Le (Migration)

[2017] AATA 2881

Le (Migration) [2017] AATA 2881 (20 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huu Le Le

CASE NUMBER:  1608662

DIBP REFERENCE(S):  BCC2015/3674093

MEMBER:Mark Bishop

DATE:20 December 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 20 December 2017 at 5:41pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 – Vocational Education and Training Sector visa – Non genuine entrant – Changed study plans – Previously held higher education sector visa – Credibility issues  – Using student visa program to maintain ongoing residence

LEGISLATION
Migration Act 1958 ss 65, 499
Migration Regulations 1994 Schedule 1 Item 1222 Schedule 2 cls 572.223, 572.223(1)(a)

CASES
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407
Selvadurai v Minister for Immigration and Ethnic affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105

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 2 December 2015. The delegate decided to refuse to grant the visa on 6 June 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 the delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student because the delegate was not satisfied the applicant intended to genuinely stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 12 December 2017 to give evidence and present arguments. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. 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)     …

8. 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.

9. 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.

10. The Tribunal outlined the content of Ministerial Direction Number 53 and explained its meaning to the applicant.

11. The applicant provided a copy of the decision record to the Tribunal.

12. The applicant advised he had read the decision record, understood it and offered a concise and accurate summary of the findings of the delegate.

13. The decision record contained extensive references to the PRISMS record of the applicant and detailed commentary and history of the enrolment record and outcome of studies of the applicant.

14. The decision record contained a comment that the applicant had not left Australia since his arrival in November 2012. This applicant challenged the accuracy of this comment. The applicant advised he had left Australia for 2 brief periods in 2016/2017. The Tribunal accepts this advice from the applicant.

15. The Tribunal wrote to the applicant on 24 and 30 October October 2017 requesting the applicant provide the following information (1) A copy of a current Certificate of Enrolment (COE) (2) Documents that showed the applicant was currently enrolled in a course (3) Documents that show past studies in Australia, attendance certificates, academic transcripts and certificates of completion and (4) An explanation of any gaps in enrolments and relevant documentary evidence

16. The applicant responded to the request of the 24 October by requesting a postponement of the hearing. The Tribunal wrote to the applicant requesting a copy of the applicant’s travel itinerary and asked the applicant to state the reasons for the urgent family matter. The applicant provided a copy of an itinerary for travel to Bangkok, Thailand on 11 November 2017 and a return ticket from Singapore to Melbourne on 2 December 2017.

17. The applicant did not respond to the request for reasons for the urgent family matter. In evidence the applicant advised he went on a holiday in this period and the urgent family business was the hand delivery of his father’s death certificate to his mother. The applicant did not explain why this certificate could not have been delivered by alternate means or the urgency of its delivery at this particular time.

18. The applicant provided a statement to the Tribunal on 8 December 2017.

19. The applicant holds a Bachelor’s degree in IT conferred on 15 March 2011 by the Ho Chi Minh City University of Technology.

20. After graduation from University the applicant advised he had been continuously employed as a technician in the IT field and after some time as a social worker employed by a charity in Vietnam. The Tribunal notes the applicant in his written statement of 8 December 2017 said he ‘was unsuccessful in obtaining work in a competitive job market in Vietnam in a relevant field’ (Tf: 63). The applicant advised it was this work in the charity that was the genesis of the idea to study social sciences in the HE sector in Australia.

21. The applicant entered Australia on 22 November 2012 pursuant to a Student (Class TU subclause (573) visa.

22. Immediately upon arrival in Australia pursuant to the above visa the applicant withdrew from his enrolment in a Diploma and Bachelor of Social Science and pursued study in the field of English. The applicant has never commenced study since in the HE sector in Australia.

23. The Tribunal inquired as to why the applicant had not continued with his enrolment in the HE sector (the basis of the grant of the relevant student visa) almost immediately after his arrival in Australia.

