Hoang (Migration)

Hoang (Migration) [2018] AATA 3315 (23 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anh Duc Hoang
CASE NUMBER:  1709865
HOME AFFAIRS REFERENCE(S):           BCC2017/918301
MEMBER:Mark Bishop
DATE:23 August 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 23 August 2018 at 4:59pm
CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 500 (Student) – Course enrolment – PRIMS record – Poor study record – 36 separate course enrolments over 10 years – Spent adult life in Australia – Career plans – No proof of job offer – Family owns hotel – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359AA, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212 Schedule 8 Conditions 8202
CASES
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration and Border Protection V Angkawijaya [2016] FCAFC 5
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105
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 on 28 April 2017 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 8 March 2017. 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.
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 intended genuinely to stay temporarily in Australia.
The applicant provided a copy of the decision record to the Tribunal. The decision record contained a copy of the enrolment history in the PRISMS record of the applicant. The decision disclosed thirty-six (36) separate COE’s were issued to the applicant from 11 October 2007 until 15 July 2018, a period of almost eleven (11) years.
The decision record disclosed the applicant last completed a Certificate III in Commercial Cookery on 14 March 2017. The applicant advised the Tribunal in evidence he completed a course in Commercial Cookery IV on 31 August 2017. The applicant provided a Certificate of Graduation to the Tribunal in this course.
In evidence the applicant advised the Tribunal four successive enrolments in a Diploma of Hospitality Management between 15 September 2017 and 15 July 2018 were cancelled by the education provider for reason of “non-commencement of studies” on 31 October 2017, 20 February 2018 (twice) and 30 April 2018.
The applicant appeared before the Tribunal on 23 August 2018 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Genuine applicant for entry and stay as a student (cl.500.212)
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?
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.
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.
Relevant Criteria
It appropriate to observe that compliance with the prescribed criteria turns on the Tribunal’s satisfaction on review as to whether or not the criteria have been met and not on the objective existence of that fact. Minister for Immigration and Border Protection V Angkawijaya [2016] FCAFC 5 at 15
In determining whether it is so satisfied, the Tribunal is not required to uncritically accept any or all of the allegations made and it has not done so. As Heerey J observed in Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7]:
A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.
Similarly, as observed by McHugh J sitting in the High Court’s original jurisdiction as a single judge in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]:
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
The Tribunal further observes that a decision-maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
The tribunal provided a s.359A statement to the applicant. The Tribunal explained the s.359A statement to the applicant. The Tribunal read out the s.359A statement to the applicant. The s.359A statement was as follows:
s.359AA Statement to be read out by the presiding member at hearing in Case No 1709865
Mr HOANG, I am going to share with you some adverse information that I have from a Departmental database. It is called PRISMS (the Provider Registration and International Students Management System). It tracks, based on information reported by Australian education providers, the enrolment and education achievements of international students in Australia. I have a PRISMS report dated 13 August 2018.
The information from PRISMS is:
1.       PRISMS show you have enrolled in 36 courses during the ten (10) years you have been resident in Australia.
2.       PRISMS show you finished only three (3) courses in the English for Further Study field in 2008.
3.       PRISMS show you finished a Certificate IV in Business in on 18 October 2013 after a period of enrolment from 5 April 2013 until 18 October 2013. You provided a Certificate of Graduation to the Tribunal to this effect.
4.      PRISMS show you finished a Diploma of Business on 22 October 2014 after a period of enrolment from 6 December 2013 until 22 October 2014. You provided a Certificate of Graduation to the Tribunal to this effect.
5.      PRISMS show you finished Certificates in Commercial Cookery III on 17 March 2017 after a period of study from 15 March 2016 until 14 March 2017. You provided a Certificate of Graduation to this effect.
6.        PRISMS show you finished Certificates in Commercial Cookery IV on 25 September 2017 after a period of study from 15 March 2017 until 31 August 2017. You provided a Certificate of Graduation to this effect.
7.       PRISMS show you enrolled in a Diploma of Hospitality Management on four (4) occasions from 15 September 2017 until 30 April 2018 and each of those enrolments was cancelled by the education provider on 31 October 2017, 20 February 2018, (twice) and 30 April 2018 for reason of “non-commencement of studies”.
8.       PRISMS show you enrolled (again) in a Diploma of Hospitality Management on 15 July 2018 for the fifth time since August 2017.
