Dang (Migration)

[2018] AATA 850

Dang (Migration) [2018] AATA 850 (13 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thanh Dat Dang

CASE NUMBER:  1614091

DIBP REFERENCE(S):  BCC2016/2144152

MEMBER:David Barker

DATE:13 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 13 February 2018 at 9:07am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Lack of academic progress – Lower level of academic study – Specificity of future employment – Familial ties in Australia – Stable employment

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 1 Item 1222, Schedule 2 cl 572.223

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 23 June 2016. The delegate decided to refuse to grant the visa on 15 August 2016. 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. 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 they were not satisfied that the applicant intends to genuinely stay in Australia temporarily.

4. The applicant appeared before the Tribunal by videoconference from Perth, Western Australia on 23 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s elder sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

6. The applicant is a national of Vietnam and is 24 years old.

7. The Department delegate’s decision record, a copy of which was provided with the review application, states the applicant was granted a Subclass 573 Student visa on 14 November 2012 on the basis of on the basis of streamlined visa arrangements as he was enrolled in eligible courses at an approved educational provider. However, due to not satisfying the course requirement, his Confirmation of Enrolments (COE) was cancelled and he then applied to study courses at the vocational educational sector level. Furthermore, his education record shows his academic progress is non-progressive and he has not completed his mainstream course. The delegate noted the lack of continuity with regards to the applicant’s fields of study is concerning, as it suggests that he is utilising the Student visa program as a means of circumventing Australia's migration program to acquire ongoing residency in Australia on temporary short stay visas.

8. The delegate’s decision record indicates that at the time the applicant lodged his current visa application, in June 2016, he was enrolled to undertake the following courses of study in Australia at the vocational education sector level:

   ·Advance Diploma of Leadership and Management

   ·Diploma of Leadership and Management

   ·Certificate IV in Business

   ·Certificate III in Accounts Administration

9. The Tribunal has had regard to the Provider Registration and International Student Management System (PRISMS) which documented the applicant’s study history in Australia.  The PRISMS record indicated the applicant has been enrolled in and completed the following courses since his arrival in Australia:

   ·Academic English (Elementary to Advanced) – 2012/2013

   ·Academic English (Elementary to Advanced) – 2013/2014

   ·Academic English (Elementary to Advanced) – 2014

   ·Diploma of Science (Health Studies) - 2014/2015

   • Diploma of Science (Engineering Studies) - 2015
   • Diploma of Science (Engineering Studies) – 2015/2016

   ·Certificate III in Accounts Administration – 2017/2017

   ·Certificate IV in Business - 2017

10. The PRISMS record indicated the applicant enrolled in the following courses since her arrival in Australia but the enrolment was subsequently cancelled:

    ·Diploma of Science (Health Studies) - 2013/2014

    • Diploma of Science (Health Studies) - 2014/2015

    ·Bachelor of Engineering – 2014/2017

    • Bachelor of Engineering – 2015/2018
    • Bachelor of Engineering – 2015/2018
    • Bachelor of Engineering – 2016/2018
    • Diploma of Science (Engineering Studies) - 2016
    • Bachelor of Engineering – 2016/2019

11. The Tribunal wrote to the applicant inviting him to attend a hearing on 23 January 2018.  That invitation among other matters, requested the applicant provide an explanation of any gaps in her enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 572.223(1)(a) and asked him to provide a written statement addressing this issue by referring to Direction 53, which was attached.

12. On 16 January 2018, the Tribunal received documents from the applicant including a written statement and evidence of his current and past academic study in Australia.  The written statement from the applicant responded to issues raised in the delegate’s decision and amongst other things stated:

    I believe my studies in Australia will help me to return to Vietnam to pursue my future career.
    I would like to learn leadership and management because I would like to go back to Vietnam to work in the area of retailing and servicing. The business industry in Vietnam includes areas such as management, human resources, marketing, finance and accounting. I believe the retail and service sector in Vietnam's economy is developing in Vietnam, both in terms of the size of the market and the quality of services offered. There are plenty of opportunities for me to get a job in those sectors and later run my own business. I am fluent in Vietnamese and English and hence I will be bi-lingual and this is an asset in Vietnam.

    I am sure that my education experience I have in Australia will allow me to gain advantage in providing very good quality services in Vietnam. I gather that the tourism sector is also a fast
    developing sector of the Vietnamese economy.

    I have not been offered any specific jobs in Vietnam but later on I will seek to apply for jobs in the retailing and servicing sectors. I have checked on Google for job openings and Vietnam seems to be a growing economy. In Vietnam personal connections are essential to enter the job market. I hope to complete my course in Australia around February 2019 in Advance Diploma in Leadership and Management.

    …….

    My studies in Australia will be highly worthwhile as my studies will equip me with the required skills for me to work in the retail and service sectors in Vietnam. In Vietnam there is a need for English educated people to cater for the new and vibrant Vietnam. The use of IT technology in Vietnam is on the rise and my skills in computer will help me to enter the Vietnamese market easily. My international training and education will assist me to gain advantage in Vietnam as that country is now on the global rise both internationally and economically. My exposure to a multicultural county like Australia will certainly help me to get a broader perspective about business in the retailing and service sectors.