24. The applicant advised upon arrival in Australia he thought it might be too difficult to study in English and made a decision to withdraw from his enrolments. The applicant did not dispute the finding of the delegate that he did not commence his studies in the HE sector.

25. The applicant provided a written document that confirmed he never ‘actually started’ his Diploma of Social Science or Bachelor of Social Science (Tf: 70).

26. In an unsigned statement dated 4 January 2016 and in evidence to the Tribunal the applicant advised he married his Vietnamese girlfriend who accompanied him to Australia, changed his visa to dependant, decided not to pursue HE studies (the basis of his original student visa grant), supported his now wife for over 2 years, went through a divorce and decided to pursue formal study in the hospitality sector after November 2015 (Df: 85).

27. The decision record was critical of this change of direction after a short time in Australia and made a finding that the pathway chosen by the applicant appeared more likely to have been based on taking advantage of the Streamlined Visa Processing arrangements to obtain a visa for entry into Australia, without a clear intention of studying for a Higher Education Degree level course in Australia.

28. The Tribunal examined the applicant on this point. The applicant advised his reasons for withdrawing from the HE courses was that he had been married and he was expected to work and support his wife. Notwithstanding this stated expectation the applicant gave evidence and provided a statement that  his family provided all necessary financial support for his stay in Australia, had done so in the past and would continue to do so in the future (Df: 85).

29. The applicant further explained he had been in a relationship with his now wife for 4 years and the two families had been discussing marriage for at least 2 years before the couple came to Australia and applying pressure for the couple to get married.

30. The applicant explained further that he had decided to come to Australia at least as early as November 2011.

31. Accordingly the applicant came to Australia with his then girl-friend after a considerable period of thought, married her in Australia consistent with lengthy family discussions and expectations, did not engage in the study which was the justification for coming to Australia and used alleged cultural expectations as the justification for not complying with the terms of his student visa.

32. The Tribunal finds it difficult to reconcile the fact that the applicant has gone through the efforts to enrol in a high cost, long term venture such as a HE degree and then shortly after arrival and without commencing studies in the Diploma and Bachelor of Social Sciences changes direction completely to enrol in an English language course and then seeks to obtain a dependant student visa.

33. Based on the above evidence the Tribunal concurs with the finding of the delegate that the applicant took advantage of the Streamlined Visa Process to obtain a visa for entry to Australia and was not at that time a genuine temporary entrant and a genuine student.

34. The applicant was granted a Student Dependant (Class TU subclass 573) visa on 13 May 2013 valid until 30 August 2016. Hence the applicant was not required to study in this period. The applicant did not commence any study in the period 21 June 2013 until 23 November 2015, a period of almost 2.5 years.

35. The applicant explained to the Tribunal he worked in Nandos for almost 3 years, gained experience as a cook, order-taker, food preparer, machine operator and worked in all aspects of the company’s restaurant operations.

36. Arising from this experience the applicant determined to pursue a career as a chef and in time restaurant owner/manager within the field of hospitality.

37. The applicant provided the following material to the Tribunal:

    ·Certificate of Graduation for a course in English for Academic Purposes for the period 7 January 2013 until 21 June 2013;

    ·Graduation Certificate and relevant course transcript in Commercial Cookery 111 conferred 29 November 2016;

    ·Graduation Certificate and relevant course transcript  in Commercial Cookery IV conferred 21 May 2017;

    ·Course transcript and COE status for a Diploma of Hospitality Management stating the applicant had completed 90% of his studies as at 7 December 2017;

    ·Statement of completion of above Diploma of Hospitality Management (12 December 2017);

    ·COE for enrolment in an Advanced Diploma of Leadership and Management for the period 22 January 2018 until 20 January 2019.

