Nguyen (Migration)
[2021] AATA 976
•4 March 2021
Nguyen (Migration) [2021] AATA 976 (4 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Van Huy Nguyen
CASE NUMBER: 1915241
HOME AFFAIRS REFERENCE(S): BCC2019/1318400
MEMBER:Amanda Upton
DATE:4 March 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 04 March 2021 at 12:28pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – gap in enrolment – current enrolment – working history in Australia – limited academic progress – changes of courses – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212CASES
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Shoukat v Minister for Home Affairs [2020] FCA 194STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 June 2019 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 15 March 2019. 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 they did not consider the applicant to be a genuine temporary entrant for entry and stay in Australia as a student.
The applicant was assisted in relation to the review by their registered migration agent.
On 20 April 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about:
· his education history overseas;
· his education history in Australia;
· his current course enrolments in Australia;
· previous Australian visa applications he has made;
· his immigration history in Australia and in other countries;
· his work experience in Australia and in other countries;
· his living expenses in Australia;
· his family;
· his property and assets;
· his plans, including job plans, once he completes his proposed course of study; and
· concerns he may have about military service commitments, or political or civil unrest in his home country.
The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 4 May 2020, 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.
On 4 May 2020, the Tribunal received a request for an extension of time to provide the previously requested information. An extension was granted to 11 May 2020.
In his response, in addition to providing a number of documents for consideration, the review applicant indicated that he would not participate in a hearing and that he consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear.
The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal’s reasons incorporate reference to the documentary evidence and other information found on the Tribunal files that have been found to be material to the determination of the issues in the case.[1]
[1] The Tribunal notes that it is not required to make explicit reference to every piece of relevant information before it because not all relevant considerations will be material to the Tribunal’s ultimate determination. See Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, [30]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [49] (Bell, Gageler and Keane JJ); Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16, [88]-[95]; Shoukat v Minister for Home Affairs [2020] FCA 194, [25] (O’Callaghan J); Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
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. The issue in the present case is whether the applicant is a genuine temporary entrant for entry and stay in Australia as a student
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?
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.
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.
Entry and Visa History
The applicant in this case is a Vietnamese man who first arrived in Australia on 21 September 2015 as the holder of a student visa.
Time Onshore
The applicant has returned home once since his arrival for a period of three weeks in November 2019.
Study History
Prior to arriving in Australia, the applicant had obtained a Diploma of Physician Assistance.
Since arriving in Australia, the applicant has completed 3 English courses.
The applicant has been enrolled in but not completed;
· General English x 3
· Certificate III in Commercial Cookery
· Certificate IV in Commercial Cookery
· Certificate IV in Business
· Diploma of Business.
The applicant is currently studying General English and has a proposed future enrolment in a Certificate III in Carpentry and a Diploma of Building and Construction scheduled for completion in December 2022, taking his time in Australia to a period of over 7 years.
The applicant was not enrolled in any course of study for just over a year from March 2019.
Evidence in Support of Application
In support of his application, the applicant has provided;
· Response to s359(2) request made by the Tribunal
· Academic Documents (Vietnamese language)
· Current and future confirmations of enrolment
· The health records for his mother
The Tribunal has considered these documents and the evidence given by the applicant in reaching its decision.
Applicant’s circumstances in their home country
The Tribunal has had regard to the applicant’s circumstances in Vietnam as follows;
Reasons for not studying in home country
·Australia has a quality education system
·Australia is not too far from Vietnam
·In Vietnam there is high demand for graduates with knowledge from developed countries.
·Improved English language skills
Personal ties to home country
·The applicant’s parents and brother live in Vietnam. He keeps in contact with them by calling 1-2 times a week.
·The applicant claims no community or personal ties to Australia or Vietnam.
·The applicant has no significant property or assets in Vietnam. He has a motor vehicle in Australia.
·The applicant has returned home once since his arrival in Australia
Economic Circumstances in Australia as incentive not to return home
·The applicant currently works in a self-employed capacity installing flooring
Military service or civil/political unrest concerns in home country
·The applicant raises no such concerns.
