Duong (Migration)

[2018] AATA 779

Duong (Migration) [2018] AATA 779 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anh Hieu Duong

CASE NUMBER:  1620411

DIBP REFERENCE(S):  BCC2016/2080186

MEMBER:Warren Stooke AM

DATE:16 March 2018

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 573 Higher Education Sector visa:

·cl.573.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 16 March 2018 at 5:52pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Completed an University foundation course – Originally enrolled in a Bachelor of Environment – Changed to a business course – Strong academic results – Genuine applicant for entry and stay as a student

LEGISLATION
Migration Act 1958, ss 65, 359AA, 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 17 June 2016. The delegate decided to refuse to grant the visa on 10 November 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. cl.573.223(1)(a) of Schedule 2 to the Regulations. The delegate found that the applicant lacked progress on the chosen course and changed courses and institutions following poor performance, which indicated to the delegate that the applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 14 March 2018 to give evidence and present arguments. The Tribunal also received written submissions from the applicant’s agent.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass cl.573.223(1)(a) of Schedule 2 to the Regulations.

8. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(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)     …

9. 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.

10. 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.

11. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

12. At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate’s decision of 10 November 2016 and that he understood the content of the decision.

13. The applicant provided the Tribunal with an explanation, as to his understanding for the refusal of the visa application by the delegate and acknowledged that the reason was that the delegate did not accept that the applicant met the criteria required for the grant of a visa. He stated that the delegate believed he was not a genuine student.

14. The applicant is a 22 year old from Vietnam who arrived in Australia as a 16 year old to undertake Foundation studies before progressing to a degree course at the University of Melbourne. The applicant explained that his preference was not to study a Bachelor of Environment but he was persuaded by his parents to undertake an Environment degree course.

15. The applicant gave evidence that he had originally enrolled in a Bachelor of Environment at the University of Melbourne having completed his Foundation studies.

16. The applicant commenced studies at the University of Melbourne after completing his Foundation course and experienced significant difficulties in coping with the studies in this discipline. This, in turn, led to counselling by the university staff and eventually following an inadequate level of performance the applicant was obliged to discontinue studies in the chosen course. Despite this ruling the applicant sought to access the appeal process offered by the university and was granted another opportunity. However, the Tribunal was informed that the stress of the events surrounding performance had had a significant effect on the applicant’s focus on study and this led to withdrawal from the Bachelor of Environment and episodes of depression.

17. It was submitted by the applicant’s representative that following these events, the applicant returned to Vietnam and persuaded his parents that he was not suited to the course of study chosen and that his personal desire was to study business. The Tribunal was informed that the parents of the applicant accepted and supported this change in direction and the applicant subsequently enrolled in an Associate Degree course in Business at RMIT.

18. The applicant advised the Tribunal that he has a valid Certificate of Enrolment and that he was studying an Associate Degree in Business at RMIT. The Tribunal was also informed that the applicant intended to commence a Bachelor of Business in July 2018.

19. The applicant commenced the Associate Degree in Business on 4 July 2016 and is due for completion on 30 June 2018. A transcript of the results in this new course of study identifies a performance success rate of 5 High Distinctions, 3 Distinctions, 2 Credits and 1 Pass.

20. The applicant stated to the Tribunal that it was his objective to better himself with his academic studies and then work overseas in different countries.

21. The applicant informed the Tribunal that he had recently been approached by the RMIT faculty chair to become a voluntary mentor to international students, which he has accepted.

22. The applicant’s plan is to undertake post graduate studies once he has completed his undergraduate degree, which would be a Master of Business (International Business) at either Monash or Melbourne.

23. The applicant advised that he had returned to Vietnam once in the last three years and now that he is on a Bridging visa B he will have an entitlement to travel.

24. The applicant gave evidence to the Tribunal that he lives in Sunshine in an apartment with his brother and that he is currently being supported by his parents.

25. The applicant has worked with Hungry Jacks in the past but not since his visa issue, as he has concentrated upon his studies.

26. The applicant gave evidence to the Tribunal that he intends to return to Vietnam when he completes his studies and that he is not using the student visa to obtain residency in Australia.

27. The applicant provided evidence that he maintains family ties with his parents and sister who live in Vietnam. In this regard, the applicant’s parents own and operate a significant business that is focussed upon both the domestic and international market.

28. The applicant was invited to provide any other comment regarding matters that the Tribunal should consider in making its decision. The applicant asked that he be given a chance to complete his studies; that his parents support him in the course of study he is now pursuing and that he is a genuine student. He asserted to the Tribunal – “I want to prove I’m a good student.”

29. The representative for the applicant made a brief submission that supplemented a comprehensive written submission that was provided to the Tribunal before the hearing. In essence, the representative stated:

    a.The applicant is a genuine applicant in terms of the criteria set out in cl.573.223(1)(a);

    b.The applicant is achieving considerable success in the newly chosen course of study, which the Tribunal should consider;

    c.The Henley Project supports the focus outside of Australia;

    d.The applicant did not have local support from the family at a young age with all the support residing in Vietnam, which contributed to the early difficulties;

    e.The applicant’s objective is not to circumvent other programmes related to residency;

    f.The applicant is a genuine student and will return to Vietnam or somewhere else overseas when his studies are finished.

30. The applicant’s parents provided the following statutory declaration in support of their son:

    “After our child Hieu finished the 11^th  grade in Vietnam, we had him to study in Australia. At first, we oriented Hieu to study architecture. Hieu told us that he did not like this field but he had to study it under our pressure. Being obedient and respectful to parents, Hieu studied the field that he did not like. During the study time, although he tried all his best, the result was not good. He felt in depression for a long time. Then Hieu phoned us to ask for a permission so that he could study what he liked. I and my _wife agreed to permit him to follow his dream. After moving to the new school, Hieu has no longer been in depression. He has proved us with his high scores and proper orientation...

    We undertake to finance all his tuition fee as well as living expenses during his time of study. We undertake that the above contents are true as stated.

    We look forward to the permission by the competent authority so that Hieu could continue his study.

    We send You our sincere gratitude.”

    REASONS

31. The Tribunal is satisfied that the applicant is a genuine temporary entrant to Australia for the following reasons:

    a.The applicant came to Australia when he was 16 years old and resided here without any parental guidance at hand. As such, the Tribunal accepts that this time in the applicant’s life was both challenging and difficult and resulted in the choice of a course that was made for the wrong reasons and not on the basis of his preferred option;

    b.The Tribunal is satisfied that the applicant has demonstrated through an excellent academic performance at RMIT that he is a genuine student and achieving success;

    c.The Tribunal recognises that the applicant at 22 years of age is chronologically on par with his Australian peer group in terms of academic progress;

    d.The applicant has been selected as a voluntary mentor by the faculty at RMIT, which demonstrates the genuineness of the applicant and the esteem in which he is held;

    e.The applicant maintains significant ties in Vietnam with his family, who continue to provide both economic and emotional support. The applicant has maintained ties with his home country and returned home to obtain that parental support.

32. The Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student and that the applicant intends to stay in Australia temporarily.

33. 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.573.223(1)(a).

34. As the Tribunal has found the applicant meets the requirement of cl.573.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

35. 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 573 Higher Education Sector visa:

    ·cl.573.223(1)(a) of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member