Nguyen (Migration)

[2020] AATA 5420

Nguyen (Migration) [2020] AATA 5420 (26 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr. Ngoc Anh Tuan Nguyen
Mrs. Thi Lan Phuong Nguyen

CASE NUMBER:  1830190

HOME AFFAIRS REFERENCE(S):          BCC2018/3094609

MEMBER:P. Adami

DATE:26 November 2020

PLACE OF DECISION:  Melbourne, Australia

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

·cl.500.212(a) of Schedule 2 to the Regulations

·cl.500.311 of Schedule 2 to the Regulations

Statement made on 26 November 2020 at 3:08pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa history – plans for business and family ties to home country – member of family unit – child born after application for review made – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 359C(1), 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cls 500.212(a), 500.311

CASE

Hasran v MIAC [2010] FCAFC 40

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 Home Affairs on 25 September 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 16 August 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the primary applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was not satisfied that the primary applicant genuinely intends to stay in Australia temporarily as a full time student.

4. On 30 March 2020, the Tribunal formally wrote to the primary review applicant pursuant to section 359(2) of the Act, inviting the applicant to provide further information to the Tribunal, including information as to his enrolment and being a genuine applicant for entry and stay as a student. The invitation was sent to the primary applicant’s authorised representative, Mr. Brian Quang Dinh of Edunetwork Australia, at the email address provided by the primary applicant in his 15 October 2018 ‘Application for review’. On14 April 2020, the primary applicant sought an extension of time to provide the information sought by the Tribunal. On 15 April 2020, the Tribunal granted an extension of time to provide the information to 15 May 2020. On 1 June 2020, outside the permitted time, the primary applicant filed with the Tribunal a completed Request for Student Visa Information together with other supporting evidence.

5. In his completed Request for Student Visa Information, the primary applicant sought to have a hearing to give evidence and present arguments in support. However, where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).

6. The Tribunal finds that the review applicant did not provide further information within the prescribed time. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3).

7. Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

8. It is appropriate to note 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.

9. The Tribunal has proceeded to make a decision in this application having regard to all the information before it, including the information previously provided by the applicants to the Department and to the Tribunal, and also the out of time completed Request for Student Visa Information and the other evidence filed with it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 genuinely intends to stay temporarily in Australia.

12. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)      of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

13. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, 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.

14. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

15. The Tribunal has read and had regard to the documentation provided by the applicants to the Department and the Tribunal. This includes; the delegate’s Decision Record dated 25 September 2018; his completed ‘Request for Student Visa Information’; his undated Statement of Purpose filed 12 March 2019; 12 March 2019 Application for Student Visa; undated submission filed with the Tribunal 01 June 2020; Birth Certificate issued to Ngoc Phuong Anh Nguyen born in New South Wales in December 2018; Confirmation of Enrolment (COE) issued to the applicant for the Diploma of Hospitality Management which has a course end date of 18 December 2020; COE issued to the primary applicant for the Advanced Diploma of Hospitality Management which has a course start date of 1 February 201 and a course end date of 2 July 2021.

16. On 26 November 2020, the Tribunal obtained a Provider Registration and International Student Management System (PRISMS) search to confirm the applicant was still enrolled as proposed. The PRISMS search indicates that the primary applicant is still studying the Diploma of Hospitality Management and the course end date is 18 December 2020. The primary applicant is thereafter enrolled to study the Advanced Diploma of Hospitality Management which has a course end date of 2 July 2021, as per the filed COE.

17. The applicant is a 46 year old Vietnamese man who initially travelled to Australia on 28 August 2010 on a UL 679 Sponsored Family Visitor visa. The applicant in his submission states that he remained in Australia until 25 November 2010, and thereafter returned home to Vietnam before returning to Australia as a student on 5 February 2014. The delegate in their September 2018 decision proceeded on the basis that the primary applicant had remained in Australia from August 2010 to date of decision and was proposing a stay as a student to at least 03 April 2020. The Tribunal accepts that the primary applicant returned home for over 3 years as stated and has not remained in Australia for approximately 10 years.

18. On 16 August 2018, the primary applicant applied for a Student (Temporary) (Class TU subclass 500) visa, which was refused by a delegate from the Department on 25 September 2018. The second named applicant it the primary applicant’s wife. The Tribunal notes that the primary applicant list his daughter as Applicant 3 on his completed Request for Student Visa Information, however she is not an applicant on the Tribunal file. The Tribunal surmises that this is because Ngoc Phuong Anh Nguyen was born after the application for review was filed with the Tribunal in October 2018. It is the delegate’s refusal of September 2018 which gives rise to the application for review now before the Tribunal. A copy of the delegate’s decision was provided by the primary applicant to the Tribunal at the time of his application for review.

19. The primary applicant arrived in Australia having completed a completed a Bachelor of Information Technology in January 2001. The applicant does not list in his completed Request for Student Visa Information any work history. The Tribunal does not consider that the primary applicant has an employment tie that acts as a significant incentive to return home to Vietnam.

