TEH (Migration)

[2017] AATA 229

TEH (Migration) [2017] AATA 229 (7 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms POH JII TEH
Mr KOK SENG TAN

CASE NUMBER:  1517409

DIBP REFERENCE(S):  BCC2015/2769038

MEMBER:Gabrielle Cullen

DATE:7 February 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 07 February 2017 at 12:19pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine student – Excellent academic progress – Family remain in Malaysia – Employment offer in Malaysia

LEGISLATION

Migration Act 1958, s 65, 499
Migration Regulation 1994, Schedule 1, Schedule 2 cl 572.223(1)(a)

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 22 September 2015. The delegate decided to refuse to grant the visas on 30 November 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 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. Movement records indicate that the first named applicant (the applicant) initially arrived in Australia on 19 October 2012 on an ETA visa to cease on 19 January 2013. She applied for a student visa but was refused and departed Australia on 19 January 2014. She arrived in Australia on 21 May 2014 on a further ETA visa valid to 21 August 2014 and was granted a dependent student visa with her husband as the main applicant from 19 August 2014 to 23 September 2015. She departed Australia from 17 February 2015 to 8 March 2015 and applied for the current student visa on 22 September 2015. She departed from 26 May 2016 to 9 June 2016 and 19 December 2016 to 2 January 2017.

4. Certificate of Enrolments attached to the applicant’s application referred to the applicant studying a Certificate II in Customer Contact from 9 November 2015 to 3 June 2016, a Certificate III in Business from 1 August 2016 to 24 February 2017 and a Certificate IV in International Trade from 10 April 2017 to 29 September 2017. Information provided by the applicant indicates that she has successfully completed the Certificate II in Customer Contact.

5. She provided identity documentation and evidence of marriage to the second named applicant, financial documentation, evidence of health insurance and her Curriculum Vitae to the Department. This indicates she is currently working as a Warehouse Assistance since May 2015 and previously worked as a Sales Assistance and Administrative Assistant.

6. She provided a statement to the Department stating that she is undertaking the current course so she can learn to manage and run a business and so she can obtain a better job in Malaysia. She claims she wants to work in the management department in Singapore ION Orchard. She said she chose the current school as it is in the city and easy to travel to by bus. She claims she chose to study in Australia as its English speaking and she can also improve her English. She claims she wants to go to school as she never went to College or university in Malaysia. She claims she has three older sisters and a brother living in Malaysia and her parents. Her husband is with her in Australia.

7. In the present case, the delegate assessed the first named applicant (the applicant) against the criteria for a Subclass 572 visa on the basis of enrolment in a vocational education and training course. The visa was refused on 30 November 2015[1]  because the applicant did not provide the evidence required to demonstrate she was a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.

   [1] The decision was attached to the Application for review.

8. Additional documentation was provided to the Tribunal including confirmation she successfully completed the Certificate II in Customer Engagement, letter from Vesselcare dated 16 July 2016, based in Kuala Lumpa offering the applicant employment as a Sales Executive when she finishes her International Trade course in September 2017;

9. Also included was a letter from her trainer in her current course advising the applicant is a diligent student who regularly attends class and has achieved competency in all units undertaken to date. He notes the applicant is two units from completing the Certificate III and he is aware that she has paid for and intends to complete the Certificate IV. He notes he has been advised there is a potential job offer back in Malaysia which would utilise her skills she has learned in the 3 courses. He indicates it would be travesty to force the applicant to leave Australia without first finishing the courses. He fully supports her being able to remain in Australia to complete her studies.

10. The applicant also included a further submission as to the relevance of the course to her future advising she has a job in Malaysia and has studied in Australia so as to improve her English.

11. On 6 February 2017 the applicants appeared before the Tribunal by telephone to give evidence and present arguments. The applicant’s husband, the second named applicant also gave evidence. The applicant was represented in relation to the review by her registered migration agent but he did not attend the hearing.

12. The applicant indicated that after she finished her higher school she worked as a shop assistant in Singapore. She said since coming to Australia she has worked as a Warehouse Assistant. She said she has one subject to go in the Certificate III, finished the Certificate II and has paid in full the course fees for the Certificate IV.

13. As to why she is studying in Australia, she said to improve her English and so she can obtain a better job on return to Malaysia. She indicated that on return to Malaysia in July 2016 she attended a number of interviews and secured a job with Vesselcare as a Sales Executive when she completes her Certificate IV.

14. She said she had no family in Australia, and her parents and siblings are in Malaysia. She indicated she had no civil or political problems in Malaysia which would prevent her returning to Malaysia or military commitments. She said her previous student visa was refused in 2013 but this was the only time a visa had been refused. She said it was because she did not provide all the documentation requested.

15. Both the applicants said they intended to depart once the applicant completes her course. The second named applicant said her is working in Australia part-time as a barber and he is supporting his wife.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

17. 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)     …

18. 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.

19. 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.

20. For the reasons that follow the Tribunal has decided to remit the matter for reconsideration. The Tribunal found the applicant to be a convincing witness and her reasons for studying in Australia as genuine. It accepts that after completion of the Certificate IV in International Trade course she will return to Malaysia.

21. The Tribunal is satisfied that the applicant is currently studying towards the completion of a Certificate III in Business and Certificate IV in International Trade to finish in September 2017. It accepts she has completed the Certificate II course and has one subject to complete the Certificate III in Business. It accepts she has paid in full to undertake the Certificate IV in International Trade and accepts the evidence that she will complete that course. It finds this evidence indicative of a genuine student. It finds the evidence of her trainer to be persuasive including that she is a genuine student. It accepts that she has a position as a Sales Executive with Vesselcare on completion of her course in Malaysia. It finds that the course has value to her future career. The Tribunal finds the applicant’s current enrolment and future plans supportive of her claim that she sees Australia as a temporary location in which to study.

22. The Tribunal also notes she has family ties in Malaysia, although her husband is with her in Australia. It notes there is no evidence of military service commitments, or political and civil unrest which would present as a significant incentive for the applicant not to return to her home country.

23. While the Tribunal has concerns as to her previous refusal for a student visa this is just one of a range of factors to be considered. There is nothing else in the applicant’s immigration history which is indicative that the applicant does not intend genuinely to stay in Australia temporarily. While she has been in Australia on other visas she has complied with the requirements.

24. 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. While it has some concerns, as noted above, on the totality of the evidence provided accepts she intends genuinely to stay in Australia temporarily Accordingly, the applicant does meet cl.572.223(1)(a).

25. 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

26. 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.

    Gabrielle Cullen
    Member