Phan (Migration)

[2018] AATA 5771

Phan (Migration) [2018] AATA 5771 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thien Lam Lin Phan

CASE NUMBER:  1717771

HOME AFFAIRS REFERENCE(S):           BCC2017/918520

MEMBER:Mark Bishop

DATE:11 December 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 11 December 2018 at 5:44pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – does not genuinely intend to stay in Australia temporarily – repeated and continuing breaches of conditions – failed to maintain enrolment – did not achieve satisfactory attendance – failure to seek correct visa – using student visa to maintain ongoing residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218, Schedule 8, Conditions 8516, 8202

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 7 August 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 8 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 appeared before the Tribunal on 11 December 2018 to give evidence and present arguments.

5. 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 extensive discussion as to the applicant’s repeated and continuing breaches of conditions attached to various student visas. These breaches were serious, ongoing and deliberate.

6. The applicant was assisted in relation to the review by their registered Migration Agent (MA).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

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

9. 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?

10. 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.

11. 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.

12. The applicant was granted a TU-573 visa under streamlined visa processing (SVP) arrangements on 26 July 2013 to gain preferred access to study and live in Australia. Condition 8516 (visa holder continues to satisfy primary conditions) was attached to the visa. The delegate made a finding the applicant had been in breach of conditions attached to her visa as follows:

    ·The applicant failed to maintain enrolment in the HE sector courses at a SVP education provider. Hence she did not comply with condition 8516 attached to her student visa. She did not provide a substantial reason or explanation for the change of education providers;

    ·The applicant did not comply with condition 8516 attached to her previous student visa when she failed to study or maintain enrolment in her principal course or another course in the HE sector. Her Bachelor of Business enrolment was cancelled by the education provider on 1 September 2016 and the applicant did not enrol in a Bachelor of Tourism until 23 February 2017;

    ·The applicant’s previous student visa was subject to condition 8202 (continues studying) which required her to be enrolled in a registered course, achieve satisfactory course progress and achieve satisfactory attendance. The applicant did not achieve satisfactory attendance in English for Academic Purposes as reported by her education provider on 1 September 2016. The delegate made a finding the applicant did not comply with condition 8202 of her then student visa.

13. The applicant provided a Genuine Temporary Entrant (GTE) statement) to the Tribunal dated 23 October 2017. The GTE statement outlined the following:

    ·The applicant entered Australia as the holder of a TU-573 visa. The applicant enrolled in a series of VET courses in English and Accounting. The applicant did not achieve pass results in these courses. The applicant did not enrol in courses in the Higher Education (HE) sector as is required by the holder of a TU-573 visa;

    ·The applicant then proceeded to enrol in further VET courses in Leadership and Management;

    ·The applicant now seeks to study a Bachelor degree in Hospitality.

14. The GTE statement outlined above in paragraph 13 did not address the findings of the delegate as outlined in paragraphs 5 and 12 above. The Tribunal sought an explanation for this omission. The applicant advised she found the study difficult and failed many of her units. The applicant advised the Tribunal she did not give any consideration to approaching the Department and seek to obtain the correct visa for her newly chosen courses of study. The applicant did not offer any reason for this failure to seek the correct visa.

15. On 31 October 2018 the applicant provided a written response to request for Student visa information under s.359(2) of the Migration Act. It outlined the following:

    ·The applicant completed year 12 in Vietnam in 2012;

    ·The applicant was granted a TU-573 visa on 4 July 2013 valid until 15 March 2017. An application for a TU0500 student visa was refused on 7 August 2017;

    ·In the period September 2013 until the present the applicant completed two courses in Leadership and Management in October 2017 and September 2018. She did not complete any courses in the period September 2013 until October 2016;

    ·She has been employed as a nail technician from November 2017 until the present time and earns $20 per hour;

    ·She holds a passport from Vietnam, first arrived in Australia in July 2013, returned  home on one occasion for a brief period in 2015 and has not applied for a visa to another country;

    ·The applicant declined to provide information concerning visits, if any, to other countries over the last ten years;

    ·The applicant’s living expenses in Australia are approximately $12,500 per annum;

    ·She last saw family in Vietnam in August 2015;

    ·She has enrolled in a Bachelor of Tourism so she could eventually assist her family business.

