Dema (Migration)

[2018] AATA 1666

Dema (Migration) [2018] AATA 1666 (26 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tashi Dema

CASE NUMBER:  1612537

DIBP REFERENCE(S):  BCC2016/2228007

MEMBER:Lilly Mojsin

DATE:26 April 2018

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 26 April 2018 at 4:42pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine temporary entrant – No family in Australia – Family support in studies – Quality of education in Australia – Employment prospects – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 1 Item 1222, Schedule 2 cl 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 and Border Protection 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 for the visa on 30 June 2016. The delegate decided to refuse to grant the visa on 8 August 2016.

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. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl. 572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student.

5. The applicant appeared before the Tribunal on 22 November 2017 to give evidence and present arguments.

6. The applicant was represented in relation to the review by her registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is studying a Diploma of Hospitality Management commencing on 29 January 2018 and ending on 27 July 2018.

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

9. 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)     …

10. 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.

11. 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.

12. The Tribunal has taken into account the following relevant factors as required by Direction 53 and places weight on them.

13. The applicant has she completed a Diploma of Management in 2016. She studied Certificate III in Commercial Cookery and commenced to study Certificate IV in Commercial Cookery. She is studying Diploma of Hospitality Management as her uncle suggested she take hospitality as he owns a hotel in Bhutan. That is why she is studying cookery as he has offered her a job in Bhutan. Bhutan now has become a global destination for tourism, she can see a lot of job opportunities even if she does not work with uncle as her passion is cookery she intends to work in the hospitality industry.

14. The applicant has no family in Australia, all her family are in Bhutan. She is working in Australia as an assistant domestic staff in a hospital.  After she left school in Bhutan she worked as an administrative assistant in Bhutan.

15. The applicant’s family have been full supportive and have been paying her tuition fees. She also works in Australia and supports herself.

16. The Tribunal accepts that she could not study a commercial cookery course in Bhutan, as she believes that Australia is a world education destination and an Australia certificate is recognised worldwide.

17. The applicant intends to return to Bhutan after completing her course in July 2018.

18. There is no information before the Tribunal to suggest that the applicant has an adverse immigration history.

19. 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, on balance, that the applicant intends genuinely to stay in Australia temporarily.

20. Accordingly, the applicant meets cl.572.223(1)(a).

21. 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

22. 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.

    Lilly Mojsin
    Member