The Tribunal is unable to accept that applicant’s assertion about study in his home country as compared to that in Australia, it is a bare claim made without evidence. Whilst it is accepted that studying in an English speaking country should inevitably improve English skills, the applicant has not provided any specific details establishing benefits to be gained by studying the proposed course in Australia as opposed to studying in his home country considering the financial outlay required to study in Australia. The Tribunal is unable to conclude that the applicant has considered study in his home country or that there are genuine reasons for studying in Australia as opposed to his home country.
The Tribunal acknowledges that the applicant’s family reside in Vietnam however the Tribunal finds that these family ties do not present as a significant incentive for the applicant to return to his home country in and of themselves.
The Tribunal finds that the applicant has economic incentive to remain in Australia due to his strong working history in Australia particularly as the Tribunal does not have evidence of the applicant having a work history in his home country.
The Tribunal does not consider that the applicant has strong economic or financial ties that constitute an incentive to return to his home country.
Applicant’s potential circumstances in Australia
The Tribunal has had regard to the applicant’s potential circumstances in Australia, based on the evidence provided at the hearing, as follows;
Applicant’s ties with Australia
·The applicant has provided no information as to family or social ties that he has to Australia
Evidence visa program being used to circumvent the migration program
·The applicant has enrolled in but not completed a significant number of disparate courses over a period of 5 years. He has not exhibited the academic progress one would expect from a genuine student over this period of time.
·The applicant’s proposed course of study is of a different subject to his previously obtained qualifications. The applicant has provided no explanation for the change of career path.
Applicant’s knowledge of living in Australia, their intended course and level of research into their intended course.
·The applicant considers his chosen course to be practical.
·The education provider has a flexible timetable and the course will provide him with sufficient skills for his future.
On the basis of the information provided, the Tribunal is unable to conclude that the applicant has undertaken any genuine research into his proposed course, course content, education provider or educational objectives as would be expected of a genuine student who is undertaking a course for a specific purpose .
The Tribunal is concerned that the applicant has been onshore for a period of nearly 5 ½ years and has not demonstrated the academic progress that would be expected over this period of time. The Tribunal considers that this is conduct that is not consistent with the claim of being a genuine student in Australia for the primary purpose of study and academic progression. The Tribunal considers that this conduct is indicative of the applicant using the student visa program to circumvent the usual migration processes.
Value of the course to the applicant’s future
The Tribunal has had regard to the value of the course/s of study to the applicant’s future as follows;
Will the course assist the applicant to obtain employment or improve employment prospects?
·The applicant wants to establish his own business in construction, particularly timber flooring.
·The applicant considers that international qualifications will assist build his brand and be competitive.
The Tribunal does not consider that the applicant has established the value of the course to his future. The Tribunal is unable to accept that the course is of value as there is not before it any detailed or compelling evidence as to the applicant’s plans or goals against which to assess this fact.
The Tribunal is unable to conclude that there is a connection between the applicant’s stated career goals and the current or proposed course of study such that it would make the expense of international study worthwhile or of value to him.
Whilst the Tribunal accepts that study in an English speaking country will inevitably improve English skills, the Tribunal notes that the applicant has now been onshore for 5 ½ years and is does not have further material before it to indicate how the applicant’s current and proposed course of study will assist him to achieve his goal in comparison to a qualification which could be acquired domestically.
Immigration History
The Tribunal has had regard to the applicant’s immigration history. There is no evidence of other visa refusals or cancellations. The Tribunal draws no inferences, adverse or otherwise as to the applicant’s immigration history.
Any other relevant matters
There is no evidence further relevant evidence before the Tribunal for consideration.
The Tribunal considers that an applicant who is a genuine temporary entrant in Australia for the purpose of studying and to progress academically will be able to demonstrate circumstances that evidence a genuine intention to remain temporarily as a genuine student.
The Tribunal acknowledges that these things will be different in each individual case and may change over time with respect to an individual applicant. The Tribunal considers that the applicant has failed to establish such circumstances and as such the Tribunal does not accept the applicant’s claim to be a genuine temporary entrant
Considering the above individually and collectively, 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).
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 appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Amanda Upton
MemberAttachment – 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.
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