16. The applicant provided a further GTE Statement to the Tribunal on 5 December 2018. It outlined the following:

    ·    After completion of high school the applicant came to Australia to pursue studies in Commerce and Management so that she could assist in the family business;

    ·    She completed a Diploma and Advanced Diploma in Leadership and Management in the years 2017 and 2018. She is currently enrolled in a Bachelor of Tourism and Hospitality Management;

    ·    She finds living and studying in Australia a rewarding experience;

    ·    She has travelled extensively to many parts of Australia to experience the travel/holiday/tourism industry;

    ·    She wishes to live in Cairns, QLD;

    ·    A degree obtained from Australia will assist to gain work in Vietnam. Her hometown of DA NANG is a growth area for tourism;

    ·    She came to Australia in 2013 to study English and Commerce. He completed his English studies. Thereafter he enrolled in sequentially in Certificates, Diplomas and Degrees in Commerce, Accounting and Business. She regularly failed units in all courses and completed none. Because of his poor results Cambridge International College refused her admission to a Bachelor degree in Business;

    ·    She changed his study plan to enrol in VET level courses in Leadership and Management and completed a Diploma and Advanced Diploma. She is now enrolled in a Bachelor of Tourism and Hospitality Management.

17. The applicant provided Statements of Attainment for completion of some units in English and VET courses in Accounting in the years 2014 and 2015.

18. The applicant provided Certificates of Graduation at Diploma and Advanced Diploma level in Leadership and Management for completion of VET courses in the years 2017 and 2018.

19. The applicant provided a Confirmation of Enrolment (COE) in a Bachelor of Tourism commencing 12 November 2018 and scheduled to conclude 8 November 2019. This course will take 12 months to complete. The applicant advised she had been given credit for ten of the 24 units required to graduate in this degree.

    Ministerial Direction Number 69

20. The Tribunal turns to consider Ministerial Direction Number 69 (MD69).

21. The Tribunal considers cl.9 and 10 of MD69 the applicant’s circumstances in her home country.

22. The applicant advised she did not seek to enroll in a university in her home country. The applicant advised she did not consider studying in Vietnam prior to coming to Australia. The applicant advised she did not carry out any investigation as to the availability of courses in her home country. There was minimal evidence as to the availability of possible courses or alternates in Vietnam. There was little evidence before the Tribunal that the applicant assessed her ability to study in the Higher Education (HE) sector of a foreign country in a new language. There was minimal evidence before the Tribunal the applicant considered the implications of living and studying as a young person in a culture that was strange to her. The applicant came to Australia to study in the HE sector at the behest of her parents.  She never thought to change her visa to permit study in the VET sector. As study in the HE sector was difficult she attempted to study in the VET sector in courses relating to Business and Accounting. Her results continued to be poor. The applicant did not complete or graduate from a single course of study (excluding an ELICOS course) from the time of her arrival in Australia in September 2013 until October 2017. Even as she withdrew from courses in the HE sector and gained the necessary clearance letter to enroll in Certificate level courses in the VET sector the applicant advised she, in consultation with her parents, researched some providers and found Cambridge International College. There was no indication to the Tribunal the applicant at this stage considered returning home and studying in her home country.   The Tribunal closely reviewed the applicant’s written statements to the Department (Df: 35-38) and the Tribunal (Tf: 57-58). The applicant made continuing references to her parent’s desire for her to obtain a good education in an English speaking country. There were few references to obtaining a good education in her home country. The applicant’s statements demonstrated little understanding of the complexity of the task and the difficulty of adjusting to a different life in a new country.

23. The Tribunal is of the view the applicant does not have reasonable reasons for not undertaking the study in her home country.

