Vu Vu (Migration)

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Vu Vu (Migration) [2019] AATA 5740 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Hai Ninh Vu Vu (‘First Applicant’)
Mr Mao Ye (‘Second Applicant’)
Miss Yang Xin Ye (‘Third Applicant’)

CASE NUMBER:  1806954

DIBP REFERENCE(S):  BCC2018/490735

MEMBER:Dr Jason Harkess

DATE:18 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the Applicants Student (Temporary) (Class TU) (Subclass 500) visas.

Statement made on 18 December 2019 at 1:51pm  

CATCHWORDS
MIGRATION – Student (Temporary)(Class TU) visa – subclass 500 (Student) – genuine student – held five consecutive student visas – changed from hospitality course to mental health – course change reactive to visa refusal – job prospects – remuneration – significant periods applicant failed to progress academically – incentives to remain in Australia – economic circumstances – 12 years residence in Australia – compliant student – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth), s 10
Migration Act 1958 (Cth), ss 65, 359, 499
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.211, 500.212, 500.311

CASES
Chen v Minister for Immigration and Border Protection [2017] FCA 46
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Saini v Minister of Immigration [2016] FCA 858
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112

STATEMENT OF DECISION AND REASONS

OVERVIEW

Visa Refusal – Application for Review

  1. The Applicants seek review of decisions made by a delegate of the Minister for Home Affairs (‘the Minister’)[1] on 14 March 2018 refusing to grant them student visas. The Applicants originally applied for their student visas on 30 January 2018.

    [1] The Minister for Home Affairs was formerly known as the Minister for Immigration and Border Protection.

  1. The First Applicant is a citizen of Vietnam and is 27 years of age. The Second Applicant is a citizen of China, is 35 years old, and is the spouse of the First Applicant. The Third Applicant, who is four years old, is their daughter.[2]

    [2] The Tribunal has sighted a copy of the Third Applicant’s birth certificate, issued by the Tasmanian government, that was produced by the Applicants when they lodged their original student visa application with the Department of Home Affairs on 30 January 2018. That birth certificate verifies that the Third Applicant is the child of the First and Second Applicants. The Tribunal has also sighted a copy of the First and Second Applicants’ marriage certificate, which was also included as evidence in support of their original application lodged with the Department. In the circumstances of this evidence, and all other evidence received by the Tribunal in relation to the present application on review, the Tribunal is satisfied that the marriage between the First and Second Applicants is genuine, and that the Third Applicant is their daughter. The Tribunal has therefore proceeded to determine the present application on review on the basis…

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Details
Case
[2019] AATA 5740
Decision Date

CaseChat Overview and Summary

This matter concerned an application for Student (Temporary) (Class TU) (Subclass 500) visas by the First, Second, and Third Applicants. The core dispute revolved around whether the First Applicant genuinely intended to stay in Australia temporarily as a student, a requirement under the migration regulations. The decision was made by Dr Jason Harkess of the Tribunal.

The legal issues before the Tribunal were whether the First Applicant met the criteria for a genuine temporary entrant under clause 500.212 of the Migration Regulations 1994, and consequently, whether the Second and Third Applicants also met the criteria for the grant of their visas. This involved assessing the First Applicant's study history, her reasons for course changes, her prolonged period of residence in Australia, and the circumstances surrounding her failure to maintain academic progress due to childcare responsibilities.

The Tribunal reasoned that while the First Applicant had initially met the primary criteria for a student visa, her subsequent conduct indicated she was not a genuine temporary entrant. The Tribunal found that the birth of her child and her role as primary caregiver, while a significant life event, did not constitute "compassionate or compelling circumstances" that would justify a suspension of her studies under the National Code of Practice for Providers of Education and Training to Overseas Students 2018. The Tribunal noted that the student visa framework is not designed to facilitate long-term residence for individuals acting as primary caregivers for young children while also studying full-time. Furthermore, the First Applicant's history of holding five consecutive student visas over 12 years, coupled with periods of academic non-progression and a shift in focus from study to personal life events, led the Tribunal to conclude that her intention to remain in Australia temporarily was not genuine. The Tribunal found it probable that she would seek further student visas upon expiry, indicating a pattern of using the student visa program to maintain ongoing residence rather than for its intended purpose.

