Le (Migration)

[2017] AATA 939

Le (Migration) [2017] AATA 939 (29 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hanh Linh Le

CASE NUMBER:  1608560

DIBP REFERENCE(S):  BCC2016/950896

MEMBER:Wendy Banfield

DATE:29 May 2017

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 573 Higher Education Sector visa:

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

Statement made on 29 May 2017 at 3:38pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – Genuine temporary stay – Gap in studies – Family financial difficulties – Part-time work to pay for tuition – Overall progress in academic career

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulation 1994, Schedule 1, Schedule 2, cl 573.223(1)(a)

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 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 to the Department of Immigration for the visa on 7 March 2016. The delegate decided to refuse to grant the visa on 25 May 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.572.223 of Schedule 2 to the Regulations because after considering the applicant’s circumstances, they were not satisfied the applicant intends genuinely to stay temporarily in Australia. The Department considered the applicant’s potential circumstances in Australia and her current studies. The Department was not satisfied the applicant demonstrated how her plans in Australia will improve her employment prospects in her home country in future.

4. The applicant appeared before the Tribunal on 29 May 2017 to give evidence and present arguments. 

   The hearing

5. The applicant first came to Australia in 2006 to undertake her Year 11 and Year 12 high school years. She is enrolled in and is currently studying a Bachelor of Business course that commenced in February 2016 and finishes in December 2018. The applicant’s parents had a business in Vietnam which according to the applicant, has since ceased which caused difficulties for her financially.  She acknowledged that she did not study for a period for this reason but claimed that when she went back to take up her course in Human Resources, the enrolment had been cancelled.

6. The Tribunal expressed concern the applicant did not seek a deferment of her studies due to her parents’ difficulties, as stated by the Department in its decision record. The applicant agreed she should have done so but claimed that decided to find part-time work so she could pay for her own tuition. She also stated she did not have much work experience at the time which caused further difficulty. The applicant also declared she had some health concerns at this time, for which she provided documentary evidence.

7. The applicant claims she intends to return to Vietnam after her studies and will be able to find a job in business due to her qualifications in Australia and will also have the advantage of competency in English. The applicant has her parents and a younger brother in Vietnam and a cousin in Australia. She has been assisted with accommodation by her cousin while her parents were going through financial difficulties.

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 573.

10. 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)    …

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. The Tribunal considered the applicant’s circumstances in Vietnam, her potential circumstances in Australia and her immigration history. She is currently half way through a Bachelor of Business course and has studied in somewhat related areas in the past. The applicant acknowledges her period of not studying and provided an explanation for it. While the Tribunal had some concerns about the applicant’s length of stay in Australia, and her break in studies which suggested she was not a genuine student, the Tribunal is satisfied the applicant is currently studying and has made overall progress in her academic career. Such qualifications will no doubt benefit her when she returns to Vietnam and on balance; the Tribunal is of the view she should be permitted to complete her current course of study.

14. 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).

15. 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

16. 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.

    Wendy Banfield
    Member