Vo (Migration)

Vo (Migration) [2018] AATA 4562 (28 August 2018)
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Xuan Hai Vo
CASE NUMBER:  1708646
HOME AFFAIRS REFERENCE(S):           BCC2017/720521
MEMBER:Mark Bishop
DATE:28 August 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 28 August 2018 at 12:50pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine applicant for entry and stay as a student – maintaining ongoing residency in Australia – not enrolled in an approved course at the time of decision – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.111, 500.211, 500.212, 500.218
Education Services for Overseas Students Act 2000
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 13 April 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 22 February 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.
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.
The applicant provided a copy of the decision record to the Tribunal.
The applicant appeared before the Tribunal on 28 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)
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?
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.
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.
The applicant did not provide a GTE statement to the Department.
The Tribunal provided a s.359AA statement to the applicant. The Tribunal read the s.359AA statement to the applicant. The Tribunal explained the s.359AA statement to the applicant. The s.359AA statement outlined the following:
s.359AA Statement to be read out by the Presiding Member at hearing in Case No 1708646
Mr VO, I am going to share with you some adverse information that I have from a Departmental database. It is called PRISMS (the Provider Registration and International Students Management System). It tracks, based on information reported by Australian education providers, the enrolment and education achievements of international students in Australia. I have a PRISMS report dated 22 August 2018.
The information is:
1.       PRISMS show you have enrolled in 16 courses since your arrival in Australia in June 2013.
2.       PRISMS show your education provider cancelled your enrolment in all courses from 11 February 2014 until 6 August 2016 (excluding the period relating to enrolment in a Certificate IV in Business generally for reason of “non-commencement of studies” or “unsatisfactory course progress”.
3.       PRISMS show you finished a Diploma in Leadership and Management in August 2017. You provided a Certificate of Graduation to this effect.
4.       PRISMS show you finished an Advanced Diploma in Leadership and Management in August 2018. Finished does not mean completed or graduated. You provided a Certificate of Graduation or Statement of Results for this course to the Tribunal on the morning of the hearing.
5.       PRISMS show you propose to study a Bachelor of Business (Management) until July 2020. You provided a COE to this effect that shows an initial pre-paid tuition fee of $3,875 out of tuition fees of $31,000.
This information is relevant because it shows that you have not started, have cancelled or not completed many courses you have enrolled in. In particular it shows minimal academic progress in the period 11 February 2014 until 6 August 2016. It indicates a lack of academic progress that in the absence of other explanation is not consistent with you being a genuine student staying in Australia temporarily.
If the Tribunal relies on this information in making its decision, it may lead me to believe that you are not a genuine applicant for entry and stay as a student and that you do not meet cl.500.212(a).
I invite you to comment on or respond to this information. You do not have to respond or comment now. You may seek additional time to comment on or respond to that information. If you do want additional time, I will consider your request and will grant you a reasonable amount of time to consider the information I have given to you and to consider your response to that information.
Do you want to comment on or respond to the information I have just provided to you now or would you like some time to consider it before you respond?
The applicant sought a brief adjournment and the Tribunal provided same.
The Tribunal examined the applicant on each paragraph of the s.359AA statement. The applicant advised as follows:
·In respect of paragraph 1 the applicant advised it was correct.
·In respect of paragraph 2 the applicant advised it was correct.
·In respect of paragraph 3 the applicant advised it was correct.
·In respect of paragraph the applicant advised it was correct.
·In respect of paragraph 5 the applicant advised it was correct.
On 2 August 2018 the Tribunal wrote to the applicant in the following terms:
Please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1.A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of a student visa.
2.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
3.We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.
