Kasemkittichot (Migration)

[2018] AATA 1296

Kasemkittichot (Migration) [2018] AATA 1296 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Penika Kasemkittichot

CASE NUMBER:  1619353

DIBP REFERENCE(S):  BCC2016/1703707

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:        6 March 2018 at 2:45 pm (VIC time)

DATE OF WRITTEN RECORD:               26 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets          cl. 573.223

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Continuous enrolment in studies – Business plan – Bachelors course – Genuine Temporary Entrant

LEGISLATION
Migration Regulations 1994, Schedule 2 cl 573.223

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 October 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).

2. At the hearing on 6 March 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. When the delegate considered your case, she noted that you had studied a range of different courses. Business, Graphics, Printing, Tourism, Hospitality. You have today provided an explanation that satisfies me why you have studied those different courses and I accept that you have continuously been involved in study.

4. In the past you were asked to provide evidence of courses you had studied. The delegate claimed you had not provided that evidence and therefore said she was not happy you were a genuine student.

5. You have now provided evidence of your studies and I am satisfied that you have maintained continuous enrolment and studied without any significant gaps. The evidence presented satisfies me that you are a genuine student.

6. The delegate was not satisfied regarding your evidence of future plans. You spoke about the fact you could obtain a position with a high salary of 10,000 Baht per month, you spoke about getting a job as a chef, you spoke about starting your own catering business and you spoke about being employed in a reputable restaurant. So you spoke about a large number of things that you could do without any apparent specific direction.

7. What you have done with the substantial and detailed presentation you have made to the Tribunal is demonstrate that you have a clear plan to open a restaurant with your partner. Your plans contain obvious research and considerable detail about where it’s going to be, what it will look like and how it will work. I accept that what you have provided is a legitimate business plan.

8. You are enrolled in a serious course with a genuine provider being a Bachelor degree course at Holmesglen scheduled to run until June next year.

9. You told the Tribunal that on completion of this course it is your intention to return home to Thailand to pursue your career in hospitality. The Tribunal accepts this statement and therefore accepts that you are here on a temporary basis to study.

10. As I said to you at the start of this hearing, to satisfy the Genuine Temporary Entrant requirements, to be eligible for the grant of a student visa, an applicant must be both a genuine student and genuine temporary resident.

11. I accept that you are a genuine student and that you are intending to go home at the end of your current course and therefore satisfy the genuine temporary resident requirements.

12. The Tribunal does not grant visas. What we do is review decisions of the Department to refuse visas.

13. The department refused your visa because the delegate was not satisfied you met the Genuine Temporary Entrant requirements and therefore did not satisfy what was then clause 572.223.

14. As you are enrolled in a Bachelors course you now need to satisfy clause 573.223

15. On the evidence provided I am satisfied that you meet clause 573.223 and will therefore remit this matter to the Department with the direction that you satisfy clause 573.223.

    DECISION

16. The Tribunal remits the decision under review with the direction that the applicant meets cl.573.223.

    Tim Connellan
    Member