9.       PRISMS show you have enrolled in a further twenty five (25) courses from 7 September 2007 until 2018 covering the fields of Commerce (Accounting), Business Administration, Furniture Making, Furniture Design and Technology, International Business Management, Community Services Work, Accounting, Frontline Management, Management, Business (Marketing) and Hospitality Management. PRISMS show your enrolment in these courses was cancelled by the education provider for reason of “non-commencement of studies” (repeatedly), “non-payment of fees” (repeatedly), “student notifies cessation of studies”.
10.      PRISMS show you were not enrolled in an approved course in the Higher Education (HE) sector in the fourteen (14) month period from 25 January 2016 until 15 March 2017 a breach of condition 8202 attached to your TU-573 visa.
11.      PRISMS show you did not complete or graduate from any courses in the following periods, a period of 101 months or almost 8.5 years:
·    8 February 2008 until 17 August 2009;
·    6 November 2009 until 4 April 2013;
·    23 October 2014 until 16 March 2017;
·    1September 2017 until the present time.
This information is relevant for two reasons.
Firstly because it shows that your enrolments in all courses (excluding VET level courses in English, Business and Commercial Cookery) from 11 February 2008 until 15 July 2018 have been cancelled. It indicates a lack of academic progress that in the absence of other explanation is not consistent with you being a genuine student staying in Australia temporarily.
Secondly it shows when you held past student visas you were not enrolled for certain periods and given that condition 8202, which requires a student to be enrolled at all times, was attached to those student visas this may indicate you have breached this condition and that you may not intend to comply with any conditions subject to which the visa is granted; and
It also shows when you held past student visas you were not enrolled for certain periods and given that condition 8516, which requires an applicant to satisfy the primary and secondary criteria, was attached to those student visas this may indicate you have breached this condition as a requirement of cl.500.212(b) that an applicant is enrolled in a course of study. This may indicate that you may not intend to comply with any conditions subject to which the visa is granted; and
If the Tribunal relies on this information in making its decision, it may lead me to believe that you are not a genuine student, and that you do not meet cl.500.212(a) or cl.500.212(b) If the Tribunal so finds, this information would be a reason, or part of the reason, for me to affirm the decision of the Department in your case and refuse your application for a student visa.
I invite you to comment on or respond to that information. You do not have to respond or comment now. You may seek additional time to comment on or respond to that information. If you do want additional time, I will consider your request and will grant you a reasonable amount of time to consider the information I have given to you and to consider your response to that information.
Do you want to comment on or respond to the information I have just provided to you now or would you like some time to consider it before you respond?
The applicant advised he did not seek an adjournment.
The Tribunal examined the applicant as to the s.359AA statement referred to in paragraph 17 above.
·In respect of paragraph 1 the figure of 36 was correct. The applicant advised he came to Australia as a young man (boy) and the Vietnamese community was smaller and he did not receive much help. The applicant messed around for a long time, perhaps four or five years, made bad friends, got lost and did not study.
·In respect of paragraph 2 the applicant advised it was correct.
·In respect of paragraph 3 the applicant advised it was correct.
·In respect of paragraph 4 the applicant advised it was correct.
·In respect of paragraph 5 the applicant advised it was correct
·In respect of paragraph 6 the applicant advised it was correct
·In respect of paragraph 7 the applicant advised it was correct
·In respect of paragraph 8 the applicant advised it was correct
·In respect of paragraph 9 the applicant advised it was correct because he was lost, followed advice from friends, did not have a career purpose and was not interested in the courses he enrolled in. The applicant advised he lied to his parents. The applicant advised his parents remitted $25,000 to $30,000 per annum to provide for his living costs in Australia. He advised he was having “good times and fun” and not concentrating on his study.
·In respect of paragraph 10 the applicant advised it was correct. The applicant decided to study VET level courses instead of HE courses.
·In respect of paragraph 11 the applicant advised after his application for a student visa was refused he decided to stop studying, remained in Australia, visited Vietnam and worked in a restaurant as a cook to gain experience.
The applicant provided a GTE statement to the Tribunal (Df: 29). It provided as follows:
·He was sent to Australia at age 20 without proper advice for his future career. He decided to study business;
·He completed 3 English courses between 2007 and 2008;
·He commenced course with a business major but could not follow the lessons due to limited English capacity. As a result he completed a further English course in 2009;
·He determined to study in the business area and completed a Certificate IV in Business in 2013 and Diploma of Business in 2014;
·He realized business was not an area he wanted to pursue and his passion was in cookery which was built up whilst working in a kitchen;
·He was promoted in 2015 to Pizza Chef at ‘For the Love of Pizza’ in Northcote. His family supports his decision to follow his love for cooking;
·He completed a Certificate III in Commercial Cookery and Certificate IV in Commercial Cookery in 2017.