In determining whether you are a genuine applicant for entry and stay as a student, we may also have regard to cl.500.212(b) of Schedule 2 to the Regulations. This clause requires that you intend to comply with any conditions subject to which the visa is granted, having regard to your record of compliance with any previous visa conditions and your stated intention to comply with any conditions to which the visa may be subject. Please be prepared to answer any questions the Tribunal may have on this issue and provide any supporting information or documents you may wish to provide to the Tribunal.
The applicant did not provide a GTE statement to the Tribunal in response to the request for information.
The applicant provided the following Certificates of Graduation:
·Certificate I in Spoken and Written English dated 18 July 2013;
·Certificate IV in Business and academic transcript for the period September 2015 until February 2016 dated 4 April 2016;
·Diploma of Leadership and Management and academic transcript for the period 8 August 2016 until 6 August 2017;
·Advanced Diploma of Leadership and Management and academic transcript for the period 7August 2017 until 5 August 2018
The applicant did not provide any Certificates of Graduation or academic transcript for study in the period August 2013 until September 2015. In direct evidence the applicant advised he had enrolled in one course. During this period he enrolled and re-enrolled in a course. He failed his units in this course. He does not have any Statements of Attainment or academic transcript for this period because he did not pass any subjects. The applicant was unable to provide any academic transcript for the period after July 2013. The applicant declined to advise the Tribunal as to his academic progress in the period August 2013 until September 2015.
The applicant provided a response to a request for student visa information under s.359(2) of the Migration Act. In that response the applicant outlined the following:
·He graduated high school in Vietnam in 2010 and spent three years studying at Ho CHI MINH CITY University of Technology and graduated with a Diploma of Food Technology in 2013;
·He did not complete or graduate from any courses of study in Australia (excluding a course in General English in 2013) until the completion of a Certificate IV in Business in March 2016;
·He did not complete a Diploma of Business in 2017 and did not provide an academic transcript of subjects studied;
·He completed a Diploma of Leadership and Management in August 2017;
·He concluded an Advanced Diploma of Leadership and Management in August 2018. He did not provide a graduation certificate or academic transcript;
·He advised he had not visited countries other than Australia in the last ten years;
·He advised his annual living expense were approximately $A12,000;
·He advised he last saw friends and family in Vietnam in June 2014
In direct evidence the applicant advised all of his enrolments in approved courses from February 2014 until August 2016 (excluding the period of study in a Certificate IV in Business) were cancelled by the education provider for reason of “non-commencement of studies” or “unsatisfactory course progress”.
The Tribunal sought an explanation from the applicant for his poor study performance in his first years in Australia. The applicant advised his English was poor when he came to Australia and the courses he enrolled in were difficult because his English was poor. The applicant did not return to Vietnam. He preferred to remain in Australia. He did not study English to improve his English language skills.
The Tribunal sought an explanation why the applicant had not complied with the terms of his TU-573 visa by studying in approved courses in the HE sector. The applicant advised he received advice he would be forced to return to Vietnam if he applied for a TU-572 visa. He did not reveal the source of this advice.
The Tribunal sought an explanation as to why the applicant did not undertake any Bachelor level study at any time. The applicant advised he did not study in the HE sector because his English was poor and he lacked confidence. He did not have any transcripts for this period of time.
Ministerial Direction Number 69
The Tribunal turns to consider Ministerial Direction Number 69 (MD69).
The Tribunal considers cl.9 of MD69 the applicant’s circumstances in his home country.
The applicant advised he came to Australia to experience an independent life away from his family in Vietnam. He advised he did not do any research or preparation as to the availability of suitable courses in Australia. His principal concentration was to get to an English speaking country. He advised his parents were reasonably well off and provided tens of thousands of dollars on an annual basis to cover tuition cost and a significant portion of his living expenses. He advised cousins returning to Australia brought thee funds in cash on a regular basis. He lives with friends in Noble Park. He has returned to Vietnam once for a brief period since 2014. He communicates with family in Vietnam on a regular basis using the tools of social media and finds this a suitable form of communication. He did not express any criticism of this form of communication. He does not own any property or other assets in Vietnam.
