Hinh (Migration)

[2018] AATA 1134

Hinh (Migration) [2018] AATA 1134 (29 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hang Hoai Bao Hinh

CASE NUMBER:  1615453

DIBP REFERENCE(S):  BCC2016/2862678

MEMBER:Stephen Witts

DATE:29 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 29 March 2018 at 3:07pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Substantial stay in Australia – Non-commencement of studies – Value of the course to the applicant’s future – Unable to indicate future plans in his chosen industry – Non genuine temporary entrant

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 2 cl 500.212

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 22 September 2016 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 for the visa on 29 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 22 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.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is that the applicant does not genuinely intend to stay in Australia temporarily.

   Genuine applicant for entry and stay as a student (cl.500.212)

8. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)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 intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

9. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian 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.

10. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

11. At the hearing the Tribunal had a discussion with the applicant regarding the relevant issues for the considerations laid out in Ministerial Direction 69.

    Background

12. The applicant arrived in Australia from Vietnam on 24 June 2012. The applicant was granted a student Visa TU - 573 to study courses leading to a Bachelor of Business Administration.

13. The applicant has now been in Australia for almost 6 years and during that time has studied various courses in English and various Certificate and Diploma level courses in Building and Construction. The applicant is currently studying a Diploma of Building and Construction (Building) which he began on 6 February 2017 and is due to complete on 15 December 2018. He has also enrolled to begin a Bachelor of Engineering Technology (Civil) which will begin on 11 February 2019 and is due for completion on 15 December 2021.

14. On 22 September 2016 the delegate informed the applicant that it did not accept that the applicant was a genuine temporary entrant and refused to grant a student visa under clause 500.212.

15. The genuine temporary entrant criterion requires that the applicant is a genuine student because the applicant intends to stay in Australia temporarily when assessed with consideration of the factors outlined in Ministerial Direction 69.

    Circumstances in home country

16. The applicant arrived in Australia having completed school and studying for a management and hospitality diploma. He did not complete this qualification.

17. He indicated to the Tribunal that the reason he wanted to study here in Australia was that he believed that gaining knowledge of overseas conditions would allow him to be a more marketable commodity back in his home country and to a higher salary. He did not consider undertaking this study in his own country.

18. The applicant has family back at home including parents and grandparents and an older sister and other relations.

19. He testified to the Tribunal that he had no concerns about returning home and that he had no concerns regarding military, social, economic, or personal circumstances that would stop him returning home.

20. The Tribunal finds that over a substantial stay since 2012 the applicant has been able to manage personal relationships overseas by living in Australia, by keeping in touch from Australia, and by making a visit. For these reasons, the Tribunal does not consider the applicant’s personal connections overseas to be distinctive incentive for the applicant to cease residence in Australia.

    Circumstances and study in Australia, and the value of the course to the applicant’s future

21. The applicant stated that since his arrival here in 2012 he has only been back once in July 2013 for a brief period. He said that he has not had problems keeping in touch with family back at home via social media outlets including Facebook.

22. He indicated to the Tribunal that he does have a family member in Australia, an aunt who also lives in Melbourne. He lives by himself in a rental apartment in North Richmond. He says he still does not work, but that his family send money over.

23. Adopting the procedure in section 359AA of the Act, the Tribunal read out the following statement to the applicant:

    I’d like to talk about your study history and to do that I am going to put to you formally under the law, a piece of information I have.

    The information I will put to you is information that without explanation is something I consider would be the reason, or part of the reason, for affirming the decision under review. Section 359AA sets out this procedure.

    I have before me, Provider Registration and International Student Management System records, or otherwise referred to as PRISMS. This PRISM record from a database that is kept by the education providers and details all your certificates of enrolments, the dates that you remained enrolled and the outcome of the courses.

    This information is relevant to the review because it may lead me to form the view that it documents a history of unrelated courses. It lists courses that weren’t started, or that were started and shortly thereafter cancelled. The consequences of the information being relied on by me may be that I form the view that you do not meet the requisite criteria, more specifically, that you are not a genuine student. This may mean that you are refused the visa which you applied for.

    You may comment on and/or otherwise respond to this information.

    You may wish to ask for additional time to comment on or respond to this information.

    Do you require extra time to consider this information? Or do you wish to continue now?

24. The Tribunal enquired as to whether the applicant understood the information put to him in accordance with s.359AA. The applicant confirmed that he understood. The applicant did not seek an adjournment and elected to respond in the hearing. He said he understood and wanted to continue.

25. The applicant first came here to study General English which he completed in June 2013. He then enrolled in a Bachelor of Business Administration in July 2013 but was unable to continue this due to its difficulty. He then began a Diploma of Building and Construction (Building) which he began in January 2014 but again was unable to complete the studies. After this he enrolled in a Certificate IV in Building and Construction (Building) which he completed in October 2016.

26. The applicant then re enrolled to study a Diploma of Building and Construction (Building) which began in February 2017 and is due for completion in December 2018. He says that he then wants to study a Bachelor of Engineering Technology (Civil) which will begin in February 2019 and is due to finish in December 2021.

27. In his GTE statement the applicant has said that he wishes to get qualifications in the building and construction project management field and return to Vietnam to progress his career. In his statement he also acknowledged that he had either failed or not completed a number of the courses that he had previously enrolled in.

28. He also stated that the qualification that he had originally intended to pursue when coming to Australia, his Bachelor of Business Administration, that he could not complete this as it was not a suitable pathway towards studying a Diploma of Building and Construction. When asked, the applicant was unable to explain when he first became interested in pursuing a building and construction project management career.

29. He also indicated that he struggled with his original Diploma of Building and Construction (Building) where he only passed 2 of the 21 mandatory subjects. He also indicated that he had been having trouble with his English studies and initially failed all his subjects in General English.

30. When asked by the Tribunal why he had not attempted to complete his studies or to pursue other studies back in Vietnam where the language problem would not be as great he responded by saying that the quality of education is better in Australia compared to that offered at home, but could offer no specific reasons for the path chosen.

31. The applicant was unable to provide any more information as to his future plans in the building and construction field but indicated that he thought he would be able to obtain a position with a large Vietnamese construction company but was unable to provide any detailed information as to how this will come about.

32. The applicant’s non-commencement of studies and lack of academic progress is of concern to the Tribunal. The Tribunal considers that a genuine applicant for entry and stay as a student is a person who genuinely intends to be a student in Australia. The primary occupation of a student is to study and to achieve academic progress.

33. The Tribunal finds the applicant’s explanation for his poor academic progress in Australia unconvincing and do not properly account for his academic record, and change in course trajectory.

34. The applicant claims that his intention has always been to stay in Australia temporarily and that that intention is still held. If that was so, the Tribunal considers that the applicant would have known at what point he decided to pursue a career in building and construction and would have been focussed on beginning that once he arrived in Australia instead of pursuing a Bachelor of Business Administration. He also would have made more of an effort in his General English courses.

35. The fact that the applicant instead proposes further study indicates to the Tribunal that the applicant’s intention is not to cease his temporary stay in Australia. It is the Tribunal’s view that the applicant’s main purpose in being granted a further student visa is to maintain ongoing residence in Australia.

36. The Tribunal has significant concern as to the value of the course the applicant has recently started for the second time and that his real intention is for the granting of further student visas for the purposes of continued residence in Australia.

37. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet the criteria set out in cl.500.212(a).

    Conclusion on cl.500.212

38. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

39. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Stephen Witts
    Member