In direct evidence to the Tribunal the applicant advised he had not engaged in any study in the period 1September 2017 until mid-July 2018.
In direct evidence to the Tribunal the applicant advised his enrolment in a Diploma of Hospitality Management was cancelled by the education provider on four (4) occasions between September 2017 and April 2018.
·His future plan is to start working at a Hotel in Vietnam as the Head Chef before opening his own restaurant.
The Tribunal asked for any evidence of a business plan. In direct evidence the applicant advised he did not have a business plan. His mother owned a medium sized hotel with a mainly overseas clientele or he might receive a better offer of employment. He was unable to specify where this better offer of employment might originate.. The applicant advised he did not have any offers of employment in the hospitality industry except for working in his mother’s hotel.
·He has had a commitment and passion for the cookery field since 2015.
·He wants to complete his studies as soon as possible. Has received a job offer for a Head Chef position at Royal Quang Bing Hotel, Vietnam after his graduation.
The Tribunal asked to sight the proof of this offer of employment. In direct evidence the applicant advised his family would arrange the employment. He was unable to provide any proof of this offer.
The Tribunal inquired what specific graduation the applicant referred to in this part of his statement considering the repetitive cancellation of enrolments in the period after September 2017. In direct evidence the applicant advised in the future.
·He requires a Diploma of Hospitality Management in order to open his own restaurant in the future and to learn management skills which was not covered in his commercial cookery courses.
The Tribunal inquired on what basis the applicant made this assertion. In direct evidence the applicant advised he wanted to gain a further Diploma. He acknowledged he already had Certificates and Diplomas in Business and this was very similar to management.
Conditions attached to visa
The applicant resided in Australia in the period 17 April 2015 until 15 March 2017 pursuant to a TU-573 visa. A holder of a TU-573 visa is required to study in the Higher Education (HE) sector. Condition 8202 was attached to his visa at this time. Condition 8202 requires that a visa holder must be enrolled and maintain enrolment at the same or a higher level.
Paragraph 10 of the s.359AA statement outlined in paragraph 17 above disclosed the applicant was not enrolled in an approved course in the HE sector in the period referred to in paragraph 32 above. In direct evidence the applicant confirmed he was not enrolled in the HE sector in this period and chose to study in the VET sector.
Clause 500.212(b) of Schedule 2 to the Migration Regulations is outlined above at paragraph 10.
This clause relevantly provides an applicant is a genuine applicant for entry and stay as a student because the applicant intends to comply with any conditions to which the visa may be subject. Clause 500.212(b) (i) and (ii) address an applicant’s record of compliance with any condition of a visa previously held by the applicant and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
The applicant did not provide a statement to the Department.
The applicant provided a statement to the Tribunal. It is outlined at paragraph 20 above.

On 1 August 2018 the Tribunal advised the applicant in writing it would have regard to Cl.500.212(b) of Schedule 2 to the Regulations.
The applicant’s statement did not address the applicant’s record of compliance with conditions attached to previous visas. The Tribunal raised cl.500.212(b)(i) with the applicant. In direct evidence on this point the applicant advised the Tribunal he intended to return to Bachelor level study at the conclusion of his VET studies in hospitality management.
The applicant’s statement did not address the applicant’s intention to comply with any conditions to which the visa might be subject. The Tribunal raised cl.500.212(b)(ii) with the applicant. In direct evidence the applicant advised he expected to finish his Diploma and to get sufficient time from the Tribunal to finish his studies.
Ministerial Direction Number 69
The Tribunal turns to consider Ministerial Direction Number 69 (MD69).
The Tribunal considers cl.9 of MD69 the applicant’s circumstances in his home country.
The applicant’s father had visited Australia on business. The applicant advised his parents sent him to Australia because they thought there would be a better future. The applicant did not do any research or exploratory work on potential courses in Australia. He acted consistently with his father’s desires. He advised his family were wealthy and had significant business interests. He advised his mother has remitted $A25,000 to $A30,000 every year since he took up residence in Australia. He advised he didn’t have any military commitments and was not aware of any military or civil disturbances in Vietnam. He volunteered the government in Vietnam was corrupt. The Tribunal advised this comment was not a relevant consideration.
