Tran (Migration)

[2017] AATA 2351

Tran (Migration) [2017] AATA 2351 (27 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Quynh Trang Tran
Mr Yohanes Budi Yanto

CASE NUMBER:  1613641

DIBP REFERENCE(S):  BCC2016/2211662

MEMBER:Jennifer Cripps Watts

DATE:27 October 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 visa:

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

Statement made on 27 October 2017 at 11:21am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Genuine applicant for entry and stay as a student – Genuine intention to return to home country – Change of studies for genuine reasons

LEGISLATION

Migration Act 1958, s 65, 499

Migration Regulations 1994, r 1.12, Schedule 2 cl 572.111, 572.223, 572.322

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 8 August 2016 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 for the visas on 29 June 2016. At the time of lodgement, Class TU contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which he or she is enrolled or has an offer of enrolment as his or her principal course, and the corresponding subclass for which that type of course has been specified by the Minister under r.1.40A of the Migration Regulations 1994 (the Regulations).

3. The Department’s decision to refuse the visas was made on 8 August 2016.  The applicant lodged her application for review with this Tribunal on 26 August 2016.  The matter was constituted to this member on 28 September 2017 and, on 26 October 2017 the applicants attended their hearing to give evidence and present arguments.

4. 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 Advanced Diploma of Leadership and Management [090632M]. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.572.223(1)(a) of Schedule 2 to the Regulations.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

6. The applicant is from Vietnam.  She first came to Australia to study in 2011.  She studied a foundation course and Bachelor of Arts for a year at Sydney University but then, from December 2014, undertook courses of study in hospitality, hotel management, business administration and is now about eight months away finishing her Advanced Diploma of Leadership and Management.  The course commenced on 18 July 2016 and will end on 15 July 2018.  The applicant says that upon completion of this course she will be fully equipped and qualified to return to Vietnam, with her husband (the secondary applicant), and told the Tribunal this is what she intends to do.  She said she is very excited about going back to Vietnam to open her own business in Cat Ba, which is an island with a thriving tourist industry off the coast of Hai Phong, which is where her parents and sister live. 

7. The secondary applicant first came to Australia as a student, holding a subclass 572 visa, from Indonesia, on 17 February 2013.  His first student visa ceased on 13 June 2014.  The applicants travelled overseas together in March 2016 to meet each the parents before getting married in Sydney on 15 June 2016.  They say they plan to hold traditional ceremonies in their home countries after they depart Australia following the applicant’s completion of her studies in mid-2018. 

8. In the present case, as the applicant currently is enrolled in Advanced Diploma of Leadership and Management at George Brown College in Sydney as her principal course, the subclass that may be granted is Subclass 572. The issue in the present case is whether the applicant is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters. With the exception of the student guardian visa, this is a requirement for all student visas. For Subclass 572, this requirement is contained in cl.572.223, which is extracted in the attachment to this decision.

9. The requirements of cl.572.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible vocational education and training student’ (eligible VET student) who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible VET student’ is defined in cl.572.111 to mean an applicant for a Subclass 572 visa who is enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector with an eligible education provider and, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.

10. On the evidence before the Tribunal, the applicant in this case is, and was at time of application, an eligible VET student who has a COE for each relevant course of study.  The applicant is currently enrolled in an advanced diploma course at George Brown College, which is an eligible education provider: IMMI 03208D. 

11. The Regulations require that the Minister is satisfied that the applicant is a genuine student having regard to the stated intention to comply with the applicable visa conditions. 

    Does the applicant meet the applicable evidentiary requirements?

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

13. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223(1)(a). Clause 572.223(1)(a) relevantly states that the Minister must be 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

14. The Tribunal must also have regard to Direction No.53 when assessing the genuine temporary entrant criterion, made under s.499 of the Act. The matters in the Direction include:

    a.The applicant’s circumstances in her own country;

    b.The value of the course of study to the applicant’s future;

    c.The applicant immigration history;

    d.And any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either favourable or unfavourable to the applicant.

