Nguyen (Migration)

[2018] AATA 778

Nguyen (Migration) [2018] AATA 778 (19 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Cuong Nguyen

CASE NUMBER:  1620329

DIBP REFERENCE(S):  BCC2016/2208362

MEMBER:Warren Stooke AM

DATE:19 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 19 March 2018 at 4:53pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) –Seeking to gain permanent residency status – Studied several unrelated courses – inculcated himself into the Australian society – No significant incentivise to return home – Not a genuine temporary entrant

LEGISLATION
Migration Act 1958, ss 65, 359AA, 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 and Border Protection 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 29 June 2016. The delegate decided to refuse to grant the visa on 10 November 2016. 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).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations.  The delegate found that the applicant was not a genuine temporary applicant on the basis that the applicant had been in Australia for almost 9 years, had changed courses from the Higher Education sector to the VET sector, pursued courses that were not related to the primary degree qualification and had not demonstrated a strong connection with his home country.

4. The applicant appeared before the Tribunal on 14 March 2018 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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)     …

9. 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.

10. 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.

11. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

12. At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate’s decision of 10 November 2016 and that he understood the content of the decision.

13. The applicant provided the Tribunal with an explanation, as to his understanding for the refusal of the visa application by the delegate and acknowledged that the reason was that the delegate did not accept that the applicant met the criteria required for the grant of a visa. He stated that the delegate believed he was not a genuine student with the following comment: “I was not genuine student based upon history of my study”.

14. The Tribunal provided the applicant with a copy of the Provider Registration and International Student Management System (PRISMS) record relevant to the applicant, pursuant to s359AA and allowed the applicant time to peruse the document prior to responding to questions from the Tribunal. In this regard, the applicant read the document and indicated to the Tribunal upon completion of that task that he was available to respond to questions concerning the document.

15.    The applicant arrived in Australia on 5 July 2009  and as noted in the delegate’s decision, Departmental records indicate that since the applicant’s initial arrival onshore he has held either a student visa, a Graduate Work Scheme (Class VC Subclass 485 and an associated bridging visa.

1. At time of application, the delegate’s decision notes that the applicant was enrolled to undertake a Certificate III in Hospitality, Certificate IV in Hospitality, Diploma of Hospitality and an Advanced Diploma of Hospitality Management and that at time of application, there was insufficient information to satisfy the Case Officer that the applicant met the requirements for the grant of a Student (Class TU subclass 572) visa.

2. On 11 July 2016, an email was forwarded to the applicant’s Migration Agent, inviting the applicant to comment on his circumstances in relation to the Genuine Temporary Entrant criterion and provide other documentation in relation to evidence of study. A time period of 28 days was given for response.

3. The applicant responded to the invitation on 8 August 2016 and provided a statement addressing the genuine temporary entrant criteria and academic transcripts.

4. The Tribunal established with the applicant that the following courses of study had been completed since the applicant arrived on shore on 5 July 2009:

Course	Start Date	Completion Date	Status
General English	7 July 2009	11 December 2009	Finished
Diploma of Accounting	25 January 2010	30 June 2011	Finished
Bachelor of Business (Accounting)	30 January 2012	30 June 2014	Finished
Advance Diploma for Academic Study (EAP) (Upper Intermediate to Advance)	3 November 2014	30 June 2015	Finished
Advanced Diploma of Translating	8 February 2016	30 June 2016	Finished
Certificate III in Hospitality	11 July 2016	11 December 2016	Finished
Diploma of Leadership and Management	28 July 2017	1 July 2018	Studying

In addition, the record showed that the following courses had been selected and were either not completed or cancelled:

Course	Start Date	Completion Date	Status
Bachelor of Information Technology	20 July 2015	30 June 2018	Not commenced
Certificate IV in Hospitality	30 January 2017	2 July 2017	Not completed
Diploma of Leadership Management	8 February 2017	17 December 2017	Cancelled
Diploma of Hospitality	17 July 2017	1 July 2018	Cancelled

1. The applicant provided evidence that he is currently studying a Diploma of Leadership and Management, which commenced on 28 July 2017 and is due for completion on 1 July 2018. The applicant also stated to the Tribunal that the course was previously suspended when it was undertaken in early 2017.

2. The Tribunal sought evidence form the applicant in relation to the value of the current course being undertaken and the applicant had difficulty in providing to the Tribunal the title of any textbook utilised for the course and any of the specific content. The applicant advised the Tribunal that a leader can inspire and that the course was about managing risk. This was the full extent of an explanation of the subject matter of the course.

3. Further, the applicant advised the Tribunal that he undertook studies in hospitality, as his mother thought with their café business in Vietnam it would be helpful to study a Certificate III in Hospitality.

4. The Tribunal asked the applicant to explain why the course undertaken could not be undertaken in Vietnam and he advised that Australia has a better education system.

5. The applicant gave evidence that he was not sure what he will do when he finishes the course. The applicant advised the Tribunal that he had returned to Vietnam for a period of 7 days since the delegate’s decision, which stood at 229 days when the delegate made the decision.

6. The applicant advised the Tribunal that he lives in Murrumbeena with a partner, with whom he has been with for 5 years. The partner is studying finance at Monash University.

7. The applicant has Australian resident friends, whom he met as a co-worker in his part-time job.

8. The applicant gave evidence that he has a part-time job undertaking coding for an English language testing course and provides support to students undertaking the assessment, which is similar to the IELTS test and was confirmed to be the Pearson Test of English Academic (PTE Academic). The applicant advised that he is remunerated on a commission basis of 40% of the student fee when recruited to participate in the course. He currently works 20 hours per week.

9. The applicant gave evidence that he has no family in Australia and has parents and a brother in Vietnam. The applicant advised that his father is retired but formerly operated a spa and café business until his father had a stroke.

10. In terms of aspirations for the future, the applicant gave evidence that he used to want to be an accountant or book-keeper and is now keen on computer programming, having taught himself those skills. He is currently involved in customer service and is a PET coach.

11. The applicant was asked if he expected any difficulties in assimilating back into Vietnam and responded – “Not sure, I think I am fine. I don’t think I would have any problem”.

12. The Tribunal asked the applicant whether there was any reason that would preclude the applicant from returning to Vietnam, including military service. The applicant responded no and stated that he still has friends there and that that he did not think so, in relation to military service.

13. The Tribunal asked the applicant if it was his motivation to remain in Australia permanently and he responded – “I would like to have permanent residency”.

    REASONS

14. The Tribunal is satisfied that the applicant is not a genuine temporary entrant to Australia for the following reasons:

    a.The applicant arrived in Australia in July 2009 and undertook a Bachelor of Business (Accounting) that led to his eligibility to obtain a 485 visa. Post this period of study and availability to work on a 485 visa, as a graduate, the applicant then proceeded to undertake a series of unrelated VET courses in Translating, Commercial Cookery, Hospitality and Leadership and Management. The Tribunal is not satisfied that the dramatic change in course studies from degree status in Accounting to Translating, Cookery and Hospitality is commensurate with the expected behaviour of a genuine student. It is the Tribunal’s view, that the applicant is using the student scheme to circumvent other programmes specifically available for migration and residency purposes. This view was gleaned from the specific statement in evidence from the applicant regarding when he will return to Vietnam and his response was “I have not thought about it”;

    b.The applicant, when probed as to the content of the current course of study in Leadership and Management was unable to articulate details of the scope and details of the course, which indicated to the Tribunal that the course was being attended for other reasons than the academic value;

    c.The Tribunal identified that between 30 June 2014 and 30 November 2014 and 11 December 2016 and 28 July 2017, the applicant did not undertake any studies, which is inconsistent with the expectations of a genuine student;

    d.The applicant’s initial purpose for study in Australia has been achieved, with degree status, yet the applicant continues to remain post that initial purpose without any clear view as to when he will return to Vietnam and a behaviour whereby he continued to engage in spurious VET courses that had no apparent value to his future or complementation to his degree status in accounting;

    e.As identified by the delegate’s decision, the applicant has remained onshore for 229 days, plus 7 days, since the delegate’s decision. This in the Tribunal’s view is a significant period of time and does not demonstrate a strong tie with the homeland;

    f.The applicant has not expressed any view of when he proposes to return to his home country, which one would expect to be upon completion of the current course, however, this form of response was not given but rather a vague view that he had not thought about it. This is not the expected response of a genuine temporary entrant.  

15. The Tribunal is concerned that the applicant has inculcated himself into the Australian society and that there is no significant tie that would encourage the applicant after almost  9 years to return to his home country, despite the fact that there are no stated reasons to preclude the applicant from returning to his home country, which was confirmed in evidence. In this regard, the applicant stated in evidence that permanent residency was his motivation, which reinforced the Tribunal’s concern.

16. The applicant confirmed to the Tribunal that there was no reason that would preclude the applicant from returning to Vietnam. As such the Tribunal is satisfied that there are no matters arising from Direction 53. The Tribunal is satisfied that no factors arise in relation to Direction 53, which would require specific consideration by the Tribunal over the weight proportionately applied by the delegate on this aspect of consideration.

17. Given the applicant’s personal circumstances, immigration history, the lack of value of the course to the stated future goals and the comparatively greater economic and employment opportunities in Australia, the Tribunal finds that the applicant is using the Student visa program to circumvent the intentions of the migration program.

18. The Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student and that the applicant intends to stay in Australia temporarily. In combination, the history of the transition to and from the student visa streams, the extended period of stay in Australia, and the periods of non-study when that opportunity was available, the Tribunal supports the delegate’s decision that the applicant’s Student (Temporary) (Class TU) visa refusal should be affirmed.

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.

    Warren Stooke AM
    Member