Huang (Migration)

[2018] AATA 3226

Huang (Migration) [2018] AATA 3226 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Yanhua Huang

CASE NUMBER:  1618609

HOME AFFAIRS REFERENCE:                BCC2016/2068692

MEMBER:Lilly Mojsin

DATE:12 July 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 12 July 2018 at 9:50am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Practical element of courses – English standard in Australia – Intention to return to China – Employment prospects in China – Relevance of studies – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), 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 16 June 2016. The delegate decided to refuse to grant the visa on 21 October 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 March 2018 to give evidence and present arguments.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant provided to the Tribunal the following documents:

   ·Letter of Confirmation from AICT stating the applicant was enrolled in a number of courses

   ·Personal statement by the applicant providing reasons for her continuing to pursue her education in Australia

9. At the Tribunal hearing the applicant said that she started studying in the current course in which she is enrolled on 20 September 2016 for English Listening and Writing level II. She finished that course. Asked if she is enrolled in a course she said she is in level III course scheduled to finish at the end of this month and she has competed exams on 20 March 2018. She proposes to start a course on 30 April 2018 and she is planning to return to China. She will seek deferment. She proposes to study level IV English, then a Diploma of Business and an Advanced Diploma of Business. She wants to study these courses as she has had management positions in China and she want to obtain qualifications from Australia.

10. Asked why she is going back to China shortly she stated that it is school holidays and she is going back to see her son and her family members. Her son is 8½ years old, he lives with his father and his father has custody. She is divorced. In Australia she has no family. She is not in a relationship in Australia.

11. Asked why she cannot study a management course in China, she responded that the courses in China are more text book oriented. In Australia they are more open and there is better communication and provide practice opportunity. 

12. The applicant’s witness, Mr Paco, said they are friends. His wife is Chinese. He taught English in China and is familiar with their education system.  Schools over there are not practice oriented and working English is not to same standard as in Australia.

13. After the hearing the applicant provided updated Confirmation of Enrolment to study

    ·Certificate IV in Spoken and written English- Employment commencing on 30 April 2018 and ending on 12 October 2018

    ·Diploma of Business Commencing on 12 December 2018 and Ending on 21 June 2019

    ·Advanced Diploma of Leadership and Management commencing on 19 August 2019 and ending on 28 February 2020

    REASONS AND FINDINGS

14. The issue in the present review 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)     …

15. 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;

    ·……….; 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.

16. 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.

17. The applicant is 35 years of age, divorced and has an 8 ½-year-old son. Her son and her parents live in China. The applicant is not married or in a relationship in Australia. The applicant has worked in various management roles in China and currently still has a business there, though she has little involvement in that business as it is currently run by her ex-husband. She has completed Certificate II and III English and seeks to continue her studies in English and then complete courses in management. The applicant is being financially supported by her brother in China and on completion of her studies she intends to join him in his real estate company. The Tribunal is satisfied that the applicant has incentives to return to China on completion of her course.

18. The applicant does not have military service commitments in China. There is no political or civil unrest in China. The applicant has returned to China on a number of occasions to visit her son and parents. There is no evidence of an adverse immigration history in regard to the applicant.

19. The Tribunal has considered whether the applicant has sound reasons for not undertaking the study in China. The Tribunal accept the evidence of her witness who has been a teacher and lecturer in China and who opines that the courses available in China lack practical elements required or the requisite English language knowledge.

20. The Tribunal is satisfied, on balance, that the applicant intends to return to China at the completion of her course and that her studies in Australia are relevant to her future career.

21. 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 meets cl.572.223(1)(a).

22. 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

23. 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