 to a July 2018.

   iii.CoE in a Diploma of Business at World College Group Pty Ltd, with course dates from 3 September 2018 to 23 and punched 2019.

   iv.Letter from World College dated 16 October 2017 confirming that the applicant was enrolled as a full time student.

   v.Malaysia and income tax document and translation.

   vi.Marriage certificate for the applicant and translation.

   vii.Declaration of Ngiu Huan Eng, mother of the applicant, regarding financial support for the applicant and attaching deposits in the Affin Bank Berhard.

   viii.Certificate of completion of a Certificate II in Spoken and Written English issued 6 May 2016.

   ix.Confirmation letter of employment stated to August 2008 from Lian Hoe Trading Company.

   x.Commonwealth Bank letter regarding the applicant’s account details dated 25 October 2017.

   xi.CoE in a Certificate IV in Spoken and Written English, at Hands On Computer Training International Pty Ltd, with course dates from 2 January 2017 to 3 June 2017.

   xii.CoE in a Certificate III in Spoken and Written English, at Hands On Computer Training International Pty Ltd, with course dates from 18 April 2016 2 to December 2016.

   xiii.CoE in a Certificate II in Spoken and Written English, at Hands On Computer Training International Pty Ltd, with course dates from 16 March 2016 to 18 April 2016.

   xiv.CoE in a Certificate II in Spoken and Written English, at Hands On Computer Training International Pty Ltd, with course dates from 31 August 2015 to 15 March 2016.

   xv.CoE in a Certificate II in Spoken and Written English, at Hands On Computer Training International Pty Ltd, with course dates from 31 August 2015 to 8 April 2016.

   xvi.A bank deposit stub from the National Australia Bank dated 10 June 2015

7. The representative for the applicant also provided a statement of submission which set out the following (in summary);

   i.The applicant had no hope for higher qualifications if he was to return to Malaysia. He had studied in Chinese.  His High School Certificate UEC is not recognised in Malaysia. He did not have the opportunity to attend a government college or any university in Malaysia.  Most colleges teach in Malay. Further normal colleges do not accept mature age students like the applicant.

   ii.The applicant had complied with previous visa conditions and never had any visa cancelled or considered for cancellation.

   iii.The applicant had been told by his father in the past that he would be sent overseas for an education.  However during the 1997 economic crisis his father had financial problems. The applicant came to work with his father in business and was a supervisor at San Ho Timber from 1997 to 2008.

   iv.Later he worked at a mining company, as an assistant manager with the Lian Ho Trading Company from 2008 to 2014. During that time he married and his daughter was born in 2010. However his marriage did not work out, they decided to take a break and the applicant decided to use his savings to further his study overseas. His daughter comes and visits him in Australia.

   v.He searched online about English in Australia and found an education agent in Johor, Malaysia. The applicant made one trip to Perth in December 2014 to investigate colleges. He later returned to study in Perth however his visa was refused.

   vi.The applicant had continued to study and put in effort. It was submitted this demonstrated he was a genuine student. The applicant did not have a good command of English at the time he responded to the delegate. It was difficult for him to explain how English would benefit him in future.

   vii.The applicant completed his Certificate II in Spoken and Written English and went to start his Certificate III. On July 2016 the registration of his education provider, AICT, was cancelled. The applicant continued to attend class but the education provider combined many of the English classes. Since he had paid the full fee proceeded with the Certificate IV in Spoken and Written English.

   viii.The applicant then decided to study at World College and to start his IELTS course. He is preparing to take the exam in November 2017. He has enjoyed study and a family member encouraged him to get a bachelor degree. He has decided to further his studies and enrolled in Certificate IV in Business and also a Diploma of Business. Perhaps he will complete a Bachelor of Business.

   ix.For a 40-year-old man to have excellent English skills and an Australian qualification would give him the opportunity to have a better life.

   x.He will go back to Malaysia but he finishes his education.