24. The applicant is a single female from Vietnam. She does not have any assets of any kind in her home country. The applicant advised she receives approximately $1,000 AUD per month from Vietnam to assist with living costs plus funds for payment of tuition fees. She advised her parents are wealthy and heavily subsidise her lifestyle in Australia. She has returned home on only one occasion since her initial arrival in Australia. She has lived with family in Australia from the time of her arrival until the present time. The applicant did not advise of any economic imperative to leave Australia and return to her home country. Given the opportunity the applicant advised she wished to remain in Australia and work in this country. She thought her parents might build and operate a hotel so that she could work in the hospitality industry in her home country. She advised she was unable to provide any further detail as to the intentions of her parents in this regard. The applicant advised she worked as a nail technician in Australia and earned approximately $400 per week plus superannuation. She receives full board and accommodation with family in Melbourne. She regularly travels to different states of Australia and expressed interest in further travel.

25. The Tribunal is of the view the extent of the applicant’s ties to her home country do not serve as a significant incentive to return to her home country. The Tribunal is of the view the economic circumstances of the applicant present as a significant incentive for the applicant not to return to her home country.

26. The applicant advised she does not have any military service commitments in her home country. The applicant advised she was not aware of any political or civil disturbances in Thailand. There was insufficient information before the Tribunal to reach a conclusion concerning whether the applicant’s circumstances in his home country are better off than most in her home country.

27. The Tribunal considers cl. 11 of MD69 the applicant’s potential circumstances in Australia.

28. The applicant advised the Tribunal she has lived with family in Melbourne since her arrival in Australia. She earns a solid income and receives regular large remittances from Vietnam. The applicant advised she attends temple for special occasions. She advised she had developed a network of friends from study and work. She advised she socialise with them on a regular basis. She advised she travels to other parts of Australia with friends on a regular basis. She advised she had travelled extensively around the east coast of Australia and this travel had sparked her interest in the tourism industry.

29. The Tribunal is of the view the applicant has built a well-ordered and well-structured life for herself in Australia. That life involves continuing work over time, participation in her community through occasional temple attendance, sometimes study, a network of friends and social activities that evolve from work and study, a significant income sourced from both work in Australia and remittances sent from Vietnam and a deep interest in travel. The applicant advised the Tribunal she would like to remain in Australia and work in Australia.

30. The Tribunal is of the view the applicant’s ties with Australia present as a strong incentive to remain in Australia. The Tribunal is of the view the applicant is using the student visa programme to circumvent the intentions of the migration programme. The Tribunal is of the view the applicant is using the student visa programme to maintain ongoing residence in Australia.

31. The applicant provided little information concerning cl.11 (e) of MD 69. The applicant was reluctant to give evidence concerning her parent’s standard of living except to advise they owned significant assets in Vietnam and provided her with regular large income supplements. There is insufficient information before Tribunal concerning cl.11 (e) of MD 69 for the Tribunal to reach a conclusion.

32. The Tribunal considers cl. 12 of MD69 the value of the course to the applicant’s future.

33. The applicant has now been resident in Australia for more than five years. He study record was poor to non-existent in her first years in Australia. She originally came to Australia to study in the Higher Education (HE) sector. She found her initial attempts at study difficult. She did not progress in any way until 2017. At the time of the review hearing the applicant has completed VET level courses. She advised her extensive travel in Australia had motivated her to study again at Bachelor level in the field of tourism. She advised a degree from Australia would assist to gain employment in Vietnam and other countries. She advised the tourism industry was developing in her home province.