The Tribunal is inclined to the view the applicant’s ties to his home country are limited. He does not visit his home country. His family do not visit him in Australia. He has not seen any of his family members since June 2014. He does not own any asserts or have any business interests in Vietnam. He expressed satisfaction with current forms of communication. He did not outline any detail as to community links, ties or engagement to his home country. He did not advise he was in contact with friends from his Diploma days in Vietnam.
The applicant advised he did not have any military service commitments in his home country. He was not aware of any civil or political unrest in Vietnam. He described his likely financial and economic circumstances in Vietnam as above average.
The Tribunal is inclined to the view the applicant’s personal ties to Vietnam are limited and do not act as a significant incentive to return to his home country.
The Tribunal considers cl. 11 of MD69 the applicant’s potential circumstances in Australia.
The applicant outlined his living arrangements as being part of a share house in Noble Park with three other young people. They shared all costs. He regularly received significant remittances from Vietnam. He has cousins living in Melbourne. He has an active social life and attends temple or pagoda with friends for social and cultural events. He works as a handyman in Melbourne. He did not relate his study in a specific way to employment in the future in Vietnam. He did not relate his study to particular employment in a company or enterprise.
The applicant did not provide a statement to either the Department or the Tribunal. The Tribunal is inclined to the view the applicant has established a well ordered life in Australia. That life involves study, community via his temple or pagoda, employment to supplement remittances from home and engagement and interaction with a network of friends. There does not appear any urgency to conclude studies and return home. In his evidence returning home was not a priority. The Tribunal is of the view the applicant has developed a set of ties to Australia that present as a strong incentive to remain in this country.
The Tribunal considers cl. 12 of MD69 the value of the course to the applicant’s future.
The applicants study history in Australia has been inconsistent. There is little evidence of progress from 2013 until late 2015. The applicant blamed his lack of English language skills for non-achievement in his early days in Australia. The applicant repeatedly refused to advise the Tribunal as to his activities from July 2013 until he commenced study in a Certificate IV in Business. He advised he enrolled and re-enrolled in a series of courses. He agreed he did not study and did not progress. He did not offer an explanation as to why he did not study in the HE sector whilst he was a holder of a TU-573 visa.
The applicant holds a Diploma in Food Technology from a reputable University in Vietnam conferred after three years of study. An examination of the transcript provided to the Tribunal shows nearly all of the units studied in Vietnam ae equivalent to units studies in a Bachelor level science degree in Australia. In evidence the applicant advised he thought member s of his family would offer him employment in the hospitality sector in his home country. He did not relate his more recent studies to future employment or a future position in a major enterprise. He did not discuss the detail of his studies in any way. He did not relate his studies to a future career plan.
The Tribunal is inclined to the view the applicant’s proposed studies are not consistent with prior studies in Vietnam. The applicant did not advise study at Advanced Diploma level or Bachelor level would assist him to obtain employment or improve his employment prospects in Vietnam. He was of the view family obligations would result in his placement in employment in his home country. He advised the Department he wanted to return to Vietnam to open a business. In evidence to the Tribunal he did not provide any detail of that business. He advised the Tribunal he worked as a handyman on an irregular basis. He did not relate his studies to that work. The Tribunal is unable to detect any relevance in the applicant’s propose course of study to past or future employment.
The Tribunal considers cl. 13 and 14 of MD69 the applicant’s immigration history.
The applicant entered Australia to do a package of courses starting with English and progressing to study in the HE sector. He had multiple enrolments in the HE sector. He advised he could not provide any transcripts that showed any progress in these many enrolments. He advised the Tribunal his multiple enrolment s in the HE sector in the period 2014 until 2016 were generally all cancelled for reason of “non-commencement of studies”. The applicant has enrolled in a series of short, inexpensive courses. There has been progress of late. That progress though has been minimal.

The applicant advised previous applications for visas had not been refused and that other countries had not refused him a visa.
The Tribunal is inclined to the view the applicant is using the student visa primarily for maintaining residence in Australia.
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
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Mark Bishop
Member

[2018] AATA 4562

28 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Intention

Statutory Construction