    This country is well known for its quality international education. Australia has extensive retailing and servicing experience and hence I can learn from my practical experience in Australia which is part of our study component. Australia offers international students the freedom to choose a study pathway that suits my future career. Australian education focuses on innovation, creativity, independent thinking and sharing of ideas.

    I want to study in Australia because the entire higher education system in Vietnam is facing several problems. There is a lack of linkage between theory and practice in Vietnam that
    leads to a large number of graduates being less skilful in modern methods of Industry operations.

    …..

    I want to return home to Vietnam and pursue my career objectives in that country. I did research on the internet about prospects in Vietnam, I came to the decision that the
    retailing and servicing industry in Vietnam will offer me good prospects to seek employment in my country. I want to work in the retail and service sectors especially in the area of leadership and management. I can also deliver training to employees based on their own training needs. In Vietnam it is well known that many employees are not internationally trained and hence my studies in Australia will help me to enter the international employment market in Vietnam.
    I also plan to work for foreign firms before establishing my own business. I can also work for government sector related to tourism and trade. Vietnamese firms like to employ overseas qualified workers who are bilingual and have educational experience overseas.

    …..

    I wish to state that ECU is not very well regarded by international students. PIBT is affiliated to ECU and is now known as Edith Cowan College (ECC). I feel Western Australia Institute of Further Studies is a better place for me to study as they are very supportive of students. In a recent article in the West Australian newspaper entitled "Students drop out of WA unis at record rate" states that "Higher education student attrition data released this week shows that 16.05 per cent of WA students who began an undergraduate course in 2015 did not return to university last year". In the same article it is stated that "Edith Cowan University had the highest dropout rate compared with other WA institutions, with more than one in
    five, or 21.87 per cent failing to return" (Please see attached copy of article), I went on instead to study at Western Australian Institute of Further Studies and undertook a Certificate III in Accounts Administration from July 2016 to January 2017. I obtained a Certificate in Accounts Administration on 6 January 2017. I then went on to do a Certificate IV in Business at Western Australian Institute of Further Studies from February 2017 to August 2017. I obtained a Certificate IV in Business on 21 August 2017. I did a Diploma of Leadership and Management at Western Australian Institute of Further Studies from September 2017 onwards and I expect to complete this course this year in May 2018.

    On completion of my Diploma of Leadership and Management I hope to continue my studies by doing an Advance Diploma in Leadership and Management at Western Australia Institute of Further Studies from June 2018 to February 2019. I will return to Vietnam at the end of February 2019 to work there in order to pursue my career in retailing and servicing sectors.

    According to Statist/ca.' The statista: Portal in 2015 about 43.62% of the employees in Vietnam were actively involved in the agricultural sector, 23.11% in the industry sector and 33.27% in the service sector. ( I believe my studies in Australia will help me to obtain employment in some of these areas. My parents in Vietnam grow tea and coffee in their farm which is a lucrative area of business. When I go back to Vietnam I can assist them to develop their business along modern lines. In a report by the World Bank in Vietnam it states that economic and political reforms in Vietnam have transformed Vietnam from a poor nation to a middle-income country. Vietnam's economy remains very resilient. (See attachment). Moreover, the tourism industry is a major driving force behind Vietnam's economic growth. This is according to the Economist's Intelligence Unit. (See attached report). These are encouraging signs for me to go back to Vietnam to work and also help develop my family business.

    I believe I am a genuine Student and a genuine Temporary entrant into Australia in light of the above clarifications. I hope the above clarifications are satisfactory to the Tribunal and sufficient for it to remit my application to the department with the direction that I qualify for the grant of the Student Visa 572 subclass.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

14. 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)     …

15. 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.

16. 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.

17. Having considered the applicant’s claims against all the factors specified in Direction 53, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

18. The oral evidence provided by the applicant and his sister during the hearing was mostly consistent with the claims he has made in the written submissions he provided the Tribunal on 16 January 2018. During the hearing he provided a further explanation for why he did not undertake the higher education sector study in Engineering, which was the basis on which he applied for the initial Subclass 573 visa in 2012. He said he had initial difficulty acquiring adequate English skills to pass the language test and so had to retake the test on a number of occasions.  He said his poor academic English skills have remained a barrier to him studying civil engineering at a higher education sector level.  He said he also lacks sufficient ability in mathematics to manage study in engineering and this is why he failed a lot of the subjects he undertook in engineering courses. He said this is why he has tried other vocational directions, before deciding management and leadership is the right sort of course to undertake. The Tribunal has noted in his written submissions the applicant claims his studies in civil engineering were compromised by the poor standard of education provided at the Edith Cowan University, where he was initially studying.

