Nguyen (Migration)

[2018] AATA 702

Nguyen (Migration) [2018] AATA 702 (20 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duc Hoa Nguyen

CASE NUMBER:  1612627

DIBP REFERENCE(S):  BCC2016/1173181

MEMBER:Mara Moustafine

DATE:20 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 March 2018 at 11:32pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 – Previously held two 573 visas – Did not undertake any tertiary education – Shifted between courses – Study plans are inconsistent with the applicant’s educational and employment background – No job offer in home country – Not a genuine temporary entrant

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994 Schedule 1 Item 1222 Schedule 2 cl.572.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant arrived in Australia on 17 May 2013 on a TU subclass 573 Student visa valid until 22 May 2015. On 15 March 2016 the applicant applied to the Department of Immigration for a TU 572 Student visa to undertake a package of courses in Dental Technology and Leadership and Management. The delegate decided to refuse to grant the visa on 26 July 2016.

3. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

4. According to the Department decision record, a copy of which the applicant provided to the Tribunal for the purposes of the review, the delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because he was not satisfied that the applicant genuinely intended to stay a temporarily in Australia. Among other things, the delegate was concerned that the applicant’s proposed course was inconsistent with his educational and employment background and questioned how it may benefit his future employment and remuneration prospects in Vietnam. He also expressed concern that the applicant had held two 573 visas without progressing to the  higher education level and consecutively changed courses that were unrelated to his education background. He noted that the applicant had only departed Australia for 17 days since his arrival in Australia.

5. The applicant applied to the Tribunal for a review of this decision on 12 August 2016.  He was represented in relation to the review by his registered migration agent.

   On 20 November 2017, the applicant’s migration agent provided a submission and documents in support of his case, including Confirmations of Enrolment (COEs) in Certificate III in Dental Assisting (29/03/2016 to 8/11/2016) and Certificate IV in Dental Assisting (10/11/2016 to 30/03/2017); Diploma of Dental Technology (03/04/2017 to 02/04/2018) and Advanced Diploma of Leadership and Management 12/05/2018 to 19/01/2019) at the West Australian Institute of Further Studies (WAIFS); certificates of accomplishment from PIBT in Academic English; and completion certificates and records of results for Certificate III and IV in Dental Assisting from WAIFS. On 1 December 2017 the agent emailed information downloaded from the Internet regarding Dental Services price in Vietnam; Dental Treatment price in Vietnam; Evidence that Electrical Engineer earns lesser than Dental Workers in Vietnam; Shortage of Dental Workers in Vietnam; and Vietnam’s lack job opportunity for Electrical Engineers.

6. After the hearing on 5 December 2017 the migration agent emailed to the Tribunal additional documents, including a letter from WAIFS which confirmed that the applicant was currently studying the Diploma of Dental Technology and enrolled in the Advanced Diploma of Leadership and Management which he was due to complete in January 2019; and an online record of his course units results to date. 

7. The applicant appeared before the Tribunal by teleconference between Sydney and Perth on 5 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

10. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

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

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

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

    (iv)any other relevant matter; and

    (b)     …

11. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

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

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

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

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

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

13. At the hearing, the Tribunal discussed with the applicant the reasons his Student visa had been refused in the context of the Genuine Temporary Entrant criterion, noting that the primary purpose of a Student visa was for an applicant to study and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant his circumstances in Vietnam and Australia, his immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.

14. The applicant told the Tribunal that he came to Australia on a TU 573 visa in 2013 to study Bachelor of Engineering after completing a vocational education course in Engineering in Vietnam and working as an automotive technician in Korea. He wanted to improve his English and after completing his degree in Australia, return to Vietnam to work in the headquarters of an energy company as his previous qualifications only enabled him to work in a local energy company. However, after completing two English courses, he did not proceed with the Engineering degree. He claimed this was because his father, who worked in an energy company in Vietnam, told the applicant that he would find it hard to get a high level job in an energy company in Vietnam and suggested that he try another career. The applicant then changed to study Hotel Management as he thought he could work in a resort or five star hotel. He claims he enrolled in a Diploma of Hospitality in February 2015 and completed three semesters but then decided not to study this course further as he found he was more suited to technical work.

15. The applicant claims that he found out through online research that there were many job opportunities in dental technology in Vietnam, so decided to become a dental technician and enrolled in the package of dental technology courses in March 2016. Since then, he has completed Certificates III and IV in Dental Assisting, for which he provided completion certificates and records of results. He is currently studying a Diploma of Dental Technology which he is due to complete in April 2018. A letter from his college to this effect and unit results to date were provide to the Tribunal after the hearing.  

16. As discussed with the applicant, the Tribunal is concerned that, since arriving in Australia as a student in 2013, he has only completed two English courses and two Vocational Education and Training courses in Dental Assisting, which the Tribunal does not consider to be an adequate level of academic progress for a student in this time frame. If he were to continue with his proposed courses, he will have been in Australia for over six years by the time he completes the Diploma of Leadership and Management. The Tribunal further notes that the applicant has not undertaken any courses at the tertiary education level, for which his TU 573 visa was granted under streamlined visa processing arrangements, breaching the conditions of his visa.

17. The Tribunal notes that the applicant has shifted from one course to another without a career plan and gave no indication of having any concrete employment prospects in the dental technology field on his return to Vietnam. Although he spoke earlier in the hearing about the many job opportunities available in the dental sector in Vietnam, he made no mention of these when asked if he had a job offer in Vietnam, but responded that, as his father still had a position in an electricity company, he could replace him at any time. This appears to undermine the stated purpose of his coming to study in Australia.  

18. In discussion of his circumstances in Australia and Vietnam, the applicant told the Tribunal that he had been working part time in a mobile phone shop for over two years as a mobile phone technician, earning around $300 per week for 10-20 hours work. By contrast he does not have a job offer in Vietnam. While the applicant’s parents live in Vietnam, where he last visited in 2015 and he claimed that his father wants him to return as soon as possible, the Tribunal is not satisfied that this in itself provides an incentive to return to Vietnam. The Tribunal notes that the applicant’s brother lives in Korea, where he himself worked or two years, and his father has visited him in Australia.

19. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

20. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Mara Moustafine
    Member