Vu Vu (Migration)
[2019] AATA 5740
•18 December 2019
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
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.
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 that the Applicants are a cohesive family unit.
For the following reasons, the Tribunal has concluded that the decisions under review ought to be affirmed.
Type of Visa
The specific type of visa the Applicants applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Student (Temporary) (Class TU) (Subclass 500) visa.[3] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’).
[3] See Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 500.1 to 590.612.
If granted, a student visa permits a non-citizen to enter and remain in Australia to study full-time on a temporary basis. An applicant’s family members may also join the application so that they too are issued with visas permitting them to stay in Australia for the duration of the main applicant’s studies.
Applicable Criteria
In this case there are three applicants. The First Applicant is the main applicant. She seeks a student visa so that she can reside in Australia while undertaking a course of study. For the visa to be granted, she must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.[4]
[4] See Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.
The Second and Third Applicants seek student visas as members of the First Applicant’s family unit. The grant of a student visa to a family member of the main applicant is contingent on both the main applicant meeting the primary criteria and the family member meeting the secondary criteria.[5] For a family member to have any prospect of a successful visa outcome, the main applicant first needs to receive a favourable outcome in relation to their application. If the main applicant’s case fails, so too must any connected family member’s application.
[5] Migration Regulations 1994 (Cth), Sch 2, cl 500.311.
Reasons for Initial Refusal
The student visas were refused in this case because the delegate found that the First Applicant did not satisfy the primary criteria contained in cl 500.212 of Schedule 2 of the Regulations. The delegate was not satisfied that she was a genuine applicant for entry and stay as a student.
The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Tribunal by the Applicants when they lodged their review application on 15 March 2018.
Issues for Determination
Clauses 500.211 to 500.218 of Schedule 2 of the Regulations (‘cl 500.211’ to ‘cl 500.218’, respectively) contain the primary criteria relating to the grant of Subclass 500 student visas. In this case, only the following issues arise for consideration and determination by the Tribunal:
(a) whether the First Applicant is currently enrolled in a course of study, as required by cl 500.211 (‘the enrolment criterion’); and
(b) whether the First Applicant is a genuine applicant for entry and stay as a student in Australia, as required by cl 500.212 (‘the genuine applicant criterion’).
The Tribunal has concluded that the decision under review ought to be affirmed in this case because the First Applicant does not meet the genuine applicant criterion.
Hearing of Application
The Tribunal convened a hearing to consider the merits of the application on 31 July 2019. The First and Second Applicants appeared at the hearing to give evidence and present arguments. The Third Applicant did not participate in the hearing.
The Applicants were assisted in relation to their application on review by their registered migration agent, Mr Alan Duri, who also attended the hearing and made submissions on their behalf.
The hearing was conducted with the assistance of interpreters in the Vietnamese, Mandarin and English languages.
ENROLMENT CRITERION
Clause 500.211 requires that a student visa application be founded on evidence of the applicant being enrolled in ‘a course of study’.[6] A ‘course of study’ is defined as ‘a full-time registered course of study.’[7] A ‘registered course’ is one which is provided by an institution which has been registered under the Education Services for Overseas Students Act 2000 (Cth) (‘ESOS Act’) to provide that course to overseas students.[8]
[6] Migration Regulations 1994 (Cth), Sch 2, cl 500.211(a). The present case is not advanced on the basis that the First Applicant satisfies any of the other criteria contained in cls 500.211(b), (c) and (d).
[7] Migration Regulations 1994 (Cth), reg 1.03.
[8] Migration Regulations 1994 (Cth), reg 1.03.
Proving Enrolment
All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[9] Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[10] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia.
[9] Education Services for Overseas Students Act 2000 (Cth), s 10.
[10] See generally Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).
Upon enrolling an international student into a registered course of study, the course provider will enter the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘CoE’) for the student. The CoE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of cl 500.211. Producing a valid and current CoE is the usual means by which an applicant can establish the criteria contained in cl 500.211 are met.
Is the First Applicant Currently Enrolled?
In this case, the Applicants advanced the applications for student visas on the basis that the First Applicant wishes to undertake one particular course of study. The First Applicant produced a CoE generated by the PRISMS database in support of their case. That CoE bears reference code 9E034F82 and was generated on 1 August 2018. As at that date, it shows that the First Applicant was enrolled in a Diploma of Mental Health course at Australia Learning Group Pty Ltd. The course has a start date of 5 October 2018 and an end date of 1 October 2020. The cost of the course is $17,013. On the face of the CoE, the First Applicant has already commenced this course and is part-way through studying.
Prior to the hearing on 31 July 2019, the First Applicant lodged a written statement with the Tribunal on 24 May 2019. That statement was provided as part of the Applicants’ response to a request for further information made by the Tribunal pursuant to s 359(2) of the Act (‘the Applicants’ s 359(2) response’). The statement is dated 23 May 2019 (‘the First Applicant’s 23 May 2019 statement’). In that statement, the First Applicant stated that she was currently studying for a Diploma of Mental Health, that she started the course in October 2018, and that she was due to complete the course in October 2020. The First Applicant also confirmed as much in oral evidence at the hearing before the Tribunal on 31 July 2019. This evidence is entirely consistent with the contents of the CoE referred to above.
Conclusion
The Tribunal is satisfied that the CoE produced in relation to the Diploma of Mental Health course represents a valid and current enrolment. The Tribunal finds that the First Applicant meets the criteria contained in cl 500.211.
GENUINE APPLICANT CRITERION
The critical issue in this case is whether the First Applicant satisfies the primary criteria contained in cl 500.212. That clause states that for a student visa application to be successful, the applicant must be ‘a genuine applicant for entry and stay as a student’ in Australia.[11]
[11] Migration Regulations 1994 (Cth), Sch 2, cl 500.212.
Meaning of ‘Genuine Applicant’
While not defined in the Regulations, the word ‘genuine’ may be taken to mean ‘authentic, ‘real’ or ‘true’, according to its ordinary and natural meaning.[12] The Regulations also specify two constituent elements of a genuine student visa applicant.
[12] See the entry for ‘genuine’ in Oxford English Dictionary (Oxford University Press, 2nd ed, 1989); Macquarie Dictionary (Macquarie Dictionary Publishers, 7th ed, 2017).
First, an applicant is regarded as a genuine applicant because he or she ‘intends genuinely to stay in Australia temporarily.’[13] The applicant must demonstrate an intention to stay in Australia for a limited time only – not permanently. That intention must be unqualified.[14] This requirement reflects the temporary nature of being a student. A person chooses to study to meet a passing need to obtain specific skills and formal qualifications that will, in turn, place them in a better position with respect to future employment opportunities. Once they have had a reasonable amount of time to complete their studies, it is expected that the visa holder will immediately depart Australia.
[13] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(a).
[14] See Saini v Minister of Immigration and Border Protection [2015] FCCA 2379, [23], upheld on appeal in Saini v Minister of Immigration [2016] FCA 858.
The Tribunal acknowledges that this expectation is not without qualification. A student visa holder’s circumstances may change while studying in Australia. They may genuinely wish to extend their stay so they can undertake further study, such that there is a need for a further student visa application to be made. Alternatively, as a result of a personal relationship entered into with a permanent resident or Australian citizen, or an employer sponsorship, or for some other reason, they may wish to extend their stay in Australia by other legitimate means. And so, the student visa holder may become eligible to apply for another kind of visa before their student visa expires. However, in the absence of such circumstances arising, the general expectation remains. A student visa is granted anticipating that the visa holder will eventually cease being a student, return to their home country, and enter the workforce to put their newly acquired skills to economically productive use.
Secondly, a genuine applicant is one who ‘intends to comply with any conditions to which the visa may be subject.’[15] There are several conditions that attach to student visas.[16] The most important of these conditions oblige the visa holder to remain enrolled in a registered course of study,[17] to make satisfactory course progress in their studies,[18] and to attend classes.[19] Furthermore, if the visa holder changes their enrolment, they must avoid ‘downgrading’ to a course that will lead to a qualification of a level that is lower than that of the proposed qualification that resulted in the grant of the visa.[20] These conditions reflect the very essence of being a student. A genuine applicant must demonstrate both an intention to study and an intention to complete a course that is as challenging as the visa grant contemplates.
[15] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(b).
[16] For applicants who satisfy the primary criteria, conditions which are imposed on all student visas are specified in the Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a). They include Conditions 8105 (paid work limitation), 8202 (maintain enrolment in full-time registered course of study, maintain or increase Australian Qualifications Framework level of enrolment in event of course change, attend classes, achieve satisfactory course progress), 8501 (maintain health insurance), 8516 (continuing obligation to satisfy the primary or secondary criteria of the visa, as the case may be), 8517 (make arrangements for the education of school-age dependants), 8532 (extra requirements for minors) and 8533 (notify education provider of changes of address). Further conditions may also be imposed in appropriate cases under cl 500.611(2). These Conditions are set out in Sch 8 of the Regulations.
[17] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(a).
[18] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(c)(i).
[19] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(c)(ii).
[20] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(b). The Regulations expressly draw upon the Australian Qualifications Framework (‘AQF’) as the measure for categorising the level of complexity of a student visa applicant’s proposed course of study. The AQF is the policy for regulated qualifications in the Australian education system. It creates a hierarchy of levels associated with courses of study registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course and/or the depth of achievement and the autonomy required that successful completion of the course represents. AQF level 1 (Certificate I) has the lowest complexity and AQF level 10 (Doctoral Degree) has the highest complexity. The AQF is administered by the Department of Education and Training. See generally < (accessed 16 December 2016).
Ascertaining an Applicant’s Intentions
Ascertaining an applicant’s intentions calls for an inquiry into their state of mind. The Regulations direct the Tribunal to consider an applicant’s state of mind as it is at the time the Tribunal makes its decision.[21] That effectively means that the Tribunal must take a ‘snap shot’ of the applicant’s intentions, at that time, to determine whether the criteria under cl 500.212 are met.
[21] Saini v MIBP [2016] FCA 858, [30]: ‘What is required is an evaluation of intention at the time of decision, and if at this time there is a settled intention to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention genuinely to stay temporarily.’
Nobody has direct access to an applicant’s mental thought processes. The Tribunal must therefore look to sources of evidence, extraneous to an applicant’s mind, from which reasonable inferences may be drawn as to what their actual intentions are likely to be.
Declared Intentions
A convenient starting point is to consider any relevant stated intentions that may have been made by an applicant. The Regulations specifically oblige the Tribunal to take into account an applicant’s stated intentions.[22] Reference may be made to any relevant statements made by the applicant in oral evidence or contained in documentary material before the Tribunal. Consideration may also be given to other statements previously made, such as those contained in the applicant’s original visa application lodged with the Department of Home Affairs (‘the Department’).[23]
[22] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(b)(ii).
[23] The Department of Home Affairs was formerly known as the Department of Immigration and Border Protection.
The Tribunal is mindful that the expressed intentions of an applicant are not necessarily determinative. They may even be unhelpful on occasions. Statements made by an applicant are potentially unreliable because they tend to be self-serving. Many student visa applicants are likely to declare that they intend to stay in Australia temporarily, and to comply with any visa conditions, because that is what the law requires of them to be granted a visa. Indeed, it is a standard requirement that an applicant must make such formal declarations upon lodging their visa application with the Department.[24] The Tribunal must therefore look beyond an applicant’s stated intentions and consider more objective evidence that may tend to support or undermine an applicant’s declared intentions.