15. The applicant provided her own written statement, dated 19 October 2017, together with other documents in support, including:

    a.Certificate of land ownership for land on Cat Ba Island owned by the applicant’s father, Tran Duc Viet, that the applicant says she intends to build her restaurant on when she returns after her course finishes in July 2018.  This appears to show that the land was bought in 2010;

    b.Certificate of land ownership in the name of the applicant’s mother, Tran Thi Bich Thuy in Hai Phong;

    c.Tickets for travel by ferry from Hai Phong to the Island when the applicants were in Vietnam in March 2016;

    d.The applicant’s confirmation of Enrolment at George Brown College from 18/07/2016 to 15/07/2018;

    e.Statement of Attainment, George Brown College, for seven subjects, dated 17 October 2017, indicating she is progressing successfully through the course;

    f.The applicant’s birth certificate;

    g.Academic records and enrolments for earlier years at TAFE and the University of Sydney.

16. In her written statement the applicant provided a very detailed background of her courses of study, the reasons why she has chosen the study she has and her plans for the future.  At the hearing, the Tribunal considered her to be a credible witness who gave cogent evidence.

17. The Tribunal is satisfied, on the evidence, that the applicant genuinely intends to return to Vietnam after her current course of study finishes in mid-2018, to start her own business on Cat Ba Island.  She has provided documentary evidence that addresses the matters in Direction No. 53.

18. The circumstances in the applicant’s own country, briefly, are that her parents live there with the applicant’s 15 year old sister.  Her parents own land in Vietnam.  The applicant’s mother has visited Australia twice while the applicant was studying here.  On one of those occasions, the applicant’s younger sister came as well.  The land owned in her father’s name is on Cat Ba Island where he has worked for many years (about an hour and a half from Hai Phong by ferry) and is said to be the land the applicants are planning to build a restaurant on. 

19. The applicant has been working at Burgers Anonymous in Darlinghurst and Clemton Park for the last two years to gain work experience in her chosen field, that is, restaurant management.  The secondary applicant works as a cook for an Italian restaurant and the applicants plan for him to be the cook in their restaurant on Cat Ba Island.  The applicant said she will be front of house and he will be back of house, that is, doing the cooking.  The applicant gave detailed information about the type of restaurant she wants to open serving western food.  She said that in Cat Ba, which attracts a lot of tourists, with tourist numbers increasing, she has identified an opportunity to provide a dining experience that is not currently available, including pizzas and pasta.

20. The Tribunal has considered the evidence and is satisfied that the applicant changed courses of study for genuine reasons.  She has, on the evidence, been compliant with her visas at all times. 

21. Given these findings, the applicant meets the evidentiary requirements in cl.572.223(1A)(a) and the Tribunal remits the matter for reconsideration and the Tribunal remits the matter for reconsideration.

    Member of the Family Unit – Secondary Visa Applicant

22. The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria which requires that they are members of the family unit of a person who satisfies the primary criteria: relevantly, cl.572.223.

23. Member of the family unit is defined in r.1.12 of the Regulations and includes spouses, which is the relevant consideration in this matter. The Tribunal accepts that the primary applicant satisfies the primary criteria. On the basis of the findings made in favour of the primary applicant meeting the primary criteria, the secondary applicant, her spouse, meets cl.572.322 because he is a member of the family unit and made a combined application with a person who satisfies the primary criteria.

24. Given the findings above, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visa.

    DECISION

25. 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 visa:

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

    Jennifer Cripps Watts

    
    

    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    572.223(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)the applicant meets the requirements of subclause (1A) or (2).

    (1A)If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:

    (a)the applicant gives the Minister evidence that the applicant has:

    (i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii)educational qualifications required by the eligible education provider; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.

    (2)If subclause (1A) does not apply:

    (a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.