Maimak (Migration)

[2017] AATA 1168

Maimak (Migration) [2017] AATA 1168 (20 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Pinyapat Maimak

CASE NUMBER:  1609278

DIBP REFERENCE(S):  BCC2016/1190292

MEMBER:John Cipolla

DATE:20 June 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 572 Vocational Education and Training Sector visa:

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 20 June 2017 at 10:27am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 – Genuine temporary entrant – Satisfactory academic progress – Relevance of current courses to future career aspirations – Consideration of circumstances, immigration history, and other matters

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 572.223(1)(a)

STATEMENT OF DECISION AND REASON

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 18 March 2016. The delegate decided to refuse to grant the visa on 7 June 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 the delegate could not be satisfied that the applicant was a genuine applicant for entry and stay as a student.

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

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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)     …

9. 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.

10. 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.

11. Recourse to the delegate’s decision record indicates that the applicant was granted a student visa on 23 June 2011, valid until April 2011, and arrived in Australia on 1 July 2011. The delegate had regard to the Provider Registration and International Student Management System (PRISMS) which indicated that the applicant since arriving in Australia in 2011 had completed English language studies, a Diploma of Marketing, a Certificate II in Business, a Certificate III in Business Administration and that the applicant’s current enrolment was not dissimilar to courses studied in the past. The delegate could not be satisfied that the new courses that the applicant was engaged in were relevant and beneficial to her future. The delegate was concerned about the fact that the applicant had only completed 4 of 23 courses that she had been enrolled in since she arrived in Australia in 2011.

12. The Tribunal received a number of submissions from the applicant prior to the conduct of the hearing. This evidence included a title deed for property owned by the applicant in Bangkok in Thailand. It also included a transcript of academic record for the applicant’s current course, a Diploma of Leadership and Management, and her previous course a Certificate IV in Business Administration, indicating that the applicant had been making satisfactory academic progress in these courses. The applicant also provided evidence pertaining to an attempt to be released from a Master of Business at Charles Sturt University in October 2012 which noted that the university was not willing to release the applicant from her enrolment because she failed to present evidence of compelling circumstances for such a release. The applicant also provided evidence of her current employment and evidence of savings held in the Commonwealth Bank.

13. The applicant gave evidence at hearing on 29 May 2017 in English without recourse to an interpreter. The applicant provided her name and date of birth. She advised that she first came to Australia in 2011 as a student visa holder. The applicant stated that she completed high school in Thailand followed by a Bachelor of Arts majoring in English literature, a course of 4 years duration. The applicant stated that post-study in Thailand she worked for Bangkok Airways in sales, reservations and ticketing for a period of 2 years.

14. The Tribunal noted that the applicant came to Australia as the holder of a Subclass 573 Higher Education Sector visa. The Tribunal asked the applicant what courses she had completed as the holder of this visa. The applicant stated that she completed a general English language course of 6 months duration followed by English for Academic Purposes a course of 6 months duration. The applicant then enrolled in the Masters of Business at Charles Sturt University a course of 2 years duration. The applicant advised that she only completed 9 months of the course as she was struggling with the course material and because she believed that her English language skills were not up to study at Masters level at that point. The applicant stated that she sought help from teachers at the University and from counsellors as well. The applicant advised that she sought release from the course because of the problems that she was having but that the university refused to release her. The applicant stated that she commenced her Masters course in July 2012 after completing English language studies and that she attended the course until about March or April 2013. The applicant advised that she then enrolled in a Bachelor of Business at Kingsown Institute in Sydney, a course of 2 years duration, and the applicant advised that she failed to complete this course. She advised that she commenced the course in March 2013 and finished the course in November 2013 once again she believed that her inability to make successful progress was due to her poor English language skills at the time.

15. The Tribunal asked the applicant whether she thought of returning to Thailand at this point as a result of her unsuccessful study history. The applicant stated that her family were providing financial support to her and she did not want to return to Thailand without achieving scholastically in Australia. The Tribunal asked the applicant how many courses she had completed and she advised a Diploma of Marketing, a Certificate II in Business and a Certificate III in Business Administration. She advised that she was currently studying a Diploma in Leadership and Management and hoped to follow that up with studies in a Diploma of Hospitality Management.

16. The Tribunal asked the applicant whether she had been working in Australia and she advised that she had been working in the hospitality sector for a number of years for no more than 20 hours per week.

17. The Tribunal asked the applicant about the relevance of her current courses of study to her future plans. The applicant stated that she had, as a result of working in the industry, a passion for hospitality and that she believed that the management studies that she had undertaken and the Diploma of Hospitality Management that she was hoping to take would assist her with future employment upon return to Thailand. The hearing concluded.

18. The evidence before the Tribunal indicates that the applicant arrived in Australia as the holder of a Subclass 573 student visa in 2011.  The evidence indicates that the applicant completed a number of English-language courses prior to commencing a Masters of Business at Charles Sturt University. The evidence indicates that the applicant struggled academically with this course and the applicant attributed this to her poor English language skills at the time. The evidence indicates that the applicant attempted to be released from Charles Sturt University but that the University in October 2012 refused that request.

19. The evidence indicates that the applicant has enrolled in a number of courses at Diploma and Certificate level which she failed to complete. As has been noted the evidence indicates that the applicant completed a Diploma of Marketing in 2015, a Certificate II in Business in 2015, a Certificate III in Business in 2016, a Certificate IV in Business Administration in 2016, and that she is currently studying a Diploma of Leadership and Management which she will complete in November 2017 that the applicant then hopes to complete a Diploma of Hospitality Management. Having regard to the applicant’s academic history for the purposes of the visa that she has applied for the Tribunal finds that the applicant has currently been making satisfactory academic progress and the applicant has given a plausible explanation as to the relevance of her current courses of study to her future career aspirations upon returning to Thailand.

20. 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.572.223(1)(a).

21. As the Tribunal has found the applicant meets the requirement of cl.572.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

22. 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 572 Vocational Education and Training Sector visa:

    ·cl.572.223(1)(a) of Schedule 2 to the Regulations.

    John Cipolla
    Senior Member