34. The applicant did not provide any exact detail as to where she might find employment in Vietnam. She did not provide a business plan for opening an enterprise. She advised she had not consulted with any companies in Vietnam. She advised she had not approached any companies in Vietnam to explore the possibility of employment in her home country. She advised she had not consulted with any chambers of commerce in her home country as to the likelihood of employment in her home country. She did not provide any detail to the Tribunal as to her likely position in either a family company a newly built family hotel. She did not outline any particular or specific jobs she might like to pursue subsequent to graduation from university. She did not relate her studies to a higher remuneration. The applicant in both her evidence and written submission stressed to the Tribunal her interest in continuing travel and her enjoyment of such travel. The applicant was reluctant to explain her parent’s business interests in Vietnam. Apart from the most general of comments the applicant did not relate her studies to a future career.

35. The applicant did not provide any evidence to the Tribunal that Australian VET level qualifications or even HE degrees have any particular utility in her home country. The applicant did not provide any evidence to the Tribunal that Australian qualifications are sought out or even considered by employers in Vietnam. Apart from noting the growth of the tourism industry in her home province and repeating advice from her parents that they have seen a change in the tourism market in Vietnam the applicant did not relate her study at Bachelor level to her own future.

1. The applicant provided academic transcript of units completed in her respective Diploma and Advanced Diploma of Leadership and Management. The Tribunal has examined this transcript. As might be examined the majority of the units address the operational concerns and functional issues associated with the management of employees and an enterprise. It is not clear to the Tribunal why the applicant selected this education stream when more suitable alternates are available in the field of Hospitality and Hospitality Management for a person who seeks to work in the tourism industry. Those particular education streams are more particular and more exactly address the needs of the tourist and hospitality industry. The applicant did not provide any detail as to the units she would study in her Bachelor degree of Tourism and Hospitality Management. Despite requests to address the Tribunal the applicant did not explain the relationship between this course and future employment outcomes except to advise her parents “allowed” enrolment in this course.

2. There is a paucity of information before the Tribunal as to the specific intents or plans of the applicant post her education in Australia. The Tribunal is of the view the applicant is seeking to undertake a course that will not assist the applicant to obtain employment or improve her employment prospects in the home country. The Tribunal has considered reasonable changes to career or study pathways. The Tribunal is unable to see any relevance of the course to the student’s past or proposed future employment either in her home country or a third country.

3. The Tribunal considers cl. 13 and 14 of MD69 the applicant’s immigration history.

4. As outlined above the delegate made a specific set of findings that the applicant has been in breach of conditions attached to her TU-573 visa in her first years of residency in Australia. The Tribunal sought explanations for these breaches of conditions attached to her then visa. The applicant advised the Tribunal study in the HE sector was difficult. She provided a written narrative of her continuing failure from 2013 until 2017. She did not offer an explanation of her many breaches of conditions attached to her visas. The Tribunal does not accept that because study in the HE sector is difficult or demanding it is a reason not to study or not to continue to maximise efforts. A university degree course at Bachelor level is designed to provide a degree holder with skills in critical thinking and analysis that may be deployed to solve disparate challenges. It is intended to be difficult. It is intended to challenge students. The applicant did not express any regret to the Tribunal for her lengthy breaches of conditions attached to her then student visa.  Those breaches were protracted, deliberate and sustained. There is no right to be in breaches of conditions attached to student visas. Student visas are granted for a purpose. That purpose is to study at the appropriate level and progress academically. It is for the visa holder to comply with relevant conditions at all times. The Tribunal gives significant weight to the breaches attached to conditions attached to visas.

5. The Tribunal considers cl. 15 and 16 of MD69 if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant any other relevant matters

6. As the applicant is over 18 years of age, the intention of their parent, legal guardian or spouse was not relevant to the Tribunal’s assessment.

7. The Tribunal has considered whether there is any other matter that is relevant to the assessment of the applicant’s genuine intention to temporarily stay in Australia and find that there are no other relevant matters for consideration.

8. The Tribunal has considered all of the information provided by the applicant in support of their application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding their circumstances in their home country, potential circumstances in Australia, immigration history and the value of their proposed course to their future are sufficient to demonstrate that they are a genuine temporary entrant.

9. 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

10. 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.

11. 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

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

    Mark Bishop
    Member