The applicant has lived all his adult life in Australia. He has been away from family control and community standards and remote from family expectations whilst in Australia. The applicant volunteered he lied to his family in Vietnam as to his study progress in Australia. The applicant expressed only the most general interest in returning to his home country. Whilst he advised he could obtain work in Vietnam it would be provided to him. He expressed no great interest in marking a mark in his home country. In his written statements and evidence to the Tribunal the applicant did not outline any community involvement or extant friendships from his secondary school days. The applicant in a response to a request for student visa information under s.359(2) of the Migration Act expressly refused to provide any information as to his immigration history or any information about family and close personal relationships in Vietnam.
The Tribunal is of the view that eventually the applicant will return to his home country and take over interests in his mother’s companies. The Tribunal could not detect any priority for this to occur. In fact the applicant advised the Tribunal on a number of occasions if he got a better offer he would take it. He did not express any particular closeness to other member s of his family in Vietnam. The Tribunal is unable to conclude that the applicant’s personal ties to his home country serve as a significant incentive to return to Vietnam
The Tribunal considers cl. 11 of MD69 the applicant’s potential circumstances in Australia.
The applicant advised he shares a house with friends, attends temple regularly, and helps out at temple by cooking for community members. He advised he is a member of a soccer club at Essendon and participates in organised sport. He has a girl-friend who used to live in Australia but now lives in the USA. He advised it is his intention to marry his girl-friend and both sets of parents have met and approved the future marriage. He advised his girl-friend had advised him she would not marry him until he had settled down. The applicant advised the Tribunal that might be sometime in the future. He advised he receives a large remittance from Vietnam supplemented by earnings of up to $400 per week from part time work.
The Tribunal is of the view the applicant has established for himself a well-ordered life in Australia after a residence of ten years. That life involves, study, significant income, work, sport, friends, community activities, community outreach and a potential marriage sometime in the future.
The Tribunal is of the view the applicant’s ties to Australia present as a strong incentive to remain in Australia. The Tribunal is inclined to the view the applicant is using the student visa program to circumvent the intentions of the migration program and the student visa is being used to maintain ongoing residence.
The Tribunal considers cl. 12 of MD69 the value of the course to the applicant’s future.
The applicant has spent all his adult life in Australia. He is now 29 years of age. All that adult life has been sent as the holder of a student visa or appropriate bridging visa. His progress through the Vet sector is notable for many visits to a whole range of different courses with a typical result of cancellation of the COE for reason of “non-commencement of studies” or “non-payment of fees”. Generally until 2016 the applicant’s study record was one of enrolment and cancellation. Progress was minimal. 2016 the applicant gained VET level qualifications in Commercial Cookery. From August 2017 until July 2018 the applicant reverted to form. Multiple enrolments in a Diploma of Hospitality Management quickly followed by multiple cancellations resulting in no progress over a lengthy period of time. The applicant now seeks to remain in Australia for a further period of time to enrol in a course of study he has run away from repeatedly over the last twelve months. The applicant has had every opportunity to prove study at Diploma level in Hospitality Management holds real value. His own actions demonstrate it holds minimal value.
The Tribunal is inclined to the view the applicant is attempting to study in a course that is consistent with his current level of education (Diploma level) within the VET sector. The Tribunal is of the view it will neither help nor hinder in gaining employment in a family company in Vietnam. The applicant advised his mother would offer him employment. The Tribunal is unable to detect any relevance in pursuing study at Diploma level in hospitality management to the future career, company placement or remuneration the applicant might obtain in Vietnam or elsewhere.
The Tribunal considers cl. 13 and 14 of MD69 the applicant’s immigration history.
The Tribunal raised with the applicant his lengthy stay in Australia, his various visas over the years and conditions attached to those visas. That discussion is outlined at paragraphs 21 to 29 above. In early years in Australia the applicant generally enrolled in short, inexpensive courses and did not start or finish the overwhelming majority (excluding Business courses at Certificate and Diploma level) of those courses. In the two year period 2016 to 2017 the applicant enrolled in two short, inexpensive courses in the VET sector and concluded those courses. Thereafter and until the present he reverted to the norm and again enrolled in short, inexpensive courses and did not start or finish any of those courses at Diploma level in hospitality management.
The Tribunal is of the view the applicant has undertaken a series of short, inexpensive courses and has been onshore for some time without successfully completing a qualification.
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 cl.500.212(a).
Conclusion on cl.500.212
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Mark Bishop
Member

[2018] AATA 3315

23 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention