NHAM (Migration)

[2019] AATA 2254

NHAM (Migration) [2019] AATA 2254 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Duc Phu Nham

CASE NUMBER:  1719099

HOME AFFAIRS REFERENCE(S):           BCC2017/2189812

MEMBERs:M. Edgoose (Presiding)

D. Shirrefs

DATE OF ORAL DECISION:  4 March 2019 at 12.01pm (Vic. time)

DATE OF WRITTEN STATEMENT:         3 April 2019

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 03 April 2019 at 10:45am

Statement made on 03 April 2019 at 10:54am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – stated intention to apply for work visa – travel history – incentive to return to home country – economic circumstances of the applicant – multiple courses commenced and cancelled – relevance of studies to employment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359, 359AA, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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 8 August 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 June 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 intends genuinely to stay temporarily in Australia.

4. The Tribunal sent the applicant an invitation to provide information (the s. 359(2) request) pursuant to s. 359(2) of the Act, on 17 January 2019. The applicant provided a response to the s.359(2) request on 30 January 2019 (the s.359(2) response). The applicant appeared before the Tribunal on 4 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Thien Ho, the applicant’s employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The Tribunal gave its decision on the review at the conclusion of the hearing held on 4 March 2019.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 intends genuinely to stay in Australia temporarily.

8. 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?

9. 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.

10. 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.

    Background and applicant’s immigration history

11. The Tribunal has considered clause 13 and 14 of Direction 69 with respect to the applicant’s immigration and travel history.

12. The applicant first arrived in Australia on 10 August 2011 on a Student (Temporary) (class TU) visa in the Higher Education Stream.  The Tribunal was not provided with any evidence whether the applicant had made any prior applications for an Australian visa before applying on 21 June 2017.  The Tribunal accepts the evidence of the applicant in this regard.

13. The applicant gave evidence that he had no other current visa applications under consideration.  The Tribunal accepts the evidence of the applicant in this regard.

14. The applicant gave evidence that he intended to apply for a workplace visa if he was able to and this review was not in his favour. The Tribunal accepts the evidence of the applicant in this regard.

15. The delegate noted in the department’s decision, and the applicant confirmed in his s. 359(2) response, that he had only returned to his home country once, for a period of 34 days, during the period between his first arrival and the date of the Hearing. In addition, the applicant gave evidence that he had visited Singapore for a three day period for a holiday during exams. The Tribunal accepts this evidence as to the applicant’s travel during his period of stay in Australia.

16. The applicant has now been in Australia for 71/2 years.  By the time he completes the course he is currently enrolled in that will have extended to almost eight years.  At the time of this decision he has only visited his home country once.  The amount of time the applicant has spent in Australia is difficult to reconcile with the applicant’s claim to be a genuine temporary entrant.  The Tribunal is concerned that the applicant’s travel history is more consistent with an intention to use the temporary visa as a means for maintaining ongoing residence.  The Tribunal is fortified in this view by the evidence of the applicant that he intends to apply for, and hopefully obtain, a workplace visa in future and also with the evidence of Dr Tien Ho, the applicant’s employer, that he would offer the applicant ongoing full time employment as a restaurant manager if he could get a suitable visa or work conditions.

17. The Tribunal is further fortified in this view by the applicant’s direct evidence, repeated on several occasions, that “if the conditions let me stay, I will …” and his consistent evidence that he would like to stay in Australia if he could in order to save funds for a future international tourism business in Vietnam.

18. On balance, and after careful consideration, the Tribunal concludes that the applicant’s circumstances as a whole and travel history support a finding that the applicant is using the student visa program to circumvent the intentions of the migration programme.

    The applicant’s circumstances in their home country

19. The Tribunal has considered the factors in clause 9 and 10 of Direction 69 with respect to the applicant.

20. The applicant has already obtained Bachelor level qualifications in Vietnam and gave little explanation for not studying the current course in Vietnam other than the proposition that education in Australia is well regarded.  The Tribunal gives little weight to the explanation of the applicant.

21. The Tribunal notes that, without prompting, the applicant answered “yes” to the Tribunal’s question whether he had enough qualifications to return home.

22. The applicant gave evidence that he had a mother and father in Vietnam and also a younger sister studying in the United States of America.  The applicant has returned to his home country once in the time he has been resident in Australia.  The applicant gave evidence that he maintained contact with his family by Messenger (sister) and Viber (parents). 

23. Weighing the evidence and considering the circumstances of the case, the Tribunal finds that the applicant’s personal ties to his home country do not serve as a significant incentive to return to Vietnam.

24. The Tribunal also gives weight to the applicant’s evidence that he needs about $100,000.00 USD to start his business in Vietnam, he has access to support from his family for $50,000.00 USD and he has sent back to Vietnam about $10,000.00 since late in 2016.  In response to questions about his intention to return to his home country to pursue this business venture, the applicant told the Tribunal it is “difficult, if I don’t have enough money, how can I start my business?”  The applicant gave inconsistent evidence as to how long he might need to stay in Australia to accumulate the necessary funds.  Considering all the material before the Tribunal, the evidence of the applicant evinced a clear preference for remaining in Australia to improve his economic circumstances in order to pursue a loosely formulated tourism business in Vietnam at some point in future.

25. The applicant told the tribunal he earned about $600.00 to $700.00 (AUD) per week for 20 hours in a role as a restaurant manager.  He provided the Tribunal with a pay slip that showed an income of $494.00 for the week (AAT Folio 79).  The applicant told the Tribunal that he lives in rented accommodation in suburban Hobart with friends.  The applicant’s employer, Dr Ho, gave evidence that he would like the applicant to remain in Hobart and work for him as a full time restaurant manager if this was possible.

26. The Tribunal notes the applicant’s evidence that he has no intention of staying in Australia in breach of visa conditions and that “… if I have to go back, I will go back”.  The Tribunal gives that evidence relatively little weight and notes that the applicant’s “Statement of Purpose” document (undated) provided by him to the Tribunal discloses a period of 9 months between August 2016 and May 2017 during which the applicant was not studying. 

27. The applicant’s statement that he spent that nine month period studying and practicing English to take an IELTS exam is given little weight without any documentary support.  Records from the Provider Registration and International Students Management System (PRISMS) Database show that the applicant has studied English for academic purposes 2 (Advanced) from 15 August 2011 to 21 October 2011 and English language programs between 15 April 2013 to 21 June 2013.

28. The Tribunal has carefully considered the applicant’s evidence and Direction 69.  On balance, and weighing all of the evidence, the Tribunal finds that the economic circumstances of the applicant would present as a significant incentive for the applicant not to return to his home country.

    The applicant’s potential circumstances in Australia

29. The Tribunal has considered the factors in clause 11 of Direction 69 with respect to the applicant.

30. The applicant told the Tribunal the only family he had in Australia was an aunt of his mother who he lived with for a few months after he arrived in Australia.  The applicant said the aunt lived in Melbourne.  The Tribunal accepts that evidence.  The Tribunal gives no weight to this adverse to the applicant.

31. As noted in paragraph 16 above, by the time the applicant completes the course he is currently enrolled in he will have been in Australia almost eight years.  At the time of this decision he has only visited his home country once during that period.  The amount of time the applicant has spent in Australia is difficult to reconcile with the applicant’s claim to be a genuine temporary entrant.  Further, the applicant has failed to advance in his studies and has regressed, having previously completed two Bachelor level courses of study; he now is pursuing relatively lower level courses.  On balance, and having regard to all the circumstances of this case, the Tribunal is of the view that the student visa programme is being used by the applicant to circumvent the intentions of the migration programme and that the student visa is being used to maintain ongoing residence in Australia.    

    Value of the course to the applicant’s future      

32. The Tribunal has considered the factors in clause 12 of Direction 69 with respect to the applicant.

33. The applicant’s s. 359(2) response states that before coming to Australia the applicant completed a Bachelor of Business at the University of Economics, Ho Chi Minh City. This was confirmed orally by the applicant, who gave evidence that the course included marketing studies. The Tribunal accepts that evidence.

34. The Tribunal put to the applicant, using the procedure in s. 359AA, records from the PRISMS Database.  Those records show that the applicant commenced a Bachelor of Commerce in November 2011, shortly after arriving in Australia.  This was cancelled in July 2014.  A Bachelor of Management commenced in November 2011 was also cancelled in July 2014.  The Tribunal gives no weight against the applicant in relation to the cancellations, the applicant explaining them as being due to overlap with his qualification in Vietnam and a desire to broaden his knowledge.

35. The PRISMS database shows that since being in Australia, as well as English language skills, the applicant has studied and completed a Bachelor of Tourism and Hospitality Management in June 2017 and a Diploma of Accounting in 2018.  The applicant is currently enrolled in an Advanced Diploma of Leadership and Management in Tasmania, where he also resides and works. 

36. The applicant gave evidence that the purpose of the current study was to acquire skills for his future international tourism business in Ho Chi Minh City, Vietnam. 

37. The Tribunal finds that the applicant has, since first arriving in Australia, enrolled in 7 courses of study.  Further, since June 2017 he has failed to advance his studies and has undertaken relatively low cost and lower level courses when he has already obtained two Bachelor Degrees, including one in Australia.  The current course of study is not consistent with the applicant’s current level of education or an intention to progress educationally.

38. The Tribunal does not find that the current course will assist the applicant to gain employment in his home country. The applicant spoke of proposed future employment in Vietnam being self-employment in his own tourism business. The applicant did not refer to any connection between the qualifications from his current course and remuneration he could expect to receive in his home country. The applicant agreed with the Tribunal that the remuneration estimate of $1000 USD per month he included in his s.359(2) response was a speculative estimate of what he might achieve from a future tourism business.

39. Rather than expressing any connection between the study he had undertaken, and was undertaking, and remuneration on return to his home country, the applicant repeatedly emphasised a connection between studying and the ability to work in Australia so he could save funds for his future tourism project.  The applicant expressed a clear desire to remain in Australia for economic reasons, not for the reason that the current course of study would improve his prospects on return to Vietnam.  Having weighed the evidence of the applicant and the whole circumstances of the case, the Tribunal finds that the applicant is using the current course of study primarily to maintain residence in Australia.

40. There is no relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: circumstances in the home country relative to Australia or any other country and the applicant’s circumstances in the home country relative to others in that country.

41. The applicant confirmed to the Tribunal at the hearing and in his s.359(2) response that he has no military service commitments or concerns about political or civil unrest in his home country of Vietnam.

42. 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).

43. 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.

44. 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.

45. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    M. Edgoose
    Member

    
    

    D. Shirrefs
    Member

    
    

    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;

    d.whether 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

    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.