20. At the time of the delegate’s September 2018 decision, the primary applicant was enrolled to study the Certificate IV in Commercial Cookery, which he finished in December 2019. The applicant then commenced studying the Diploma of Hospitality Management which he expects to complete on 18 December 2020. The primary applicant is thereafter enrolled to study the Advanced Diploma of Hospitality Management which runs from 1 February 2021 to 2 July 2021. The applicant states that his career goal in his submission thus, “As I have stated in my Genuine Temporary Entrance letter, my friends have offered me to team up with them for our first restaurant project in our hometown Hau Giang - the heart of Mekong delta. Thanks to time studying at Australian International College, I have gained the knowledge, attributes, skills, and experience of high-level hospitality concepts and operations allowing me to enter this fast-changing global hospitality industry with confidence.”

21. The primary applicant also states in his submission his goal with his studies writing, “With knowledge and experience gained from the cooking courses, I can create dishes that are not only rich in nutrients but also delicious, and I want to spread those to the local when we come back to Vietnam…Hence, I want to run my own business in the future to pursue the ambition mentioned above. The Diploma and advanced diploma of Hospitality Management course is really supportive and necessary for my future goal. In order to smoothly and successfully run the business, I need to know how to manage finances within the budget, monitor work operations, implement and monitor work health and safety practices and other relevant knowledge.”  

22. The primary applicant states in his submission a clear intention to return home writing, “My parents in Vietnam has always been looking for our family to return to Vietnam after I finish my certificates in Australian International College next year. This is the youngest grandchild of my parents, therefore, my daughter and I will absolutely come back to Vietnam to reunite with our beloved family members and relatives. I will work hard to offer the family a comfortable life by developing my career in Vietnam in order to provide our daughter with a good education so that she will have a better future. For our daughter’s future, coming back to Vietnam is the best option.”

23. The applicant The Tribunal considers the currently enrolled Diploma and future enrolment in the Advanced Diploma will add value to the applicant’s future. The course is related to the business studies and Certificate IV in Commercial Cookery already completed by the primary applicant.

24. The Tribunal considers there is value to the primary applicant’s career prospects in completing the Advanced Diploma in Hospitality Management, and thereafter returning home to Vietnam. The primary applicant does not propose study any further study in Australia after the Advanced Diploma, or that he will apply for any further visa of any nature. Indeed, the primary applicant clearly and repeatedly states an intention to return home upon completing the Advanced Diploma in Hospitality Management, and the Tribunal would not have been minded to remit the matter back to the Department without such a clear and repeated intention.

25. The applicant in July 2021, when he expects to complete the Advanced Diploma, will have lived in Australia for approximately 7.5 years. The Tribunal considers the applicant’s desire to complete the Advanced Diploma course and thereafter return home demonstrates a genuine intention to temporarily study in Australia, notwithstanding the primary applicant’s length of stay in Australia.

26. There is no evidence before the Tribunal in relation to the applicant’s circumstances in his home country relative to the circumstances of others there.

27. The applicant states in his completed Request for Student Visa Information that his parents and 2 brothers live in Vietnam, and he has a sister who lives in Australia as an Australian citizen. The applicant states in his completed Request for Student Visa Information that he maintains regular contact with his parents through telephone technology, given his siblings live away from his aging parents. The primary applicant speaks of “filial piety” which acts as an incentive to return home. Given the indications in the material before the Tribunal of an intention not to study further and to depart Australia, notwithstanding the presence of the applicant’s wife and daughter in Australia, the  Tribunal considers that the applicant’s family provide a significant incentive for the applicant to return home.

28. There is no evidence that the applicant has strong community ties such that they would present as a strong incentive to remain in Australia or return home to Vietnam. The Tribunal does not consider that this factor weighs for or against concluding the primary applicant is a genuine temporary entrant. The applicant states that he has no military service commitments that would serve as a significant incentive not to return home. Further, the applicant states that he does not have any political or civil unrest in his home country that may induce him to apply for a student visa to obtain entry into Australia for the purposes of remaining indefinitely.

29. There is no evidence before the Tribunal that he has breached any visa from Australia, or any conditions attached to an Australian visa. There is no evidence that the applicant has been denied a visa to any other country or had a visa to any other country cancelled or considered for cancelation. The applicant has not applied for any other Australia visa where a decision on that application has not yet been made. The Tribunal considers that the applicant’s clear and repeated intention to return home upon completion of the Advanced Diploma persuades the Tribunal that the applicant is a genuine temporary entrant.

30. Based on the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a). For the avoidance of doubt, this matter is to be remitted to the Department with a Direction that the primary applicant meets the criteria on the basis that the primary applicant has a clear study plan; he has continued his studies notwithstanding the delegate’s September 2018 decision; and that he has unambiguously represented to the Tribunal an intention to return home upon completion of the Advanced Diploma of Hospitality Management after July 2021 to carry into effect his career plan.

31. 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

32. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the first named and second named applicants respectively, meet the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212(a) of Schedule 2 to the Regulations.

    ·cl.500.311 of Schedule 2 to the Regulations.

    P. Adami
    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.