19. The applicant gave evidence he had completed the equivalent of Year 12 in Vietnam.  Both the applicant and his sister said there was a lot of encouragement and expectations from their parents that the applicant get tertiary qualifications as a civil engineer, as their uncle is an engineer.  His sister said he was not suited to this sort of academic study and the hope is that he will do better in his current course and vocational direction.  The applicant said he did look into the option of studying engineering in Vietnam and actually completed one year of a civil engineering degree in his home country before deciding he wanted to continue his studies in Australia. His sister said he did not do well in this course and it was his parent’s hope he would be more committed to his studies in Australia.  The applicant said he had not looked into the option of studying leadership and management courses in Vietnam before enrolling in this course in Australia.   He said he has not returned to Vietnam since 2015, but if he did return he would have the opportunity to conduct research into what sort of further vocational education may be available to him in Vietnam.

20. After considering this aspect of the applicant and his sister’s oral evidence and that contained in his written submissions the Tribunal accepts the applicant has not progressed academically in higher education sector studies in civil engineering in Australia, which were his stated rationale for discontinuing a civil engineering degree in his home country and coming to Australia to study.  Given these difficulties and his reported concern about the standard of education available to him at the Edith Cowan University, it is not apparent to the Tribunal why the applicant did not return to his home country and resume his endeavour to study in this field or some other appropriate field in Vietnam, rather than changing to a lower level of academic study in the vocational sector in Australia. It is of further concern to the Tribunal that the applicant has not looked into the option of studying a leadership and management course, or similar course in his home country.

21. In response to the Tribunal telling the applicant it had concern about the range of brief vocational level courses he has undertaken whilst he has been in Australia, he said this can be explained by his failure to pass subjects in the civil engineering course and his subsequent decision to change to courses in business, leadership and management. The Tribunal is not fully persuaded by this claim.  Whilst accepting it is not unusual or inappropriate for a person to change courses in response to their evolving thoughts about their vocational direction, the Tribunal has an overall concern in the particular circumstances of this matter that the applicant has displayed an overall lack of academic progress whilst he has been in Australia and this is indicative of him not having a strong commitment to his academic studies.

22. The applicant gave evidence he intends to return to Vietnam after completing the Advanced Diploma in Leadership and Management in 2019, so that he can look for work in either the retail, service, restaurant, food production or building services sectors.  When the Tribunal put to the applicant that his response on this particular issue was not very specific and not indicative of his having a clear plan he said he may possibly start his own business, such as a wholesale business buying and selling tea and coffee. In relation to concerns expressed by the Tribunal that his plans for his future employment in Vietnam lacked specificity and were quite vague, the applicant said he would find out more about what opportunities may be available to him when he actually returned there.  After considering this aspect of the applicant’s oral evidence and that contained in his written submissions the Tribunal accepts the economy of Vietnam provides a range of employment possibilities, in tourism and other sectors.  However, the Tribunal finds the applicant’s discussion of his own employment prospects to lack detail and specificity.  The Tribunal does not consider they are indicative of a person with a clear, well thought through plan for future employment in his home country, in response to which he has made complementary vocational course selections in Australia.

1. The applicant gave evidence he resides with his sister and her family in Western Australia.  He said he also has a number of other relatives in Western Australia.  He said he does not need to pay any rent and that he has worked in a variety of part time jobs since he arrived In Australia, most recently for the past two years as a receptionist in a nail salon, where he earns a nett weekly income of around $350.  He said he also receives some financial support from his family in Vietnam, with his parents giving him around $28,000 in 2015 to put towards his educational expenses. In response to the Tribunal telling the applicant it had concern about the little amount of time he has had in Vietnam since 2012 and that in conjunction with the presence of a sister and other relatives in Australia, this indicated he lacked strong ties to his home country, the applicant said he utilised Facebook and other electronic means to maintain regular contact with family and friends back in Vietnam.  The Tribunal is satisfied the applicant has had relatively consistent employment income whilst he has been in Australia and that, when compared to his potential economic circumstances in his home country, this provides him an incentive to maintain his residency in Australia. The Tribunal accepts the applicant has family ties in his home country that provide him some incentive to return there, however the Tribunal considers the extent of his familial ties in Australia also provide him an incentive to remain in this country.

2. The applicant said he had no concerns with regard to the political situation in Vietnam, nor about civil unrest in that country.  He said he may be required to serve in the Vietnamese military for a 12 month period when he returns, but that he is not concerned about this as he thinks it will be character building and an appropriate civic responsibility for him to fulfil.  The Tribunal accept this evidence and finds that neither potential military service commitments, nor concerns and civil unrest or the political situation in Vietnam provide the applicant with an incentive to avoid returning to his home country.

3. Notwithstanding these latter findings and based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 53, as detailed above, the Tribunal is not satisfied, having regard to the evidence advanced and considered cumulatively above, that the applicant intends genuinely to stay in Australia temporarily as a student.  The Tribunal considers the applicant to not have a sufficiently clear plan for his future, or to have displayed a clear enough rationale for his course selection choices to satisfy the Tribunal he is a genuine student, rather than being a young person with stable employment who is seeking to maintain his residency in Australia.

4. 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.572.223(1)(a).

5. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. 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

6. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

   David Barker
   Member