Objective Considerations and Direction No 69
[24] In their original application lodged with the Department on 30 January 2018, the Applicants expressly declared, among other declarations, that they understand that: (1) ‘a student visa is a temporary visa and that being granted a student visa will not guarantee that they will be eligible for the grant of a further visa to stay in Australia, including a skilled migration visa’; (2) ‘if they cannot obtain a further visa they must depart Australia on or before the cease date of the student visa’; and (3) ‘if granted a student visa, they are required to understand and abide by its conditions’.
The Tribunal is specifically directed to objective considerations by the Regulations. In relation to the question of whether an applicant intends genuinely to stay in Australia temporarily, cl 500.212(a) obliges the Tribunal to have regard to the applicant’s circumstances[25] and immigration history.[26] On the question of whether an applicant intends to comply with the conditions attaching to the visa, cl 500.212(b) obliges the Tribunal to have regard to the applicant’s record of compliance with the conditions of any previous visas issued.[27]
[25] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(a)(i).
[26] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(a)(ii). Clause 500.212(a)(iii) also requires the Tribunal to have regard to the intentions of a parent, legal guardian or spouse of an applicant, if the applicant is a minor. This particular consideration is not germane to the present case because the First Applicant is not a minor.
[27] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(b)(i).
The issue of whether an applicant intends genuinely to stay in Australia as a student temporarily is of particular concern to the Australian government. The Tribunal must have regard to ‘Direction No 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications’ (‘Direction No 69’) that was issued by the Minister on 1 July 2016.[28] Direction No 69 elaborates upon the regulatory criteria contained in cl 500.212(a). It requires the Tribunal to consider an applicant’s circumstances in their home country,[29] their potential circumstances in Australia,[30] the value of the proposed course of study to their future,[31] and their immigration history.[32]
[28] Minister for Immigration and Border Protection, ‘Direction No 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications’ (commencing on 1 July 2016).
[29] Direction No 69, cls 6, 9, 10. This includes taking into account the following: the applicant’s reasons for not undertaking the proposed study in their own country or region (cl 9(a)); their personal ties to their home country and whether those ties would serve as a significant incentive for them to return home (cl 9(b)); their economic circumstances (cl 9(c), 10); potential military service commitments in their home country (cl 9(d)); and political and civil unrest in their home country (cl 9(e)).
[30] Direction No 69, cls 6, 11. This includes taking into account the following: the applicant’s ties with Australia, which may include family and community ties (cl 11(a)); evidence that the student visa program is being used to circumvent the intentions of the migration program (cl 11(b)); whether the student visa is being used to maintain ongoing residence (cl 11(c)); whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful student visa application outcome (cl 11(d)); the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider (cl 11(e)); the applicant’s previous study and qualifications (cl 11(e)); the realistic level of knowledge an applicant is expected to have, and the level of research they have undertaken, in relation to their proposed course of study and living arrangements (cl 11(e)).
[31] Direction No 69, cl 12. This includes taking into account the following: whether the student is seeking to undertake a course that is consistent with their current level of education (cl 12(a)); whether the course will assist the applicant to obtain employment or improve employment prospects in their home country (cl 12(a)); whether the applicant has made any reasonable changes to career or study pathways (cl 12(a)); the relevance of the course to the applicant’s past or proposed future employment either in their home country or a third country (cl 12(b));
[32] Direction No 69, cls 4, 5, 13, 14. An applicant’s immigration history includes both their visa history and travel history (cl 13). Consideration should be given to the following: the applicant’s previous visa applications for Australia or other countries, including pending applications, and the circumstances of any visa applications being refused (cl 14(a)); the extent of an applicant’s compliance with visa conditions and whether they left the country before their visa expired (cl 14(b)(i)); whether a previously held visa was cancelled or considered for cancellation (cl 14(b)(ii)); the amount of time an applicant has spent in Australia (cl 14(b)(iii)); whether the student visa may be used primarily for maintaining ongoing residence in Australia (cl 14(b)(iii); whether an applicant has undertaken a series of short, inexpensive courses (cl 14(b)(iii)); whether an applicant has been in Australia for some time without successfully completing a qualification (cl 14(b)(iii)); the extent to which an applicant has complied with the migration laws of other countries (cl 14(b)(iv)).
