HO (Migration)

[2018] AATA 2959

HO (Migration) [2018] AATA 2959 (29 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Thai Vien HO
Mr CAM PHUONG KHUU
Mr CAM MINH KHANG KHUU

CASE NUMBER:  1710874

Home Affairs REFERENCE(S):                BCC2017/1442866

MEMBER:Warren Stooke AM

DATE:29 June 2018

PLACE OF DECISION:  Melbourne

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 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

·cl.500.311 of Schedule 2 to the Regulations.

Statement made on 29 June 2018 at 12:28pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 – Genuine temporary entrant – Change in career direction – Completed Masters in Accounting – Enrolled in Commercial Cookery – Applicant’s previous experience opening restaurant in Vietnam – Decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 500.212, 500.311, 500.611(1)), Conditions 8105, 8202, 8501, 8516, 8517, 8532, 8533

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 and Border Protection on 10 May 2017 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 20 April 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 change in career direction following success with a Master’s degree in Accounting and work experience with a s485 visa, that the applicant was a genuine temporary entrant for study in seeking to undertake a Certificate III and Certificate IV in Commercial Cookery.

4. The applicants appeared before the Tribunal on 17 May 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 applicants were assisted in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   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 whether the applicant is a genuine temporary entrant for the purposes of study.

8. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

9. At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate’s decision of 10 May 2017 and that she understood the content of the decision.

10. The applicant provided the Tribunal with an explanation, as to her understanding for the refusal of the visa application by the delegate and acknowledged that the reason was that the delegate did not accept that the applicant met the criteria required for the grant of a visa.

11. The applicant does not claim to meet the primary criteria for any subclass of the student visa and seeks to meet the secondary criteria as a member of the family unit of a person who holds a student visa.

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

12. 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?

13. 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.

14. 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.

15. The applicant was initially granted a TU-573 visa to undertake studies for a Master of Professional Accounting at Charles Sturt University and completed this course on 19 December 2014 and the TU-573 visa expired on 13 April 2015.

16. On 17 February 2015, the applicant applied for a student visa subclass TU-572 and was enrolled to study an Advanced Diploma of Management course and the student application was refused on 3 June 2015 following a non-response to a Departmental request for information relating to the genuine status of study.

17. The applicant also applied for a Post Study Work Stream visa subclass VC-485 on 10 March 2015 which was granted on 20 April 2015 and was valid through to 20 April 2017.

18. On 18 September 2017, the applicant enrolled in a Commercial Cookery Certificate III course, which she completed on 8 April 2018 and the applicant is now enrolled in a Commercial Cookery Certificate IV course. In this regard, the applicant confirmed that she has a current certificate of enrolment and that her Commercial Cookery Certificate IV course will finish in September 2018.

19. The applicant provided the Tribunal with details of her background, including completion of studies at the university level in Vietnam and a period of work as an accountant prior to seeking to undertake post graduate studies in Australia. The applicant confirmed that she and her husband had unsuccessfully opened a restaurant in Vietnam that provided a Western cuisine, but it was at a time when international tourists had not started going to Vietnam in large numbers

20. The applicant advised the Tribunal that she had followed a course of study that was culturally expected, given that her father had his own successful business and she assisted with accounting.

21. After completing the post graduate course in Australia, the applicant was keen to continue study in the field of cookery, as she and her husband intend to open a restaurant, with her family, upon return to Vietnam. The Commercial Cookery qualifications will provide the knowledge to enable her to oversee that kitchen and the preparation of Western foods. In this regard, the applicant’s husband has experience in the hospitality industry in Vietnam.

22. The applicant has a father, mother and sister in Vietnam and a sister in Australia, who lives remotely from Melbourne and she does not see her often. The parents have a number of assets and the father, whilst retired, is still engaged in investment. The sister in Vietnam currently looks after the parents; however, the applicant advised that she will return to assume that responsibility after she completes her course, as her sister intends to travel overseas.

23. The applicant has a 9 year son, with her husband, who is enrolled in school. The applicant and her family live in Springvale and pay rent of $1,400 per month. The applicant has an Australian friend, who attended the hearing. The applicant stated that Australia has a high cost of living.

24. The applicant has been back to Vietnam once since arriving in Australia; however her husband and son have gone home more often. The applicant went back to Vietnam for the Lunar Year celebration in 2018 for 3 weeks.

25. The applicant gave evidence that she is financially supported by her parents; however she has worked as an accountant on-line. Her husband works on sub-contract, as a stone mason, in the kitchen bench-top industry and earns between $150 and $180 per day.

26. The applicant stated that she does not really have ties in Australia and she would have no difficulty in assimilating back into Vietnamese society. She also stated that her son speaks Vietnamese and he will be able to go to an English school upon return.

27. The applicant stated that she had been in Australia for an extended period of time because she likes study and acquiring knowledge.  

28. In response to a question from the Tribunal concerning any reason that would preclude the applicant from returning to Vietnam that applicant stated “completely not.”

29. The applicant advised the Tribunal that it was her intention to complete her course of study in September 2018 and will then return to Vietnam. This position was also submitted by her lawyer, who stated that the applicant is genuine and will return to Vietnam upon completion of the current course.

30. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily and accepts the statement from the applicant that she, her husband and child will return Vietnam upon completion of her course in September 2018. In this regard, the Tribunal accepts that a change of career direction is not abnormal and accepts that the applicant will return to Vietnam to open a restaurant with her family. As such, the decision of the Tribunal is premised on that undertaking from the applicant. Accordingly, the applicant meets cl.500.212(a).

    Does the applicant intend to comply with visa conditions?

31. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

32. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

33. The Tribunal is satisfied that there is no evidence before the Tribunal to suggest the applicant will not comply with her visa conditions.

34. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Conclusion on cl.500.212

35. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

36. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

37. As the primary applicant has satisfied cl.500.212, the Tribunal fins that the secondary applicants have satisfied the criteria for dependent visas.

    DECISION

38. 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 500 (Student) visa:

    · cl.500.212 of Schedule 2 to the Regulations.

    The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the second and third named applicants meet the following criteria for a Subclass 500 (Student) visa:

    · cl.500.311 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member