Ooi (Migration)

[2017] AATA 2327

Ooi (Migration) [2017] AATA 2327 (1 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yong Chiet Ooi

CASE NUMBER:  1517600

DIBP REFERENCE(S):  bcc2015/2756484

MEMBER:Gabrielle Cullen

DATE:1 November 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 01 November 2017 at 9:52am

CATCHWORDS

Migration – Student (Temporary)(Class TU) visa – Subclass 572 Vocational Education and Training Sector – Continuously enrolled and achieved course progress – Intends genuinely to stay in Australia temporarily

LEGISLATION

Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 570.223, cl 572.223(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 21 September 2015. The delegate decided to refuse to grant the visa on 2 December 2015. 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 572 - 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. Movement records indicate that the applicant arrived in Australia on 9 July 2015 on a subclass on a subclass 601 visa valid to 9 October 2015 and applied for a student visa on 21 September 2015.

4. Information before the Tribunal including a CoE indicates the applicant is currently enrolled in a Certificate IV in Business from 28 August 2017 to 25 February 2018. The applicant was previously enrolled and successfully completed English courses from 7 December 2015 to 2 July 2017.

5. In a decision dated 2 December 2015, the delegate assessed the applicant against the criteria for a Subclass 570 visa on the basis that at that time he was enrolled in English courses. He found that the applicant did not provide the evidence required to demonstrate he is a genuine student as required by cl.570.223 of Schedule 2 to the Regulations. The delegate telephoned the applicant who said he could not talk and then hung up the phone. The delegate found that due to his response on the telephone she was not satisfied he is a genuine student.

6. The applicant has provided the following documents to the Tribunal as evidence he is a genuine applicant for entry and stay as a student.

   ·GTE statement submitted to the Department.

   ·Fee Statement from World College, his education provider, dated 1 August 2017 indicating he has paid $2,300 towards the Certificate IV in Business, being $2,000 in course fees and $300 in materials.

   ·Evidence of payment of fees towards the English courses studied continuously from 2015 to 2017.

   ·Certificates indicating completion of English courses from Beginner level to Intermediate level from 7 December 2015 to 2 July 2017. Relevant COEs were also attached.

   ·Further GTE statement.

   ·Letter from World College, dated 7 September 2016 indicating the applicant has a positive attitude in class and puts in much effort to improve his English.

   ·Applicant’s resume.

7. The applicant appeared before the Tribunal on 31 October 2017 via video to give evidence and present arguments. His representative attended the hearing. The Tribunal raised with him that the matter before it is whether he meets the requirements of cl.572.223(1)(a). It outlined the section, the relevance of Direction 53 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student. He was assisted with an interpreter in the Mandarin and English languages. He was given until 1 November 2017 to provide evidence of payment of fees towards the Certificate IV in Business.

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, a Certificate IV in Business, the relevant subclass in this case is Subclass 572.

10. 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)     …

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. For the reasons that follow the Tribunal has decided to remit the matter for reconsideration.

14. The evidence indicates that since the applicant’s application for a student visa he has continuously been enrolled, achieving course progress and progression. He has successfully completed three English courses from Beginner to Intermediate level achieving a positive reference from his education provider.

15. The evidence indicates he is now enrolled in a Certificate IV in Business and has paid $2,300 in fees. The course began on 28 August 2017 and is due to finish on 25 February 2018. At hearing he was able to provide evidence consistently with that provided by the education provider on the World College website as to courses he is studying in the Certificate IV in Business.[1]

    [1] >

    At the hearing the Tribunal asked the reasons he wished to study the Certificate Iv in Business. He indicated it was to assist his family in running their restaurant business. This is consistent with his written submissions. While lacking in extensive detail on account of the applicant’s age and that this is his first student application it accepts his reasons as credible.

16. He indicated that after completing the Certificate Iv in Business his aim is to return home. The Tribunal finds the applicant’s current enrolment and future plans supportive of his claim that he sees Australia as a temporary location in which to study.

17. The Tribunal accepts that the balance of his family resides in Malaysia. It accepts his reasons as to why he sees study in Australia as a better environment in which to improve his English and obtain well regarded qualifications. There is no adverse immigration record. There is no evidence of military service commitments or political and civil unrest in his home country which would present as a significant incentive for the applicant not to return to his home country.

18. 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).

    DECISION

19. 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.

    Gabrielle Cullen
    Member