Dupchu (Migration)

[2017] AATA 2876

Dupchu (Migration) [2017] AATA 2876 (19 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sonam Dupchu
Mrs Pema Zangmo

CASE NUMBER:  1605053

DIBP REFERENCE(S):  BCC2016/708797

MEMBER:Mara Moustafine

DATE:19 December 2017

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 572 Vocational Education and Training Sector visa:

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

Statement made on 19 December 2017 at 11:12pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector  – Genuine Temporary Entrant criterion – Unable to study further in home country – Incentive to leave Australia – Children in home country – Offer of employment overseas

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994 Schedule 1 Item 1222 Schedule 2 cls 572.223, 572.223(1)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants first arrived in Australia on 2 January 2014 on TU subclass 572 Student visas which were valid until 1 March 2016. On 19 February 2016 the first named applicant applied to the Department of Immigration for another TU 572 visa to undertake a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management. The delegate decided to refuse to grant the visas on 30 March 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. According to the decision record, a copy of which the applicant provided to the Tribunal for the purposes of the review, the delegate refused to grant the visas because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because he was not satisfied that the applicant genuinely intended to stay temporarily in Australia. Among other things, the delegate was concerned that the applicant study history indicated cancellations of a series of course enrolments and that the courses which the applicant was seeking to undertake were inconsistent with his educational background. He noted that the applicant had not studied since he graduated from high school in Bhutan in 1994 until he arrived in Australia in February 2014 and had not provided evidence that he had made a thorough investigation of study options in Bhutan.

5. The applicants applied to the Tribunal for a review of this decision on 12 April 2016. They were represented in relation to the review by their registered migration agent.

6. On 15 November 2017, the applicants’ migration agent provided to the Tribunal a submission and documents in support of the applicant’s claims, including Confirmations of Enrolment (COEs) for a Diploma of Leadership and Management (14/03/2016 to 08/09/2017) and Advanced Diploma of Leadership and Management (09/10/2017 to 05/04/2019); completion certificate and academic transcripts for a Diploma of Leadership and Management; a letter from Stanley College regarding his enrolment status; and a letter from a prospective employer in Bhutan.

7. The applicants appeared before the Tribunal by videoconference between Perth and Sydney on 22 November 2017 to give evidence and present arguments. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

10. 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)     …

11. 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.

12. 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.

13. At the hearing, the Tribunal discussed with the applicant the reasons his Student visa had been refused in the context of the Genuine Temporary Entrant criterion, noting that the primary purpose of a Student visa was for an applicant to study and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant his circumstances in Bhutan and Australia, his immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.

14. The applicant told the Tribunal that he came to study in Australia in February 2014 because he wanted to improve his knowledge to enable him to get a good job in Bhutan as he had previously failed to get a manager job due to his lack of qualifications. Although he was in his 40s, there was no age barrier for studying in Australia, as in Bhutan. He initially intended to study a Diploma and Advanced Diploma of Management. However, as his English was not sufficiently high level, he had to study English language first. He had completed Certificates III and IV in English and a Diploma in Leadership and Management in October 2017. He was now studying an Advanced Diploma in Leadership and Management and had just completed his first unit.  

15. In Bhutan he had completed Year 10 of high school and later worked in the Ministry of Communications as an administrator. He also worked in his wife’s shop after hours and had a taxi service because the government salary was not very high. He and his wife had to support her parents, as well as their two children, aged 15 and 7, who were all in Bhutan.

16. The applicant said that, on completion of his studies, he would return to Nepal to take up a job offer to work as a manager for in Zamling Enterprise, an import-export business owned by a friend, who had offered him the job in 2016 after he completed his course. Although there appeared to be some inconsistencies in documents the applicant submitted to the Department and the Tribunal regarding his future employment plans, the Tribunal is satisfied with the explanation he offered that his priority is to take up and focus on the job with Zamling Enterprise, while his wife will continue her retail business. 

17. In a discussion of their circumstances in Australia and Bhutan, the applicant told the Tribunal that he and his wife had been working as cleaners for the past 4 years, earning around $400 each per week. Previously in Bhutan he had been earning an equivalent of $140 per month. He expected to earn around $550-$600 per month when he returns to Bhutan. His role would involve As the company was importing machinery and equipment, his role would involve contact with foreign exporters. 

18. The applicant identified his firm offer of employment in a managerial role with Zamling enterprise, as well as his children in Bhutan gave him incentive to return home. He said he was prepared to give a written undertaking that once he finished his current course, neither he nor his wife would apply for another Student visa but would return to Bhutan. A statement to this effect was submitted at the end of the hearing.

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 that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.572.223(1)(a).

20. 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.

21. As the Tribunal has found that the first applicant meets the primary criteria for the visa and the second applicant has applied solely as the spouse of the first applicant, it follows that the second applicant meets the secondary criteria.

    DECISION

22. 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 572 Vocational Education and Training Sector visa:

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

    Mara Moustafine
    Member