Consequently, the Tribunal affirmed the decisions not to grant the Applicants Student (Temporary) (Class TU) (Subclass 500) visas, as the First Applicant failed to meet the primary criteria for a genuine temporary entrant, which in turn meant the Second and Third Applicants also failed to meet the criteria for their respective visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

While no claim has been made by the First Applicant that she was formally exempted from compliance with Condition 8202, the Tribunal has contemplated whether the circumstances of the birth of the Third Applicant, and the caring responsibilities that would necessarily follow, would have allowed her to seek such an exemption. There are very limited circumstances in which a student visa holder can seek a deferment or suspension of their studies once they have enrolled in a course. The National Code of Practice for Providers of Education and Training to Overseas Students 2018 (‘the National Code’) permits course providers, upon application by a student visa holder, to defer or suspend a current enrolment if there are ‘compassionate or compelling circumstances’ for doing so.[64] The Department of Education and Training provides guidance as to what types of situation amount to ‘compassionate or compelling circumstances’. They are considered to be ‘generally those beyond the control of the overseas student and which have an impact upon the overseas student’s course progress or wellbeing.’[65] The Department of Education and Training lists examples of such situations. They include serious illness or injury, bereavement of a close relative, major political upheaval or a natural disaster requiring the student to return to their home country, suffering a traumatic experience such as witnessing a serious accident, or witnessing or being the victim of a serious crime. Notably, the list of examples does not include parental leave as a reason for excusing a student visa holder from their ongoing study requirements.[64] See National Code of Practice for Providers of Education and Training to Overseas Students 2018, Standard 9.1. The National Code was made by the Minister for Education and Training under s 33(1) of the Education Services for Overseas Students Act 2000 (Cth) on 4 September 2017. [65] Department of Education and Training, National Code 2018 Factsheets, ‘Standard 9: Deferring, suspending or cancelling the overseas student’s enrolment’, 3. The factsheet can be accessed at < type="1">While, the list does not purport to be exhaustive, all the examples listed appear to have two common elements. First, the situation that has arisen must be one that was largely out of the visa holder’s control. Second, the examples suggest that the time needed away from study will be relatively short. In relation to this second element, that inference is drawn having regard to the temporary nature of the disrupting event. Furthermore, consideration must be given to the fact that a course will continue to run, and an expiry of a temporary student visa will draw nearer, in the visa holder’s absence from studies. A suspension must necessarily be short in order to preserve the fundamental purposes that the enrolment and the student visa are designed to serve. A period of suspension from studies for compelling or compassionate reasons is therefore likely to be measured in ‘weeks’ or ‘months’, and not in ‘years’.The Tribunal does not accept Mr Duri’s submission that the birth of the Third Applicant, and the assumption of parental responsibilities by the First Applicant, amounted to a situation out of the First Applicant’s control. Starting a family and taking on the important role of caring for a newborn are decisions that are typically within a person’s control. The Tribunal also does not accept the submission that the First Applicant put her life ‘on hold’ while she assumed the responsibility of acting as primary carer of the Third Applicant. On the contrary, the First Applicant’s life has most likely continued to go on, being significantly enriched as a result of having a child. She and the Second Applicant have probably been relishing the daily life experience of having a child, from the discovery of the pregnancy in late 2014 or early 2015 through to the ongoing satisfaction of being parents to a four-year-old daughter today. In this respect, it must be recognised that becoming a parent and assuming the primary care for a child is a long-term commitment that is undertaken by a parent for many years. It is not a short-term situation giving rise to compelling or compassionate circumstances that would justify a permissible suspension of a student visa holder’s studies under the National Code.The Regulations otherwise do not make provision for a student visa holder to be exempted from the requirements of Condition 8202 under any circumstances. There is certainly no specific provision that permits a student visa holder to be excused from their essential study obligations because of their parental responsibilities. The requirement for a student visa holder to remain effectively engaged with their studies is strict.Having regard to the regulatory framework, and the very limited circumstances in which a student visa holder can suspend their studies under the National Code, it is difficult to see how the First Applicant’s disengagement from studies in 2016 was justified. As Mr Duri correctly pointed out in oral submissions, the First Applicant was always entitled to have a child. However, the First Applicant’s continuing obligations as a student visa holder in Australia did not cease when the Third