38. Accordingly as at December 2017 the applicant has graduated in English studies in Australia, conducted himself with a degree of proficiency demonstrating a reasonable command of the English language during the Tribunal hearing, has lived in Australia almost continuously for more than 5 years, left Australia only rarely in recent years, has worked extensively in the hospitality and food preparation industries in Australia, is a qualified chef, has completed his studies in hospitality management, achieved the critical qualifications necessary to gain employment in his home country as outlined in his application for a student visa (Df: 17) and completed the studies necessary to give effect to his purpose ‘of getting a good job or opening his own business’ (Df: 86).

39. The Tribunal repeatedly explored with the applicant the utility of returning now to Vietnam and giving effect to his express purpose of working as a chef and possibly opening a restaurant in conjunction with his mother or on his own.

40. The applicant agreed he was sufficiently qualified to gain work as a chef in Vietnam that his Australian earned qualifications were highly regarded in Vietnam that he had identified a market opening for western food in Vietnam and there was significant work available in his chosen career path in Vietnam (Df: 86). The applicant did not lead any evidence or provide any information that would lead the Tribunal to think this was not the case.

41. The applicant repeatedly said he wished to remain in Australia and achieve his Advanced Diploma of Leadership and Management. The applicant insisted this would make his employment in an up market restaurant, resort or 5 star hotels more likely. The applicant did not provide any evidence to support this assertion.

42. As an alternative at a later stage in proceedings the applicant indicated he would like to open a restaurant in a shopping centre and sell western food to Vietnamese patrons.

43. The applicant did not provide a business plan, cash flow forecasts, profit margins, growth targets, site location, evidence of contractual negotiations, partnership arrangements, company form or any of the customary documentation or any material that might encourage the Tribunal to conclude there was some substance to the ideas outlined above.   

44. The applicant went onto explain his reluctance to return to Vietnam at this stage revolved around his lack of practical experience as a chef and consequently a lack of skills. The Tribunal does not accept this assertion. The applicant has worked in a sector of the hospitality industry for a lengthy period of time, has undertaken extensive formal study and is now a qualified chef with quite senior management training and exposure.

45. The applicant is eminently employable as a chef or indeed in a more senior position in both Vietnam and Australia. Such employment is the only way to improve his skills set and gain exposure to the likelihood of higher wage employment.

46. The applicant further explained the attainment of the Advanced Diploma in Leadership and Management was about the acquisition of a skill set that might be used at some indeterminate time in the future. The applicant did not lead any evidence or provide any information that suggested there might be a linkage from study or graduation in this Advanced Diploma and work in the hospitality field (either as employee, manager or owner). The applicant did not explain how the most recent achievement of a Diploma in Hospitality Management did not provide an adequate set of skills that would assist in the management or ownership of a hospitality based enterprise in Vietnam.

47. The Tribunal considers that objectively the applicant has more than sufficient skills, knowledge, qualifications and experience to have confidence to commence upon his career as a chef or even embark upon the opening and running of his own restaurant.

48. At the conclusion of proceedings the Tribunal invited the Migration Agent (MA) for the applicant to make submissions.

49. The MA explained the significance of the Tribunal not affirming the decision of the delegate and remitting the review application for reconsideration.

50. In those circumstances achievement of the Advanced Diploma had 2 immediate consequences. Firstly the MA asserted it would lead to the possibility of a better job. The MA did not lead any evidence or provide any information to support this assertion.

51. Secondly the MA submitted the achievement of a student visa would give the applicant the option of applying for a 485 visa over the next 12 months and if granted remain in Australia for a further 2 years or more gaining relevant work experience and improved skills. The MA further explained the decision of the delegate in June 2016 prevented the applicant for applying for a 485 visa onshore and this ability and the pursuit of this option were important to the applicant.

52. The Tribunal turns to consider relevant aspects of Ministerial Direction Number 53 (MD Number 53).

53. The Tribunal has regard for cl.9 of MD number 53.

54. The applicant advised his mother paid all his living expenses and course fees in Australia that he was in regular and extensive communication with her, other members of his family and his friends through the use of various tools of social media and had completed his military service commitments whilst at University. The applicant explained this was a satisfactory arrangement and acted as neither incentive nor disincentive to return to Vietnam. The Tribunal accepts this advice.

