TRAN (Migration)

[2018] AATA 5565

TRAN (Migration) [2018] AATA 5565 (23 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi My Hanh TRAN

CASE NUMBER:  1709638

HOME AFFAIRS REFERENCE(S):           BCC2017/1283043

MEMBER:Warren Stooke AM

DATE:23 November 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 23 November 2018 at 4:31pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – interest in academic study – value of courses to applicant's future – inconsistent with work history – economic disparity – personal ties in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 20 April 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 5 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 is a genuine applicant for entry and stay as a student and having regard to the applicant’s circumstances in Vietnam and Australia, including the lack of a strong incentive for her to return.

4. On 30 May 2018, the Tribunal sent an invitation to the applicant to provide information, which was due to be provided by the 13 June 2018. The applicant responded to the request for information and provided consent for the Tribunal to determine her application without a hearing.

5. The applicant was assisted in relation to the review by their 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. 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 is a genuine applicant for entry and stay as a student.

8. The applicant is a 32 year old from Vietnam, who has never married and arrived in Australia on a Tourist visa that was granted on 13 December 2016 and was valid until 20 April 2017.

9. The applicant applied for a Student (Subclass 500) visa to engage in courses of study that would commence on 10 April 2017 and conclude on 25 April 2019, with the first course being English, followed by further studies, including a Certificate IV in Leadership and Management and a Diploma in Leadership and Management.

10. The applicant provided information that she had completed her English Language Programs (Beginner to Advanced) which transpired over a 12 month period. [Tribunal File – Folio 26].

11. The applicant provided the Tribunal with Certificates of enrolment that provided for the study of a Certificate IV in Leadership, that was intended to take place from 22 January 2018 to 26 October 2018, and a Diploma of Leadership and Management that was intended to take place from 29 October 2018 to 25 October 2019. [Tribunal File – Folios 24 and 25]

12. The applicant confirmed in the information provided to the Tribunal on 13 June 2018 that she had completed the English Language program due for completion in November 2017.

13. The applicant provided the Tribunal with information that her current living expenses, excluding course fees, amounted to $18,044 per annum and she also indicated that she has no paid employment.

14. The applicant has a mother, two brothers and two sisters in Vietnam and last saw her family members in January 2017.

15. The applicant stated that her purpose for studying in Australia was to achieve an international qualification, which she considered valuable and she wanted to bring business knowledge to her home country. The applicant stated she had work experience in restaurants and more recently ran her own Uber type business.

16. The applicant was granted a Bridging visa on 5 April 2017 that has a restriction on travel and does not allow work; however the visa allows full permission to study.

17. The Tribunal notes that the applicant has not set out any future career plans or provided evidence as to how the intended course of study will assist her development or career.

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

18. 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?

19. 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.

20. 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.

21. The Tribunal has reviewed the applicant’s circumstances in her home country, potential circumstances in Australia, the value of the course to the applicant’s future; and the applicant’s immigration history, including previous applications for an Australian visa and makes the following findings:

    a.The applicant first arrived in Australia on a Tourist visa and it was only after arriving in Australia and when the Tourist visa was due to expire that the applicant chose to seek to remain in Australia as a student. The Tribunal seriously questions the genuineness of this decision to engage in studies for academic or career purposes;

    b.The Tribunal finds that the decision to transition from a Tourist visa to apply for a Student (Subclass 500) visa was an impromptu decision based upon a lifestyle experience the applicant had whilst travelling in Australia and was not founded on any genuine interest in academic study that had a specific career goal or purpose. The Tribunal also finds that the chose courses in Leadership and Management are completely inconsistent with the itinerant job history of the applicant. As such, the Tribunal considers that the applicant is using the student visa stream to facilitate residency, rather than any genuine reason for academic study and progression;

    c.The Tribunal notes that the applicant has not declared any employment whilst studying in Australia, but is capable of sustaining living costs that exceed $18,000, which is a concern to the Tribunal in terms of the capacity to support those living expenses;

    d.The applicant has not provided the Tribunal with any evidence of her academic progress (if any) since completing an English course program in November 2017;

22. The Tribunal has considered the former findings of the delegate, against the contemporary information provided by the applicant concerning this application and concurs with the findings and decision of the delegate. In this regard the delegated stated in the decision:

    “I have taken into account the applicant's economic circumstances in their home country relative to their potential economic circumstances in Australia. The applicant declared in her statement of purpose that since graduating from high school, she has 'done different jobs, from waitress to office worker and manager'. The applicant also detailed that she has recently purchases 'a car and been using it for Grabtaxi service'. No evidence of this stated employment or income has been included in the application.

    Departmental records also demonstrated that the applicant has previously declared her employment as a bartender, waitress, hairdresser and selling mobile phones. Given the disparity in the economic circumstances between Vietnam and Australia, I cannot be satisfied that the applicant has significant incentive to return to Vietnam.

    The course the applicant is seeking to undertake is inconsistent with the applicant's employment background. While it is not uncommon for a person to seek a change in career pathway, I give weight that there has been a gap of several years between the previous study undertaken by the applicant and the proposed study in Australia and the applicant has made no steps towards achieving their educational goals in their home country.

    While the applicant has personal ties in Vietnam in the form of their immediate family, I find that these ties do not, of themselves, constitute a strong incentive to return home when considered against the fact the applicant is single and economic circumstances in Vietnam. These circumstances may represent a stronger incentive to remain in Australia.

    Due to the applicant's circumstances in Vietnam, I am concerned that their intention to live in Australia is motivated by factors other than study. Namely, that this application may be motivated by the potential to engage in more than 40 hours per fortnight of paid employment in Australia, which would be a direct breach of the 8105 visa condition relating to work.

    The applicant detailed in her statement of purpose that she would return to Vietnam and

    'bring that knowledge to run my own business'. I have placed weight on the applicant's vague plan as to the value of the course to the applicant's future.”

23. Further, there is no evidence before the Tribunal that would suggest that the applicant has any reason not to return to Vietnam and that to the contrary there is every indication that the applicant has developed a desire to remain in Australia for the purposes of residency and the lifestyle. As such, the Tribunal is satisfied upon the review of the criteria pertaining to Direction 69 that there is no further material before the Tribunal to be considered.

24. 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).

    Does the applicant intend to comply with visa conditions?

25. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

26. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

27. Given that the applicant has sought a student visa only upon the expiry of a Tourist visa, the Tribunal is not confident that the applicant will comply with any future visa conditions to undertake study, should a visa be granted.

28. On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

29. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

30. In the absence of any submission by the applicant when responding to the Tribunal’s invitation of 30 May 2018 to provide information, including pertinent material pertaining to Direction 69 for consideration by the Tribunal, the Tribunal does not have contemporary information concerning ‘any other relevant matter’, which the Tribunal may review. As such, the Tribunal is satisfied that there is not any other relevant matter to be reviewed, that is currently before the Tribunal.

    Conclusion on cl.500.212

31. 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.

32. 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

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

    Warren Stooke AM
    Member