Applicant was born. While there are some student visa holders residing in Australia who manage to act as a primary caregiver for their child while maintaining compliance with their study obligations, it is apparent that the First Applicant was not able to do so. The reality of the situation is that Australia’s student visa regulatory scheme is not designed to facilitate non-citizens remaining in Australia while studying full-time and acting as a primary caregiver for their infant child. A student visa holder must continue to engage effectively as a full-time student notwithstanding that they may become a parent. By de-prioritising that obligation from 2016 to 2018, and continuing to remain in Australia, the First Applicant acted in a manner that was inconsistent with the behaviour expected of a genuine temporary student visa holder.It appears to the Tribunal that at some point after arriving in Australia, the First Applicant’s focus in life shifted from study pursuits to developing a relationship with the Second Applicant, then to marriage, and then to starting a family. Studying became a mere incident of living in Australia rather than remaining the primary purpose of her stay. Having regard to how life events have evolved for the First Applicant in Australia over the last 12 years, today one might be forgiven for thinking that she has settled down in Australia, were they unaware of her temporary student visa status. The Tribunal accepts that she has made some effort to restore the proper focus by enrolling in and progressing with the Diploma of Mental Health. However, the sheer length of her stay in Australia to date, coupled with the significant developments that have occurred in her life since her arrival, make it very difficult to accept that she remains a genuine temporary student visa applicant.First Applicant’s Student Visa Application HistoryThe Tribunal is now presented with a situation involving a non-citizen who is applying for her sixth consecutive temporary student visa after 12 years of continuous residence in Australia. The First Applicant has declared to the Tribunal that it is her intention to remain here only temporarily, and that she will depart Australia following completion of her Diploma of Mental Health Course in October 2020. She has made similar declarations on five previous occasions and been granted five student visas on the basis that her declared intentions were found to be genuine. Yet she has continued to reside in Australia following the expiry of each of those visas, only to apply for another. It is a consistent pattern of behaviour that is, upon the sixth student visa application, now to be regarded as inconsistent with the kind of conduct to be expected of a genuine student residing in Australia.The Tribunal accepts that plans can change after a student visa is granted. As Mr Duri also correctly pointed out, the Regulations place no cap on the number of student visa applications that may be made by a non-citizen. A change in plans and a subsequent student visa application does not necessarily mean that the originally declared intentions were disingenuous. Indeed, for the purposes the present application on review, the Tribunal accepts that the First Applicant’s previous five declarations of intent to remain in Australia temporarily were genuine. The Tribunal also does not question the genuineness of the First Applicant’s change of intentions, such that she decided to remain in Australia following the grant of the visa, in relation to each of the first four of those student visas.However, the change in plans following the grant of the fifth student visa, being the most recent visa that was issued, is a significant cause for concern. With each consecutive student visa application, a non-citizen’s stay in Australia becomes less ‘temporary’ and more ‘permanent’. There is no such thing as a genuine student in perpetuity. But that is what the First Applicant appears to be. If her visa is granted, the First Applicant’s pattern of conduct over the past 12 years is sufficiently clear and consistent for the Tribunal to find that it is probable that she would apply for yet another student visa when that visa nears expiry in October 2020.In the absence of a satisfactory explanation, a sixth consecutive temporary student visa application made by a non-citizen who has remained in Australia for a 12-year continuous period may be regarded as conduct that is generally inconsistent with a valid claim of being a genuine applicant for a student visa. The First Applicant has not been able to convince the Tribunal otherwise. Indeed, there is a significant body of evidence, as considered above, that suggests the First Applicant is attempting to use the student visa program to maintain ongoing residence. The Tribunal therefore finds it very difficult to see the credibility to be found in her claims that she intends to depart Australia following completion of the Diploma of Mental Health course.No Other Immigration ConcernsBeyond general concerns relating to the Applicants’ stay in Australia to date, that have been considered above, there is no other immigration history relating to any of the Applicants that is of concern to the Tribunal. Specifically, the Tribunal is not aware of any visa previously held by the Applicants, either in Australia or in another country that was cancelled or considered for cancellation. The Tribunal has no reason to believe that any of the Applicants have not complied with the conditions of any other visa held by them in Australia or in another country. There is no material before the Tribunal suggesting