Dang (Migration)
[2019] AATA 102
•21 January 2019
Dang (Migration) [2019] AATA 102 (21 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Ngoc Vuong Dang
CASE NUMBER: 1701251
DIBP REFERENCE(S): BCC2016/2228365
MEMBER:Justin Meyer
DATE:21 January 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 21 January 2019 at 3:09pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 570 (Independent ELCOS Sector) – genuine temporary entrant criteria – course changes – lack of academic progress – additional study not necessary to achieve business goals – use of visa program to extend stay – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 570.223
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 30 June 2016. The delegate decided to refuse to grant the visa on 18 January 2017. 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).
The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.570.223(1)(a) of Schedule 2 to the Regulations because given a lack of academic progress, the study history, the potential circumstances in Australia, the immigration history and the lack of value of the courses to the applicant’s future, they found that the applicant was using the student visa program to circumvent permanent migration programs. The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student and that he intended to stay in Australia temporarily.
The applicant appeared before the Tribunal on 2 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 570.
The issue in the present case is whether the applicant meets the time of decision criterion in cl.570.223. Clause 570.223(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) …
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.
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.
Subclass 580
Subclass 580 visa is for student guardians; where it is a requirement that the person will accompany a relative to or in Australia who is a student, and in order to make a valid application for a Subclass 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1). On the evidence it was not and therefore it appeared the application was not a valid application for a Subclass 580 visa.
There is no evidence of a Subclass 580 visa being sought, and the application appeared not to be a valid application for that subclass in any event, and the tribunal so finds.
For the remainder of this decision, a reference to subclasses or all subclasses of the Class TU visa does not include a reference to Subclass 580.
Genuine Temporary Entrant
A major issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223.
At hearing, the applicant was:
a.Given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;
b.Informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;
c.Informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;
d.Given an overview of the considerations laid out in Direction No.53 as summarised above;
e.Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the tribunal hearing;
f.Informed that all subclasses of the Class TU visa have equivalent ‘genuineness’ criteria, and that if the criterion was not met, it would likely not be met for each of those subclasses.
The tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.
Findings
The applicant is a national of Vietnam. He came to Australia in 2013. He completed a Bachelor of Business Administration in Vietnam. His parents are employed in business in Vietnam trading precious stones, golden motorbikes. His parents separated some time ago but since reunited. They were separated for four to five months. They operated family business.
The applicant said he came to Australia in January 2013 to pursue education in business, particularly a Master’s course at Swinburne University. He wanted to come because the educational environment was better in Australia. His level of English in 2013 was “not very good”. He did not however complete his English course when he arrived in Australia, which he said was because he did not have enough information and because family members were not living with him in Australia. He was living with friends. Even though he socialised his level of English was limited. In all of his difficulties he was introduced to an agent who told him to enrol in another course. He did not pursue his course at Swinburne University. He then transitioned to studies in English and then retail baking and advanced baking.
The applicant was queried about why he pursued business studies in the first place to which he replied it was to assist his family. He was asked why he could not assist them with a Bachelor of Business Administration degree. He said that it was intended that the business would expand and his Master’s degree would help that.
The applicant was queried about the significant change to baking courses. He said that the potential of baking businesses is great. He had consulted his family about this change. He added that his family could expand into the baking business and gave approval. This is even though the family has no experience in baking. The applicant said that “exploration and research had been done into baking in Vietnam.” The applicant was unclear on whose idea it was to study baking but he said that he did ask his family. The Tribunal had difficulty establishing the link between his family’s previous businesses in gold and precious stones and motorcycles to baking. The applicant said that discussions had taken place with another business partner and named an individual. The applicant was asked what would he do when he completed his diploma to which she replied that he would complete an Advanced Diploma of Hospitality.
The applicant asked why an advanced diploma was necessary and why he could not proceed with his plan with his diplomas in baking. He said that he required more skills in administration. It was pointed out to the applicant that people operate baking businesses in Australia, and advanced economy country, with little more than a trade qualification. He was asked why he would be different in a developing country such as Vietnam. He said that the family had “big dreams” and that skills and ability in administration were needed.
The applicant indicated that various cancellations in his student courses were not a case of him not sticking with matters but instead being with an education provider that was substandard and was subsequently deregistered. The Tribunal accepts this explanation after examining the circumstances.
The applicant was asked what his detailed plans were if he got his advanced diploma in hospitality management. He said that he could come back to his country and expand the bakery business, eventually going into the US and Europe.
The Tribunal was puzzled as to why his family would go into a bakery business with no experience whatsoever, to which he replied that they would once he had received his diploma. He said that the bakery industry is potentially big and his business would be in his home area of Ha Thinh.
He was asked whether it would be an existing that business or starting from scratch. He said that he would first buy an existing business and keep the staff there. He said he could create his own brand name after completing his diploma and guarantee manufacturing quality. He added that he would be involved in the manufacturing process and train his staff.
The applicant was asked about regular contact with his family, to which he replied that he spoke to them several times a week. He had only visited them once though - in 2018 - and this was throughout his entire period in Australia.
The applicant was vague on how much his family had set aside to establish the business.
When it was put that the bakery industry was not a new thing in Vietnam, he said that it was generally manual and that he would use technology from Australia.
He had had a period of non-study in 2014 but he explained this because of problems with the educational provider which I accept.
On balance the Tribunal is not satisfied that the applicant is a genuine temporary entrant. The applicant may well have struggled with English and may well have found business management to be a field which he no longer wish to study. However, his plans for his future, although rudimentary, could be satisfied with the present level of education (ie on the date of his completion of his baker qualification in March 2018). He could have departed then to fulfil his dream and goals. The applicant is 27 years old. He holds a business administration degree. He has a family who are experienced in business. He held a qualification in baking. He knows how to be a baker.
The Tribunal accepts that he wants to use more automated and technology-related processes in a business in Vietnam. However the Tribunal does not view it as necessary for the applicant to have a Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management to achieve this goal.
The Tribunal finds that with family financial assistance and business know-how, combined with a baking qualification, the applicant could set up a baking business. The Tribunal considers that the applicant could set up a baking business theoretically in Australia and that the position would not be different in Vietnam.
The Tribunal is considered the family relationships of the applicant, and considers the applicant to be in close financial and personal relationship with his family.
The Tribunal gives regard to the applicant’s lack of family in Australia and this weighs in his favour. The Tribunal is given consideration to the potential circumstances in his home country and considers these to be beneficial to him in terms of family and business and money arrangements. This also weighs in his favour.
The Tribunal has no concerns about the immigration history of the applicant which also weighs in his favour.
However the applicant has incentives to return to Vietnam and can fulfil his goals now but has not taken up that opportunity. The conclusion that the Tribunal draws is that the opportunity is not taken up because the applicant prefers to live in Australia. The Tribunal bears in mind that the applicant has been in Australia some six years and has a legitimate set of goals for his resumed life in Vietnam but could not articulate why present and future courses detain him further in Australia. He had a business administration degree and by his own admission will ‘start small’ in Vietnam. Hospitality management was described in vague and generic terms when it came to articulating their value adding skills. The Tribunal still has no insight into these courses’ role as applicable to the planned business of the applicant.
On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.570.223(1)(a).
The Tribunal has found the applicant does not meet an essential requirement of cl.570.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Justin Meyer
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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