LEAUNRAM (Migration)

[2017] AATA 2245

LEAUNRAM (Migration) [2017] AATA 2245 (26 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Wirinya LEAUNRAM
Ms NANTHANA PHUPHANITCHAROENKUN

CASE NUMBER:  1612956

DIBP REFERENCE(S):  BCC2016/1783374

MEMBER:Penelope Hunter

DATE:26 October 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 26 October 2017 at 4:39pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Genuine temporary entrant – Incentive to return to home country - Unsatisfactory course progress – Various enrolment cancellations – Lack of valid Certificate of Enrolment – Error by education provider – Change of studies

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 572.223, Schedule 8, Condition 8202

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 applied to the Department of Immigration for the visas on 19 May 2016 in order that the first named applicant Ms Wirinya Leaunram (the applicant) could undertake study. The second named applicant Ms Nathana Phuphanitcharoenkun claimed to be a member of her family unit.

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 applicant set out in her application that she proposed to undertake a course of study in a Diploma of Leadership and Management with course dated from 29 February 2016 to 16 July 2017.

5. In response to a request for information from the delegate the applicant provided a submission that she was unaware that she had been reported by her previous education provider on 21 August 2015 for unsatisfactory course progress. She had struggled with her course at the education provider as she had difficulty with the study and communicating with staff and students. She enrolled in a different institution in a course in Management and had assumed that as a new Confirmation of Enrolment (CoE) had issued that there was no problem. The applicant further argued that if she was using the student visa program as a means of maintaining residence in Australia she would have applied for a longer course, instead she had only sought a visa for the one year duration of her course.

6. The delegate decided to refuse to grant the visas on 29 July 2016. 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 the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student. In their decision, a copy of which was submitted to the Tribunal by the applicant, the delegate set out the following issues of concern;

   i.The applicant did not hold a valid CoE, she had ceased her previous course on 16 June 2016.

   ii.The applicant had not complied with condition 8202 of her previous visa and had been reported by her education provider for not achieving satisfactory course progress.

   iii.PRISM records for the applicant set out that she had enrolled in 13 courses and more than half of these enrolments had been cancelled.

7. On 26 September 2017, the applicant submitted the following relevant documents to the Tribunal;

   i.Enrolment agreement Lloyds International College issues 29 February 2012.

   ii.CoE in a course of General English (Beginner to Advanced) and Statement of Attainment issued 15 August 2012.

   iii.CoE in a course of English for Academic Purposes and a Statement of Attainment issued 9 January 2013.

   iv.CoE in a Master of Information Technology, Offer of Admission from CQ University, letter of request for release from CQ University dated 5 February 2013, Cancellation of Program form completed by applicant (cannot meet the English entry requirement) and a letter from CQ University confirming cancellation dated 27 February 2013.

   v.Enrolment agreement issued by Cambridge College International dated 28 February 2013, CoE in a course of (General English) (Elementary to Advanced) with course dates from 11 March 2013 to 24 March 2013, CoE in a Certificate II in Information Technology with course dates from 19 April 2013 to 8 August 2013, CoE in a Diploma in Information Technology with course dates from 9 August 2013 to 15 May 2014.

   vi.Certificate of Completion of Certificate II in Information Technology awarded on 11 September 2013.

   vii.Letter from Cambridge College International dated 29 November 2013 regarding continuation of the applicant’s studies in a Diploma of Management at Cambridge College International York Street, Sydney. CoE in a Diploma of Management with course dates from 8 November 2013 to 7 August 2014.

   viii.Certificate of Completion of a Diploma of Management awarded on 7 August 2014.

   ix.Letter from Department to the applicant regarding breach of her student visa conditions, regarding breach of condition 8516 dated 15 January 2014, response from the applicant dated 23 January 2014 and email from the Department to the applicant dated 24 January 2014.

   x.Letter of Offer and Enrolment Agreement from George Brown College and a CoE in a course of General English (Beginner to Advanced) with course dates from 6 October 2014 to 26 December 2014, and CoE in a Bachelor of Interactive Media with course dates from 23 February 2015 to 16 February 2018.

   xi.CoE in an Advanced Diploma of Leadership and Management with course dates from 29 February 2016 to 16 July 2017.

   xii.Letter from George Brown College Australia dated 8 July 2016 confirming the applicant’s enrolment in an Advanced Diploma of Leadership and Management with course start date 29 February 2016.

   xiii.Statement of Attainment dated 20 June 2016 and Statement of Results (undated) in Advanced Diploma of Leadership and Management.

   xiv.Letter of offer and enrolment agreement and George Brown College in an Advanced Diploma of Leadership and Management with course dates from 29 February 2016 to 25 February 2018.

   xv.Letter from George Brown College dated 19 September 2017 confirming enrolment for the applicant in an Advanced Diploma of Leadership and Management with course dates from 29 February 2016 to 25 February 2018.

   xvi.Statement of results issued by George Brown College, Advanced Diploma of Leadership and Management.

   xvii.Copies of email communication with CQ University and George Brown College.

   xviii.Letter of submission in which the applicant stated it came as a shock to her that her CoE had been cancelled. After the visa refusal she contacted her education provider and found out that the school administration had made a mistake in their system and cancelled her enrolment instead of someone else’s. A new CoE was issued, and the applicant referred to email communication supporting. She claimed to have been studying diligently and completed most of the units since the visa refusal. The course would finish in February 2018 and she requested the opportunity to finish her course.

8. The applicants appeared before the Tribunal on 5 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

9. The Tribunal discussed with the applicant at the hearing the reasons that her student visa had been refused in the context of the decision of the delegate and the genuine temporary entrant criterion. Her circumstances in Thailand and Australia were explored, as was her study and immigration history, and other relevant matters. The applicant further discussed the cancellation of her last CoE and the steps she took to further investigate this. The applicant spoke about her past qualifications and employment and the relevance of her study to her proposed future intentions. She claimed that she intended to take up employment in a business operated by her cousin when she returned to Thailand, it was submitted that there was also the potential for employment of the secondary applicant.