the Applicants have breached the migration laws of any other country. This information all lies in their favour.The Tribunal notes that Mr Duri drew the Tribunal’s attention to the fact that the First Applicant’s fifth student visa was, at first instance, refused. However, on appeal to the then Migration Review Tribunal, that decision was overturned. The First Applicant was subsequently granted the student visa. In these circumstances, the Tribunal does not regard the first-instance refusal as constituting an adverse aspect of the First Applicant’s immigration history.ConclusionThe First Applicant claims to be a genuine applicant for entry and stay as a student in Australia because she intends genuinely to stay in Australia temporarily and because she intends to comply with the conditions of a student visa. Specifically, she has claimed that she intends to stay in Australia to complete a Diploma of Mental Health and, following its completion in October 2020, she intends to depart Australia with her family, the Second and Third Applicants, and will return to her home country of Vietnam.The Tribunal makes the following findings in relation the Applicants’ circumstances in their home country:(a) A Diploma of Mental Health, or similar courses at the Diploma-level, are not offered in the First Applicant’s home country of Vietnam. There is a tangible benefit to be gained by someone in the First Applicant’s position, who has yet to attain a Diploma-level qualification, by studying the Diploma of Mental Health in Australia as opposed to in Vietnam.(b) The Applicants have strong familial ties to Vietnam and China. These ties are operating as a significant incentive for the Applicants to return to their home countries of Vietnam and China.(c) Apart from family, the Applicants do not have any significant community ties in Vietnam or China that give rise to circumstances that serve as a significant incentive for them to return to either of their home countries.(d) The First and Second Applicants own assets, or have contingent beneficial interests in assets, in China and Vietnam. However, these assets are not of such a nature as to be operating as a significant incentive for the Applicants to return to either Vietnam or China.(e) The social and economic conditions in Australia are generally better than they are in Vietnam and China. Australia’s social and economic conditions present as a significant incentive for the Applicants not to return to either of their home countries.(f) There are no military service commitments or political or civil unrest of concern to the First and Second Applicants, in either Vietnam or China, that present as a significant incentive for the Applicants either not to return to their home country or to apply for student visas as a means of obtaining entry to Australia for the purpose of remaining indefinitely.The Tribunal makes the following findings in relation to the Applicants’ potential circumstances in Australia:(a) The First Applicant originally arrived in Australia in 2007 and has been residing in Australia on a continuous basis for 12 years as a temporary resident. While in Australia, she has studied, married the Second Applicant, and given birth to the Third Applicant. The First and Second Applicants’ marriage is genuine and, together with the Third Applicant, they constitute a cohesive family unit currently living in Australia.(b) Apart from each other, the Applicants do not have any close family relatives living in Australia.(c) The First and Second Applicants are satisfied with living in Australia. They have become accustomed to the Australian way of life and their ties to the Australian community have strengthened over time. The Third Applicant has only ever known Australia as her home. If the Applicants were to leave Australia now, or in the near future, it would involve major upheaval in their lives.(d) The First Applicant is part-way through studying a Diploma of Mental Health, which she commenced in Australia in October 2018. She is making satisfactory progress and is due to complete this course in October 2020. The First Applicant is aware of how this qualification will enhance her education and skillset. She is genuinely interested in the subject matter. It is likely that she will successfully complete this course if she is permitted to stay in Australia. (e) The Applicants have the financial means to stay in Australia on a longer-term basis after the First Applicant completes the Diploma of Mental Health in October 2020.(f) If the Third Applicant is permitted to remain in Australia until August 2025, she will acquire Australian citizenship by the operation of law. The First and Second Applicants may then be eligible to apply for Contributory Parent visas, providing a pathway to permanent residence in Australia for the entire family.(g) The First Applicant would prefer to remain in Australia with her family permanently. She does not intend to depart Australia following completion of her Diploma of Mental Health course in October 2020.(h) The First Applicant is attempting to obtain a student visa to maintain ongoing residence in Australia.(i) The First Applicant is attempting to use the student visa program to circumvent the intentions of Australia’s migration program.The Tribunal makes the following findings in relation to the value of the Diploma of Mental Health course to the First Applicant’s future:(a) The First Applicant has not previously completed a Diploma-level qualification. The Diploma of Mental Health would be the highest educational qualification that she has obtained, once it is completed.