Wong (Migration)

[2018] AATA 596

Wong (Migration) [2018] AATA 596 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raymond Sie Lung Wong

CASE NUMBER:  1613463

DIBP REFERENCE(S):  BCC2016/1730220

MEMBER:Mara Moustafine

DATE:6 March 2018

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 06 March 2018 at 11:06am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training) – Change in studies – Genuine reasons for change in studies – Applicant returned to home country after previous visa expired – Genuine intention to return to home country after studies

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

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 first arrived in Australia as a student on 26 January 2009 on a TU subclass 572 Student visa. He was subsequently granted a TU 573 Student visa offshore on 15 February 2011 which was valid until 15 March 2015 and arrived in Australia on 17 February 2011 but departed on 12 August 2011. On 16 February 2016 the applicant entered Australia as the bearer of a UD 601 electronic travel authority which was valid until 16 May 2016. He applied to the Department of Immigration onshore for a TU 572 Student visa on 13 May 2016 to undertake Certificates III and IV in Commercial Cookery and a Diploma of Hospitality. The delegate decided to refuse to grant the visa on 20 July 2016.

3. 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).

4. According to the decision record, a copy of which the applicant provided to the Tribunal for the purposes of the review, 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 he was not satisfied that the applicant genuinely intended to stay temporarily in Australia. Among other things, the delegate was concerned that the applicant was granted a Higher Education Sector Student TU 573 visa under streamlined visa processing arrangements to pursue a package of courses (Diploma of Interactive Digital Media, Certificate IV in University Foundation Studies, Diploma of Arts & Creative Industries) leading to a Bachelor of Arts; but although he attended some of the classes, subsequently cancelled the courses. The delegate considered that, as the applicant had cancelled the COEs for which his Student visa was granted and applied to study significantly cheaper courses at the Vocational Education and Training level, he had failed to comply with condition 8516 of his Student visa. The delegate also questioned the value of his proposed courses to the applicant’s future career prospects in Malaysia and their relevance to his previous studies. The delegate’s view was that the substantive objective of the applicant’s study was to maintain residence in Australia.

5. The applicant applied to the Tribunal for a review of this decision on 24 August 2016. He was represented in relation to the review by his registered migration agent.

6. On 15 November 2017, the applicant’s migration agent provided to the Tribunal a submission and documents in support of his claims. In his submission the migration agent explained the circumstances surrounding the applicant’s previous studies in Australia and his withdrawal from his courses in graphic design as a result of his vision deficiencies, prompting his return to Malaysia in 2011. The applicant developed an interest in cooking after working at Republic Plaza City Club Singapore in 2014 and an assistant chef in Malaysia and started to plan his career pathway to become a professional chef.  The applicant entered Australia in February 2016 and applied for a new student visa in May 2016, enrolling in a package of courses at the ACAE. These were disrupted when the company was put into liquidation but he subsequently secured enrolment for similar courses with Stanley College.

7. Supporting documents provided to the Tribunal included the applicant’s current Confirmations of Enrolment (COEs) from Stanley College for Certificate III in Commercial Cookery (21/08/2017 to 29/12/2017), Certificate IV in Commercial Cookery (01/01/2018 to 29/06/2018) and a Diploma of Hospitality Management (02/07/2018 to 28/12/2018) created on 06/10/2017; a letter from Stanley College confirming that he was studying the Certificate III in Commercial Cookery and progressing satisfactorily and his Course Progress Tracking Record; past COEs from Australian College of Applied Education (ACAE) for Certificate III in Commercial Cookery (18/07/2016 to 30/06/2017), Certificate IV in Commercial Cookery (17/07/2017 to 15/12/2017) and a Diploma of Hospitality (29/01/2018 to 29/06/2018) created on 13/05/2016; a letter from PPB advisory dated 10 July 2017 stating that Careers Australia Group Ltd and its subsidiaries, including ACAE, had ceased operations on 26 May 2017 and all courses cancelled; a job offer from Republic Plaza City Club Singapore dated 7 July 2014; and position descriptions for various chef roles in Malaysia.

8. The applicant appeared before the Tribunal on 21 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, Mr Sing Kui Wong. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. However, the applicant gave his evidence in English.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. 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)     …

12. 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.

13. 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.

14. At the hearing, the Tribunal discussed with the applicant the reasons his Student visa had been refused in the context of the Genuine Temporary Entrant criterion, noting that the primary purpose of a Student visa was for an applicant to study and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant his circumstances in Malaysia and Australia, his immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.

15. The applicant told the Tribunal that after finishing high school, he first came to Australia in January 2009, completed ELICOS and was intending to study design and arts and subsequently applied for a 573 visa with the intention of doing an Arts degree. However, after he commenced his studies in interactive media, he realised that he had problems with colour blindness and withdrew from the courses. The applicant said he believed his visa had been refused because he forgot to cancel his visa when he discontinued his Higher Education course in 2011 and returned to Malaysia. Although he advised his college, he overlooked telling the Department.

16. The applicant said that after a few years working in the electrical industry and hospitality in Singapore and Malaysia, he decided to pursue a career in hospitality. He came to Australia on a Visitor visa in 2016 as he wanted to find the most suitable school to study cookery and hospitality, then made his Student visa application onshore. Unfortunately, after a year at ACAE, the school was closed. However, he was able to transfer to Stanley College, where he was currently in the last semester of his Certificate III in Commercial Cookery.

17. His intention was to return to Malaysia on completion of his Diploma of Hospitality and to work in a restaurant which his father was intending to set up for him. He had previously worked in restaurant in his hometown of Cebu, as well as in Singapore. He was not currently working in Australia as he wanted to concentrate on his studies and his visa did not permit it. He lived with his younger brother, who was also studying Commercial Cookery.

18. The applicant’s father, who said he had flown to Australia to be a witness for his son, gave evidence that he wanted his son to study in Australia and would support him financially in this. He said he used to have a restaurant himself but had now retired. He intended to open a restaurant for his son in Cebu once he completed his studies.

19. After the hearing the applicant provided a written undertaking that he would return to Malaysia on completion of his courses to pursue his career in hospitality and would not seek to extend his student visa to pursue a different course to an alternative career path.

20. The Tribunal found the applicant to be a credible witness, speaking openly and directly. The Tribunal accepts his explanation as to why he did not continue his studies in graphic design leading to an Arts degree, as well as his reasons for now undertaking Courses in cookery and hospitality.  The Tribunal notes that the applicant’s original enrolment in these courses at ACAE was disrupted by the closure of the school and that Stanley College, to which he transferred, has attested to his satisfactory course progress in his Certificate III in Commercial Cookery. It accepts the applicant’s evidence that, on completion of his Diploma at the end of 2018, he will return to Malaysia and pursue his career in hospitality.

21. The Tribunal accepts that the applicant was previously granted a TU 573 Student visa to undertake a package of courses leading to an Arts degree, which he failed to complete. However, it notes that the applicant did not remain in Australia when he stopped studying these courses, but returned to Malaysia in August 2011. The Tribunal accepts the applicant’s explanation that he failed to advise the Department of his intention to discontinue his studies, but notes that he did not re-enter Australia during the validity of the TU 573 visa, which expired on 15 March 2015. In the Tribunal’s view, the applicant’s application for a TU 572 Student visa to undertake studies in cookery and hospitality should be viewed as a new and separate visa application. The Tribunal does not accept the Department’s suggestion that the applicant has failed to meet condition 8516 of his previous Student visa.

22. 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).

23. 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

24. 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.

    Mara Moustafine
    Member