Mai (Migration)

[2018] AATA 2188

Mai (Migration) [2018] AATA 2188 (3 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Anh Nguyet Mai

CASE NUMBER:  1701043

DIBP REFERENCE(S):  BCC2016/3209204

MEMBER:Stephen Witts

DATE:3 May 2018

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 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 03 May 2018 at 9:23am

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – Genuine applicant for entry and stay as a student – Sufficient evidence provided – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 on 10 January 2017 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 27 September 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 2 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bipul Bhattarai. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends to stay in Australia temporarily.

   Genuine applicant for entry and stay as a student (cl.500.212)

7. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

8. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian 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.

9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. At the hearing the Tribunal had a discussion with the applicant regarding the issues for consideration outlined in Ministerial Direction 69.

    Background

11. According to the applicant’s evidence she arrived in Australia on 26 February 2013 as a holder of a student visa (TU 573) which was valid until 30 September 2016. On 10 January 2017, according to the delegate’s record, the applicant was denied a student visa.

12. The applicant is currently studying for a Bachelor of Business which began on 24 July 2017 and is due for completion on 30 June 2019.

13. According to the applicant she has been enrolled in the following courses: A Bachelor of Business which was subsequently cancelled on 26 July 2013, followed by a English-language course successfully completed in October 2013, a Certificate IV in Business successfully completed in June 2014, a Diploma of Management successfully completed in July 2015, a Certificate III in Commercial Cookery successfully completed in December 2016 and a Certificate IV in Commercial Cookery successfully completed in July 17.

    Circumstances in home country

14. The applicant finished high school back in her home country in Vietnam and then proceeded to study English back at home for two years. She testified that her parents wanted her to come to Australia because of the value of the courses here and to learn how to be independent.

15. The applicant initially come to Australia to study for a Bachelor of Business but cancelled, she testified, because of confusion about her course status with the Institute itself, and, she acknowledged, because the difficulty she had at that time with her English. She did not consider undertaking study in her home country.

16. The applicant stated that she had family back in her home country which included her parents and a sister. She stated that she stayed in regular contact with her family via phone and Facebook.

17. The applicant stated that she had no issues of concern back in her home country that would make it difficult for her to return. She stated that she had no concerns of an economic, political, military, or social nature.

    Circumstances and study in Australia, and the value of the course to the applicant’s future

18. The applicant stated that she has no family members in Australia but was living in South Yarra with her boyfriend, currently on a student visa, and his family. She stated that she had been home on one occasion for four weeks since her time here.

19. The applicant stated that although not working at the moment she had been working casually for a period of time in a coffee shop. She stated her family had been assisting with her study payments.

20. The applicant stated that she acknowledged that she had been having difficulties when she first arrived in Australia with her original enrolment with her Bachelor of Business course. She acknowledged that at that time she was having difficulty with managing the requirements of the course with her lack of English language proficiency. She subsequently completed her English-language course and decided to progress her study career here in Australia by studying at certificate and diploma level. These courses included a Certificate IV in Business and a Diploma of Management. These courses were successfully completed.

21. The applicant gave evidence that she then spent some time studying for a Certificate III and then Certificate IV in Commercial Cookery because she had decided to work in the hospitality field once she went back to her home country. She indicated that she had been working part-time on a voluntary basis in a restaurant to try and learn the basic skills that she needed to open up a restaurant in her home country.

22. The applicant asserted that it had always been her plan to also develop her employability and basic skill levels for opening a hospitality business via a Bachelor of Business which was the original intention of her enrolment to do her bachelor level course in 2014. The applicant gave evidence that she was a genuine student who wished to complete a Bachelor of Business and then return to her home country to open an appropriate business. She gave evidence that her Bachelor of Business would assist her in developing and running a proper business back in her home country, and that a bachelor level course was a necessary qualification to fulfil that plan.

23. The applicant provided a statement of results from her educational institution dated 17 April 2018 which indicated that her course progression was going well with grades of pass and credit which would allow her to finish her course as planned in 2019.

24. The Tribunal finds that the applicant’s intention to complete her Bachelor of Business as she had originally intended was sincere and that she will go home, as promised, at the end of this course to pursue her career plan back in her home country.

25. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.500.212(a).

    Conclusion on cl.500.212

26. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

27. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

28. 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 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Stephen Witts
    Member