(b) A Diploma of Mental Health bears some relation to courses that the First Applicant successfully completed from 2013 to 2015, namely a Certificate III in Aged Care, a Certificate III in Home and Community Care, a Certificate III in Disability, a Certificate III in Early Childhood Education and Care and a Certificate IV in Community Services Work.(c) A Diploma of Mental Health bears some relation to the First Applicant’s work experience gained at a residential aged-care facility from 2013 to 2016.(d) As a collection of qualifications, a Certificate III in Aged Care, a Certificate III in Home and Community Care, a Certificate III in Disability, a Certificate III in Early Childhood Education and Care and a Certificate IV in Community Services Work and a Diploma of Mental Health:(i) do not form a cohesive collection of qualifications for a particular career trajectory;(ii) do not materially improve the First Applicant’s overall employability;(iii) do not materially improve the First Applicant’s ability to command a higher level of remuneration or otherwise to increase her general earnings.(e) The First Applicant’s enrolment in a Diploma of Hospitality Management course in 2017 did not bear any apparent relation to her previous studies in community healthcare or social work, nor does it bear any relation to her current enrolment in the Diploma of Mental Health in 2018.(f) The First Applicant’s decision to enrol in a Diploma of Mental Health that commenced in October 2018 was at least partly motivated by the First Applicant’s desire to increase her chances for a successful visa outcome in the present review application.(g) The First Applicant’s decision to enrol in a Diploma of Mental Health in 2018 is not a reasonable decision to change career pathways from her previous pathway of hospitality management that her previous enrolment in 2017 represented.(h) It is not necessary to obtain a Diploma of Mental Health in order for the First Applicant to open a mental health clinic, upon her return to Vietnam, of the kind described by the First Applicant.(i) The First Applicant does not genuinely intend to open a mental health clinic upon her return to Vietnam following completion of the Diploma of Mental Health course in October 2020.The Tribunal makes the following findings in relation the First Applicant’s immigration history:(a) The present application on review represents the First Applicant’s sixth successive student visa application in Australia. She has resided in Australia on student visas, and associated bridging visas, for more than 12 years since 2007 for the express purpose of studying full-time in Australia.(b) If the First Applicant is granted her sixth student visa, it is likely that she will apply for a seventh when the sixth visa nears its expiry in October 2020.(c) The First Applicant has successfully completed several courses since she has been in Australia. She has maintained enrolment and satisfactory progress as a full-time student in courses in which she has been enrolled from 2007 to 2015, inclusive. That period represents a continuous nine-year period during which the First Applicant has demonstrated a propensity to be a good student.(d) From 2013 to 2015 the First Applicant undertook and successfully completed a series of relatively short, inexpensive courses in Australia, namely a Certificate III in Aged Care, a Certificate III in Home and Community Care, a Certificate III in Disability, a Certificate III in Early Childhood Education and Care and a Certificate IV in Community Services.(e) The First Applicant failed to study anything in 2016 and was most likely in breach of one or more conditions of her fifth student visa that year. (f) The First Applicant commenced, but failed to successfully complete a short, inexpensive course in 2017, namely a Diploma of Public Health.(g) From January 2016 to September 2018, the First Applicant spent 33 months either not studying anything at all, or failing to make any meaningful progress in relation to the courses in which she was enrolled.(h) The deterioration of the First Applicant’s study habits during this period was caused by her decision to prioritise the care of her child, the Third Applicant, ahead of her studies.(i) Other than the matters specifically raised in the Tribunal’s reasons for its decision contained herein, the Applicants have no concerning immigration history either in Australia or in other countries.(j) While the findings in paragraphs 103(c), 103(d) and 103(i) are consistent with the First Applicant’s claim of that she is a genuine applicant for entry and stay as a student in Australia because she genuinely intends to stay in Australia temporarily, the findings in paragraphs 103(a), 103(b), 103(e), 103(f), 103(g) and 103(h) are inconsistent with that claim.Having regard to all the above considerations, the Tribunal is not satisfied that the First Applicant meets the criteria contained in cl 500.212 because it is not satisfied that she genuinely intends to stay in Australia as a student temporarily.SUMMARYAlthough the First Applicant meets the primary criteria for the grant of a student visa contained in cl 500.211, she does not meet the primary criteria contained in cl 500.212(a).Because the First Applicant fails to meet the primary criteria, the Second and Third Applicants also fail to meet the criteria for the grant of a student visa.DECISIONThe Tribunal affirms the decisions not to grant the Applicants Student (Temporary) (Class TU) (Subclass 500) visas.Dr Jason HarkessMember

Ratio Decidendi

Legal Principle Established

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