55. The Tribunal has regard for cl.11 of MD Number 53.

56. The Tribunal examined the applicant as to the extent of his ties with Australia and is satisfied family and community ties in Australia are minimal and do not present as a strong incentive to remain in Australia.

57. The Tribunal has noted the evidence of the MA and the desire of the applicant to have the option of applying for a 485 visa. The Tribunal could find no evidence of a desire to return to Vietnam in the future. The evidence of the applicant and the MA leads the Tribunal to the view the primary purpose of ongoing study is to achieve a form of residence pursuant to a future application for a 485 visa.

58. The Tribunal finds the applicant is using the student visa program to maintain ongoing residence.

59. The Tribunal has regard to cl.12 of MD Number 53.

60. The applicant is seeking to pursue an Advanced Diploma in Leadership and Management. which has 2 features.

61. Firstly it is largely in a field where the applicant has already obtained a Diploma of Hospitality Management and hence has a useful set of management skills. Secondly it is a generic course and not industry specific or vocation focused.

62. The Tribunal observes that the applicant has already completed the Diploma of Hospitality Management. Hospitality management is a discipline which is more directly relevant to the running of a hospitality establishment than are general VET sector business and management courses because, as its name suggested, hospitality management is directed towards the specifics of successfully managing a hospitality business. The Tribunal considers that the latest study proposal adds little additional incremental value when placed on top of the array of qualifications already achieved, in particular the hospitality management skills already acquired.

1. The applicant did not lead any evidence or provide information that suggests completion of the course will lead to employment or improved employment prospects in Vietnam. The Tribunal considers it more likely the applicant seeks to study in the field of Leadership and Management so that he will be able to pursue the option of remaining in Australia as a resident for a further 3 years.

2. The Tribunal finds the study now proposed to hold limited additional value to the applicant’s future.

3. The Tribunal has regard to cl. 13 and 14 of MD Number 53.

4. The Tribunal has considered the visa and immigration history of the applicant. There is no evidence before the Tribunal that suggests the applicant is in breach of previous visa applications for Australia.

5. In summary the Tribunal finds the applicant does not have a specific plan for business or career opportunities inside Vietnam, is not committed to leaving Australia, intends to prolong an already substantial stay in Australia for a further 3 years or more and proposes further study for the purpose of applying for a 485 visa onshore.

6. The Tribunal has reviewed the decision record, considered the statements of the applicant, noted the lack of study at 573 level soon after arrival in Australia and explanations, observed  relevant course achievements over time and paid particular attention to the oral evidence of the applicant and submissions of the MA.

7. At the conclusion of proceedings the Tribunal repeatedly asked the applicant if he wished to make any submissions, bring any further matters to the attention of the Tribunal or provide further evidence. The applicant considered this offer and declined the request.

   Evidence

8. The Tribunal finds the applicant was not a particularly compelling witness. The applicant at times gave contradictory evidence. The applicant was less than frank about his motivations for coming to Australia and remaining in Australia.  The Tribunal regards significant aspects of the applicant’s evidence as constructed to suit an emerging purpose. The Tribunal finds the applicant to be less than credible.

   Other Matters

9. The Tribunal is not required to uncritically accept any or all of the assertions made by the applicant and it has not done so. As Heerey J observed in Selvadurai v Minister for 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.

10. 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 607:

    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.

11. The Tribunal has considered the circumstances of the applicant as a whole including all of the issues outlined in Ministerial Direction Number 53. The Tribunal has had regard to the applicant’s circumstances in his home country, the applicant’s actual and potential circumstances in Australia, the value of various courses and in particular the Advanced Diploma of Leadership and Management to the applicant’s future and has had regard to the personal circumstances of the applicant and his immigration history

12. 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).

    Concluding paragraphs

13. 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

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

    Mark Bishop
    Member