8. The applicant appeared before the Tribunal via video link on 30 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. At the hearing the Tribunal explored with the applicant his study history, his future study intentions and career aspirations. The Tribunal asked him to provide more detailed evidence as to the value of the course to his future. The applicant provided evidence that he had previously worked in sales with the Lian Ho Trading Company, they used to supply customers in China, but over time their market had changed to India. Communications with clients required that he have a good level of English, his limited language skills and qualifications were becoming an obstacle to his progress and promotion in his employment. The Tribunal discussed with the applicant the matters raised in the decision of the delegate. Additionally the applicant provided evidence regarding his circumstances in Malaysia and in Australia and other relevant matters.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

12. 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)     …

13. 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.

14. 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.

15. Having considered the applicant’s claims against all the factors specified in Direction 53, and taking into account relevant information, the Tribunal finds the applicant satisfies the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

16. As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Malaysia. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. It accepts the evidence that the courses he has undertaken in Australia give him better opportunities. The Tribunal accepts that he has closer family ties to Malaysia as his parents, siblings and child live there. The applicant gave evidence that his parents and daughter have travelled to Australia on two occasions to visit him. Although the applicant has left his employment with Lian Ho Trading Company, his evidence is that once he has skills and qualifications that will assist them in the Indian Market the door is open for him to return. The Tribunal views these factors as indicative of a person who is only a temporary entrant and wishes to return to their country.

17. The applicant’s academic record is indicative of a genuine student. The evidence indicates that this is his first student visa application and that since his application he has been continuously enrolled successfully completing a Certificate II and Certificate IV in Spoken and Written English. He continued to study despite the failure by his initial education provider to deliver the complete course he was enrolled in. The evidence indicates he has been achieving course progression in his studies in Australia, now being enrolled in a Certificate IV and Diploma of Business.

18. As to the other evidence, this case is difficult to assess. Of concern, is that the applicant travelled to Australia on a visitor visa, which allowed for a 3 months temporary stay, the evidence indicates the applicant has undertaken a IELTS Preparation course and has gone on to enrol in Certificate IV in Business and a Diploma of Business. These latter courses are yet to commence and will result in the applicant remaining onshore until March 2019. Subject to his results the applicant has also indicated interest in going on to undertake a bachelors degree in business. The applicant explained to the Tribunal that he initially travelled as a tourist in 2014, at that time he became aware of the possibility of studying. His marriage had just ended and he wanted to professionally and personally make some changes to his life. He investigated some study options and returned to Malaysia to discuss with his family. The applicant travelled again to Australia on a tourist visa in March 2015 as he had received advice that he could make a student visa application while in Australia and he wanted to personally obtain further information about his courses prior to making a decision. The applicant received advice that it was lawful to make an application to study onshore. The Tribunal accepts the explanation provided by the applicant that his initial travel was as a tourist, however after he came to Australia, following the end of his marriage he realised that it was time to change his career aspirations.

19. The Tribunal also accepts as credible the evidence by the applicant that he had wanted to pursue an overseas education upon completion high school, however he was required to assist his family financially. He then embarked upon a career working for his father and then in sales, but did not abandon the desire for further formal education. The applicant was persuasive in his evidence that the end of his marriage was a pivotal in his decision to return to his studies and improve his personal qualifications and career prospects. He has regular contact with his daughter and wishes to provide for her into the future. 

20. The applicant has provided consistent information about the limitations on him progressing with only a high school education in Malaysia. His Chinese education to that level created an obstacle in him accessing further education in Malaysia. This is consistent with country information.

21. As to the applicant’s immigration history, there is no evidence before the Tribunal he has applied for a permanent visa or other visa to Australia or other countries, other than applying to Australia for a student visa. There is no evidence that the applicant has not abided by the conditions of his previous visas.

22. On the basis of the applicant’s strong academic record in the last two years, this is his first student visa application, he has studied while on a bridging visa obtaining course progression, his evidence at the hearing which the Tribunal found generally credible, his explanation for his change in career intentions, the payments of fees he has made to date and his evidence that he will return home at the completion of his courses, the Tribunal has decided to give the applicant the benefit of the doubt.

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).

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 visa:

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

    Penelope Hunter
    Member