10. The applicant gave evidence that she had completed a Bachelor Degree in Information Technology in Thailand. She had planned to undertake a Master of Information System at Central Queensland University. Her agent had informed her that her existing language skill together with another short course once she arrived in Australia would provide her with sufficient English language skills to undertake the study at this level. However the reality was different, although she completed her English course her skills were not sufficient to continue her enrolment in the Master of Information System. The applicant then tried another English course and study in IT at a lower level. She completed a Certificate II in Information Technology in August 2013. While at Cambridge College she then tried a Diploma of Information Technology, she claimed that the course was cancelled because it was not approved by the government and all the students in that course had to transfer to other courses. One of the suitable available courses was a Diploma  of Management and the applicant confirmed that she had completed this course and still wanted to go on to study IT. The Wentworth Institute was recommended to her and she did a preparatory English course at there and after she finished this course she studied IT. She found this course extremely difficult as it involved structures and systems and as it progressed she could not cope with the level of difficulty. The applicant realised that she would did not have the skills to continue to study IT at this level.

11. The applicant claimed that she had come to Australia to obtain skills and qualifications to assist her in her family business. The applicant submitted that her cousin had a hotel and restaurant business on Samoi Island and that her goal was to obtain the skills and training to assist in this business. For this reason she had chosen a course in Leadership and Management so that she would have skills for a managerial role in the business. The applicant claimed that although it was a family business in order to have the respect of colleagues and demonstrate that she had he skills for the role she needed the knowledge especially in marketing. The applicant conceded that her study goals had changed, she claimed that this was a consequence of her experience, growing up, realising her limitation in IT and finding another way to help her family.  

12. The applicant gave evidence that her course dates had changed as a consequence of a new CoE having to be issued by her college and that they had revised the course content. The applicant claimed that she was making satisfactory progress and relied upon the statement of attainment that she had submitted to the Tribunal. She claimed to have only 3 subjects remaining. Two would be completed at the end of the year and the last by February 2018. The applicant claimed that she had already started to send some of her belongings back to Thailand and that she had not renewed the lease at her accommodation in her name, as she did not intend to be there for the term. The secondary applicant gave evidence that she would return to Thailand with the applicant and she was also anticipating obtaining some employment in the family business at a lower level.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

15. 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)     …

16. 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.

17. 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.

18. On the material before it the Tribunal finds that the applicant satisfies the genuine temporary entrant criteria. In making this decision the Tribunal has considered the issues of concern for the delegate, particularly that the applicant’s CoE had been cancelled at the time of the delegate’s decision. The applicant has provided an explanation for this event; that it was an error by her education provider and this is supported by the email evidence that she has submitted. The applicant has continued with her proposed course, has demonstrated satisfactory progress with the Statement of Attainment that she has submitted. She has continued to maintain enrolment and is now in the final stages of completion. Although the Tribunal has some concerns about the past history of her study, overall she has a number of factors according to the relevant criterion that indicate she is a genuine student.

19. The Tribunal explored thoroughly with the applicant her study history and notes that there have been several enrolments cancelled in the past. The Tribunal accepts the explanations provided by the applicant that she could not progress to a Masters degree due to her limited English, that some of her courses were cancelled by the relevant institution and that with her higher level study of IT her existing skills were insufficient. The applicant has demonstrated in her evidence to the Tribunal the relevance of her course to her future plans for work in her family business and the skills and training that she anticipates receiving through her education to take on, and perform as expected, in a managerial role in the future. The Tribunal accepts the evidence of the applicant as to the benefit of the course to her future career plans. The Tribunal accepts that her current enrolment and future plans are supportive of her claim that she sees Australia as a temporary location in which to study and it is her intention to build her career in Thailand.

20. The Tribunal has also had regard to the applicant’s situation in her home country. She has parents, extended family and a sister. Her family has a business including a restaurant, café and kindergarten on Samoi Island. She intends to build her career in her family business. The Tribunal accepts that these ties would act as an incentive for her to return and she has travelled back to her home country since her initial arrival in 2012.

21. There is no evidence of military service commitments, or political or civil unrest, that would present a significant incentive for the applicant not to return to her home country.

22. In Australia the applicant is living in shared rented accommodation, she has commenced a relationship with the secondary applicant who is also from Thailand. The secondary applicant gave evidence that she has no commitments in Australia, is not studying, and has plans to return to Thailand with the applicant when she has finished her course. There is no evidence that the applicant or secondary applicant have any family in Australia.

23. The Tribunal accepts the evidence of the applicant that as she is at the end of her course she has commenced steps to relocate to Thailand. Although the concerns persist about her initial attempts at study, the Tribunal accepts that she has completed several courses and that the qualifications that she has obtained with have value for her future career. On balance it finds her evidence to be persuasive that she is a genuine student.

24. One the basis of the above having considered the applicant’s circumstances, her immigration history, the matters required by Ministerial Direction 53 and other matters it considers relevant, the Tribunal is satisfied that the applicant intends to stay in Australia temporarily. Accordingly the applicant does meet cl 573.223(1)(a).

25. 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.

    Secondary applicant

26. The delegate also refused visas to the secondary applicants, who are included in her application. The delegate refused the visa because it followed that the refusal of the primary applicant’s visa meant that the secondary applicants did not meet the secondary criteria.  As the Tribunal is remitting the application it is appropriate for the delegate to consider these secondary criteria on remittal.

    DECISION

27. 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.

    Penelope Hunter
    Member