Nguyen (Migration)

[2019] AATA 911

Nguyen (Migration) [2019] AATA 911 (4 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Diem Phuc Nguyen

CASE NUMBER:  1714714

HOME AFFAIRS REFERENCE(S):           BCC2017/935840

MEMBER:Mark Bishop

DATE:4 January 2019

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 January 2019 at 12:06pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa –genuine temporary entrant criterion – not enrolled in a course of study now– a significant incentive to stay in Australia –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211, 500.212, 500.218
Education Services for Overseas Students Act 2000

CASES
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 Immigration and Border Protection on 19 June 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 9 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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) because the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a history of the applicant’s immigration, visa and study history in Australia. The decision record contained extracts from the applicant’s PRISMS record.

5. The Tribunal wrote to the applicant on 13 August 2018 requesting information under s.359(2) of the Act in the following terms:

   ·As you applied for this visa on the basis of undertaking a course of study in Australia, it is a requirement for the visa that you are enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.

   ·Accordingly, you are now invited to give, in writing, information about your proposed course(s) of study and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information questionnaire attached with this letter. The information requested should be given by completing the attached questionnaire and returning it to us.

6. The Tribunal advised the information should be provided by 27 August 2018 or the applicant had the right to seek an extension of time. The applicant did not respond within time and did not request a further extension of time.

7. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

8. At this point is appropriate to highlight 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. In these circumstances, the Tribunal has decided to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department.

10. The applicant did not seek to challenge any of the findings of the delegate.

11. The Tribunal resolved the review application on the papers.

12. For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.

    Genuine applicant for entry and stay as a student (cl.500.212)

13. 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.

14. 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?

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

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

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

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

16. 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.

17. The applicant provided a written statement to the Department (Df: 125-143). The applicant provided supporting documentation to the Department.

18. The applicant did not provide a GTE Statement to the Tribunal.

19. The applicant did not provide a written response to a s.359(2) Request for Student Visa Information.

20. The applicant did not provide a current Confirmation of Enrolment (COE) or proof of enrolment in a course of study to the Tribunal.

21. Clause 500.2 of Schedule 2 to the Migration Regulations relevantly provides that cl.500.211 and cl.500.215 are primary criteria and must be satisfied by at least one member of the family unit. These criteria must be satisfied at the time of the decision.

22. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

23. 'Course of study' is relevantly defined in cl.500.111 of the Regulations as a 'full-time registered course'. 'Registered course' is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

24. The applicant provided COE’s for enrolment in a range of courses in the period August 2012 until November 2017. The applicant did not provide a COE in any course after November 2017. In a written statement to the Department (Df: 143) the applicant advised she wished to study a Bachelor of Business (Community Services Management) at Stott’s College from 27 July 2016 until 2 November 2018. The delegate made a finding enrolment in this course was cancelled by the education provider (Tf: 16). The applicant did not challenge this finding of the delegate. There is no proof before the Tribunal the applicant holds a COE or is currently enrolled in a course of study.

25. Accordingly, there is no evidence before the Tribunal that the applicant is now enrolled in a course of study. Therefore the Tribunal is not satisfied that at the time of this decision the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

26. The applicant had not provided any information, documentation, submissions or supporting details of any kind to the Tribunal. The only information before the Tribunal is the material on the Departmental file and a copy of the decision record. There is a limited amount of information before the Tribunal. The Tribunal has considered all the above information

27. As outlined at paragraph 17 above the applicant provided a GTE Statement and relevant supporting documentation to the Department. The Tribunal has considered all this material. The decision record outlines the applicant’s study history, visa history and migration history whilst the holder of successive student and bridging visas in Australia. The delegate made a series of findings. The applicant did not seek to challenge any of these findings before the Tribunal.

28. The applicant was packaged to study General English and a Diploma of Business followed by Bachelor of Business. She completed General English, some units in a Diploma of Business, a Diploma in Beauty Therapy and a Diploma of Management in April 2014. The delegate made a finding the applicant did not commence her Bachelor of Business. She continued to study a Certificate IV followed by a Diploma whilst holding a TU-573 visa. Since initial arrival onshore she has held either a Student visa, or associated bridging visa.

29. The applicant advised she proposed to undertake a Bachelor of Business (Community Services Management) which was scheduled to conclude in November 2018 bringing her stay in stay in Australia to almost 8 years. The applicant failed to provide any proof of academic progress in this Bachelor of Business. The Tribunal is not aware if the applicant commenced the course, complied with course requirements or has completed and graduated from this course. 

30. The primary objective of a Student visa holder/international student in Australia must be to study a registered course and progress academically. The Tribunal notes since her initial arrival in Australia she has completed only courses at the Vocational Education Sector level. She does not seem to have made significant progression or achieved a reasonable completion level for a student whose primary purpose for being in Australia is to study and progress academically. Her study history shows lack of any clear direction and her Genuine Temporary Entrant statement (GTE) to the Department shows an absence of detailed information about the relevance of the courses to her employment future.

31. In terms of the value of the courses to her future, including remuneration and career prospects in Vietnam, while the Tribunal takes into consideration claims that she will able to use her business skills in order to return home and work in the beauty industry in Vietnam, the applicant failed to establish that any such prospects exist on the basis of her combined previous and current study choices.

32. The Tribunal has taken into account economic circumstances in the home country relative to potential economic circumstances in Australia. Given the disparity in the economic circumstances between Vietnam and Australia, the Tribunal cannot be satisfied that the applicant has significant incentive to return to Vietnam. She has been unable to demonstrate substantial economic ties or personal assets in her home country which diminishes her incentive to return to Vietnam. The Tribunal is concerned that her intention to live in Australia may be motivated by factors other than study.

33. The Tribunal has considered the applicant’s personal ties to Vietnam. The applicant advised she was not married and had her father, mother, and siblings in Vietnam. While the Tribunal accepts that the applicant may have family ties to Vietnam, given the lengthy period of stay to date and uncertainty as to future intention because of failure to respond to Tribunal requests for information concerning intended period of future stay in Australia, the Tribunal is not satisfied that these ties represent a significant incentive for the applicant to return to Vietnam.

34. The Tribunal has considered the value of these courses (including possible enrolment and completion of a Bachelor of Business as outlined in a written submission to the Department) to the applicant’s future. The Tribunal has taken into account comments and supporting documents. For future employment, the applicant has have stated she is hoping to work in the beauty industry. Whilst employment and remuneration may improve slightly due to completion of the courses she has nominated to study, she has not demonstrated any clear and substantial improvement arising from the study that will outweigh the significant time and monetary commitment this course would require. Therefore, the Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to her future.

35. The Tribunal has considered as to whether there is any other relevant matter and finds that no other matter is relevant to the assessment of the applicant’s intentions to stay in Australia temporarily. The Tribunal has considered all of the information provided by the applicant in support of her application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding her circumstances in her home country, potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters are sufficient to demonstrate that she is a genuine temporary entrant.

36. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

    Conclusion on cl.500.212

37. 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.

38. 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

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

    Mark Bishop
    Member