Ly (Migration)

[2020] AATA 1202

Ly (Migration) [2020] AATA 1202 (29 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thien Vy Ly

CASE NUMBER:  1726643

HOME AFFAIRS REFERENCE(S):          BCC2017/2507033

MEMBER:Steven Griffiths

DATE:29 January 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 29 January 2020 at 8:50am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – limited academic progress – motivation issues since refusal decision – course enrolments and cancellations – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 360
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 and Border Protection on 12 October 2017 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 14 July 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.

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).

4. On 24 October 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide all relevant information about the course(s) of study he is undertaking and his entry and stay in Australia as a student in writing. The invitation was sent to the applicants registered migration agent, Mr. Mitch Simmons, of Tern Visa and Migration Lawyers, by email [email protected] and advised that, if the information was not provided in writing by 7 November 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. On 29 October 2019 the Tribunal wrote to the applicant inviting him to a hearing, pursuant to s.360(1) of the Act, scheduled for 17 December 2019 and providing the opportunity for any additional information that he may wish to rely upon to be provided by 10 December 2019.

6. The Tribunal notes a response to the s.359(2) of the Act request for information was received on 6 November 2019. 

7. On 17 December 2019 the applicant and his migration agent did not attend the Tribunal for the invited hearing, with the Tribunal noting no request for postponement had been received.

8. On 17 December 2019 the Tribunal advised the applicant of a decision to dismiss the applicant due to non-attendance.

9. On 18 December 2019 the migration agent confirmed with the Tribunal that the invitation to attend the hearing had been inadvertently deleted, with the migration agent accepting responsibility and seeking to have the hearing reinstated.

10. On 23 December 2019 the Tribunal accepted the request for the hearing to be reinstated, with a notice being issued to the applicant inviting him to a hearing, pursuant to s.360(1) of the Act, scheduled for 28 January 2020.

11. The applicant appeared before the Tribunal on 28 January 2020 to give evidence, respond to questions and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

12. The applicant was assisted by his registered migration agent, who attended the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. The Tribunal notes the delegate’s decision was based around compliance with cl.500.212 of the Regulations, being if the applicant was a genuine temporary applicant for entry and stay as a student.

16. Clause 500.212 states the following must be satisfied:-

    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.

17. 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, which is attached to this decision, 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.

18. 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.

19. The Tribunal has read and had regard to information provided by the applicants to the Department (comprising 61 folios). The Tribunal has also read and had regard to the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant with his application for review.

20. The Tribunal has read and had regard to information provided by the applicant to the Tribunal on 6 November 2019 as a response to the s.359(2) of the Act request for information, which includes:-

    (a)He arrived in Australia in July 2013

    (b)He has returned to Vietnam three times, totalling 95 days, travelling in May 2014, February 2015 and December 2016.

    (c)He was on a Student 573 Higher Education visa from June 2013 to August 2017.

    (d)He completed CELUSA, Academic English, in 3 months to June 2015, with a Bachelor of Business (International Hotel Management) commented in June 2015, but not completed and commenced a Diploma of Hospitality Management in October 2019 with a March 2020 completion date.

    (e)He has worked part-time at a restaurant as a cook / kitchen hand since June 2015.

    (f)He has yearly living costs of $ 7,680.

    (g)He last saw his parents and sister in January 2017, with contact 3 to 4 times per week.

    (h)He completed a Certificate lll in Commercial Cookery and a Certificate lV in Commercial Cookery in 2018.

    (i)He is currently enrolled, providing an Australian Government, Department of Education Confirmation-of-Enrolment for a Diploma of Hospitality Management. 

21. The applicant is a 24 year old citizen of Vietnam, who arrived in Australia on 20/7/13 on a Higher Education 573 visa until 12/8/17. On 18/7/17 he was placed on a bridging visa.

22. The Tribunal notes the Decision Record of the delegate refers to the intention, at the time of the visa application, of the applicant seeking to stay in Australia to complete an Advance Diploma of Hospitality Management within 15 months.

23. The Tribunal notes the Advance Diploma of Hospitality Management was not detailed on the response to the s.359(2) of the Act request for information as having been a course of study undertaken by the applicant.

24. The Tribunal notes, from the oral evidence, the applicant did not complete the Advance Diploma of Hospitality Management, with the oral and documented evidence indicating that he did complete the Certificate lll of Commercial Cookery and Certificate lV of Commercial Cookery components of the course in 2018, while unable to confirm the month of the year.

25. The Tribunal notes the applicant provided oral evidence of reading the Student Visa refusal decision of October 2017 of the Delegate and accepted the statements made in the decision as his history of course enrolment and cancellations, with the completed course being English language related and this was by June 2015, with no full course completions in the 4.5 years following, and places weight on this in considering the genuine study intent of the applicant.  

26. The Tribunal notes the applicant in oral evidence confirmed that with his student visa being refused in 2017 he was “in limbo”, “did not have any motivation” and “could not focus on his studies” as reasons for not completed the Advance Diploma in Hospitality Management, and places weight on this in considering the genuine study intent of the applicant.

27. The Tribunal notes the applicant in oral evidence noted that he came to Australia in 2013 when he was 19 years old, spoke no English, did not realise the importance of studying hard to complete course subjects and moved from New South Wales to South Australia for better opportunities.  

28. The Tribunal notes the oral evidence of the applicant that by completing his studies in Australia he expects to have a higher wage earning potential.

29. The Tribunal notes, from the oral evidence of the applicant, of his desire to complete the currently enrolled Diploma in Hospitality Management course in March 2020, and to then seek a Temporary Graduate 485 visa and undertake paid work experience in Australia for 18 months, following which he will return to Vietnam at a work opportunity in a hotel chain provided to him by a friend of his mother, and places weight on this in considering the genuine study intent of the applicant.  

30. In accordance with the ministerial direction, the Tribunal asked the applicant of any circumstances in Vietnam that may induce him to apply for a student visa as a means of remaining in Australia indefinitely. The applicant provided oral evidence to the Tribunal that there are not any reasons why he cannot return to Vietnam and that he does not have any issues concerning military service, political or civil unrest.

31. There is no particular evidence regarding the applicant’s circumstances in his home country relevant to others in that country and the Tribunal makes no findings concerning the applicant in that respect.   

32. 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.

33. 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).

34. 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).

35. 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.

36. 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

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

    Steven Griffiths
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.