Liu (Migration)

[2018] AATA 5705

Liu (Migration) [2018] AATA 5705 (13 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Cong Liu

CASE NUMBER:  1612213

DIBP REFERENCE(S):  BCC2016/608629

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          13 December 2018 at 3:10 pm (VIC time)

DATE OF WRITTEN RECORD:                2 January 2019

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations.

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector visa) – genuine temporary entrant criterion – satisfactory academic results– decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
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 20 July 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under the Migration Act 1958 (the Act).

2. At the hearing on 13 December 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. MEMBER:  To be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the Regulations. 

4. You applied for a student visa on 11 February 2016. Your application was refused on 20 July 2016 because having considered your circumstances the delegate was not satisfied that you were a genuine temporary entrant and therefore found that you did not satisfy clause 573.223.

5. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.  This is the second hearing of this matter.  You appeared before this Tribunal on 16 January 2018 however no decision was made following that hearing, so you have been invited to this hearing today, so that you can present evidence and arguments of the issues arising in your case and a decision can be made that reflects the current circumstances.

6. To satisfy clause 573.223 an applicant must be both a genuine student and a genuine temporary entrant. As is explained in the primary decision when considering if an applicant is a genuine temporary entrant it is necessary to have regard to what is known as Ministerial Direction number 53 and the issues in that direction.

7. They were detailed in your primary decision and they include

   ·     your circumstances,

   ·     the value of your courses to your future,

   ·     your immigration history,

   ·     your incentive to stay in Australia or return home,

   ·     if you are using the student visa program to maintain residence in Australia, and

   ·     any other relevant matters.

8. It is not intended as a checklist but as a guide for decision makers in considering an applicant's circumstances and weighing up on the whole whether or not they satisfy the genuine temporary entrant requirements.

9. The role of the Tribunal, as I said, is to take a fresh look at your application, consider your circumstances, the issues in Direction No. 53 and be satisfied you are a genuine student who intends to stay in Australia temporarily.

10. Ms Liu, as I am sure you are aware from our discussions, I have grave reservations about you being a genuine temporary entrant.  I have real concerns about the fact that you have provided conflicting evidence on a number of issues, particularly to do with dates and when things happened.  And I look at someone who has taken eight years to do a four-year undergraduate degree and I ask the question Is this a genuine student?

11. When I look for things in your favour, I note that you enrolled and studied fulltime at quality education providers.  Firstly, when you attended three years at Monash University, which is a quality, expensive university.  Your academic results were poor.  What I see here very regularly is that when students fail often opt to go to very second class education providers and do much less challenging courses.  You did not do that.  You stayed at Monash university studying the same course.  And I accept that your results in 2016 and 2017 certainly were vastly improved and were the result of you no doubt working hard.

12. I live with this concern of the mishmash of stories that I am not all comfortable satisfactorily explains 2012 and 2013.  However, what you have also done is you have enrolled in another university, perhaps not at quite the same level, but a recognised university nonetheless to study a Masters course that completes in December 2020, two years from now.  Once again it is a course of significant fees and you tell me that when you complete that course it is your intention to return home.

13. I accept that your studies over the last couple of years indicate your results are better than satisfactory and you have this offer that you intend to accept and you will study that course for a couple of years and when you complete it you will go home.  I accept that is a statement of truth and therefore I accept that you are a temporary student.

14. On the basis of those things it is my intention to remit this matter to the department with the instruction that you do satisfy clause 573.223.

    DECISION

15. 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 of Schedule 2 to the Regulations.

    Tim Connellan
    Member