Tran (Migration)

[2019] AATA 1150

Tran (Migration) [2019] AATA 1150 (15 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ngoc Hong Luyn Tran

CASE NUMBER:  1713272

HOME AFFAIRS REFERENCE(S):           BCC2017/1525737

MEMBER:Stephen Conwell

DATE:15 May 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 15 May 2019 at 2:06pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – no completed study since 2008 – lack of academic progress – long stay onshore – intention to live in Australia motivated by factors other than study – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 12 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 27 April 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 in Australia temporarily (GTE criterion).

4. Where used in this decision:

   a.   COE refers to Confirmation of Enrolment;

   b.   VET refers to Vocational Education and Training;

   c.   The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection);

   d.   Direction 69 or the Direction refers to Direction No.69, Assessing the genuine temporary entrant criterion for Student visa application;

   e.   GTE refers to the Genuine Temporary Entrant criterion for Student visa applications;

   f.      ‘359(2) questionnaire’ or ‘359(2) invitation’ refers to the Request for Student Visa Information questionnaire issued by the Tribunal under s.359(2) of the Act.

5. On 6 August 2018 the applicant was invited under s.359(2) of the Act to provide information about her proposed course of study and her entry to stay in Australia as a student. The invitation was sent to the applicant’s migration agent (‘representative’) at the last address provided in connection with the review and advised that, if the information was not provided in writing by 20 August 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The 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 applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an 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.

7. The Tribunal has decided to proceed to decision without taking further steps to obtain the information. Accordingly the Tribunal moves to determine the review application “on the papers”.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

10. 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?

11. 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 her 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 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.

13. The Tribunal has reviewed the delegate’s decision of 12 June 2017 which was provided by the applicant with her application for merits review. This decision is not binding on the Tribunal and the Tribunal brings an independent view to the review application.

14. The delegate’s decision in summary notes:

    ·The applicant is a female national of Vietnam who first arrived in Australia in 2004.She has been in Australia for more than 14 years.  Given her long stay onshore, the delegate was concerned that concerned that the applicant’s intention to live in Australia is motivated by factors other than study.

    ·the delegate note that the applicant had provided evidence of her high school study from 2008 in Australia and a transcript from her Bachelor of Business studies from 2015 and 2016 in Australia; however she provided no evidence of studies completed in 2014 or any evidence of studies undertaken in a Bachelor of Nursing from 2009 until 2013.

    ·Furthermore, the delegate concluded that she had not plausibly demonstrated a clear and substantial improvement arising from your proposed study that will outweigh the significant time and monetary commitment this course would require. No completed study has occurred since 2008.

    ·The delegate notes that the applicant was enrolled in a Bachelor of Nursing without finishing 2013, which was cancelled due to non-payment of fees, as well as a Bachelor of Business 2017 which was cancelled due to unsatisfactory course progress. The applicant offered no explanation regarding these circumstances.

    ·The delegate was concerned that the applicant’s intention to live in Australia is motivated by factors other than study.

    ·After weighing up these factors as a whole, the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

15. The Tribunal has reviewed the delegate’s decision which was provided by the applicant along with her application for merits review. This decision is not binding on the Tribunal; the Tribunal brings an independent view to the review application.

16. The Tribunal has considered all the above information, including the applicant’s  Statement in support of her latest visa application. It has regard to the factors in Direction 69.

17. The applicant’s claims that she has not done anything illegal during her stay in Australia and she enjoys Australia’s lifestyle and culture . She  has not provided a satisfactory explanation for her desire to remain in Australia to pursue further study. Nor is the Tribunal satisfied that her proposed course of study will add value to her stated career or remuneration prospects.

18. There is no evidence pertaining to the following factors indicated by Direction 69 that would prevent her from returning to her home country and the Tribunal makes no findings against the applicant based on:

    ·       any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;

    ·       circumstances in the home country relative to Australia or any other country;  or

    ·       the applicant’s circumstances in the home country relative to others in that country.

19. On the evidence before it, the Tribunal finds that the applicant is not a genuine student. Rather, she appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and she does not genuinely intend to stay in Australia temporarily.

20. Overall, given lack of evidence of academic progress, her study history, immigration history, and the lack of value of the courses to her future, the Tribunal finds that the applicant is using the Student visa program to circumvent the intention of migration programs.  The Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that she genuinely intends to stay in Australia temporarily.

21. On the basis of the above, and having considered any 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.500.212(a).

    Conclusion on cl.500.212

22. 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.

23. 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

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

    Stephen Conwell
    Member