Direction No 69 also states that weight should be placed on an applicant’s circumstances that indicate that the student visa is intended primarily for maintaining residence in Australia.[33] The circumstances of some student visa applications may require the Tribunal to engage in further scrutiny of the merits of the application.[34]
[33] Direction No 69, cl 8.
[34] Direction No 69, cl 4. Specifically, cl 4 directs attention to the following matters: relevant information on migration fraud and immigration compliance compiled by the Department (cl 4(a)); whether an applicant or applicant’s relative has a concerning immigration history (cl 4(b)); whether an applicant’s proposed course is unrelated to previous studies or employment (cl 4(c)); apparent inconsistencies in information provided by the applicant in their student visa application (cl 4(d)).
Direction No 69 also stipulates that the factors specified in it should not be used as a checklist. They are intended only as a guide for decision makers, which includes the Tribunal, when they come to consider an applicant’s circumstances as a whole in determining whether the applicant satisfies the genuine temporary entrant criterion.[35] The Tribunal should assess whether, on balance, the genuine temporary entrant criterion is satisfied by considering the applicant against all factors specified in Direction No 69 as well as any other relevant information provided by the applicant or that is otherwise available to the Tribunal.[36] Other relevant information includes information that may be either beneficial or unfavourable to the applicant.[37] Ultimately, the Tribunal should refuse the visa (or, in this case, affirm the delegate’s decision) if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia.[38]
[35] Direction No 69, cl 1.
[36] Direction No 69, cl 2.
[37] Direction No 69, cl 16.
[38] Direction No 69, cl 5.
Direction No 69 is a lawful direction of the Minister made in accordance with s 499 of the Act. The Tribunal is therefore bound to consider it and, to the extent that its terms are relevant, apply it to the Applicants’ case.[39] Accordingly, the terms of Direction 69 and their application to the First Applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusion as to the merits of the First Applicant’s case, which includes an assessment of how and to what extent each factor in Direction No 69 is relevant and applicable, independently of any conclusions reached by the delegate.
[39] FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].
Finally, it is appropriate to note that the specific considerations referred to in both the Regulations and in Direction No 69 are not exhaustive. The Tribunal may have regard to any other matter that is relevant in determining whether an applicant is a genuine applicant for entry and stay as a student in Australia.[40]
[40] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(c); Direction No 69, cls 2(b), 5, 16.
Does the First Applicant Meet the Genuine Applicant Criterion?
First Applicant’s Declared Intentions
In the Applicants’ original student visa application form, lodged with the Department on 30 January 2018, the Applicants had advanced their case on the basis that the First Applicant was enrolled in and wished to complete a Diploma of Hospitality Management. The First Applicant made a statutory declaration, which was included with the application, dated 21 January 2018. In that statutory declaration she explained her reasons for wanting to undertake the hospitality course. She stated that after ‘careful consideration’ she had formed the view that studying hospitality was the best option for her. This was because, in her view, Vietnam’s hospitality industry was beginning to flourish and so job opportunities in the sector were on the rise. She also referred to the many varieties of job within the hospitality sector that were on offer, such as those offered in ‘hotels, cruise ships, restaurants and guest houses.’ She indicated it was her intention to use the Diploma of Hospitality Management for her future career. She also stated in the visa application form itself that she would seek such a job upon completion of the hospitality management course.
By the time the Tribunal came to convene a hearing in relation to the Applicants’ review application, the First Applicant had abandoned her studies in the Diploma of Hospitality Management course and had enrolled in another course. That course, referred to above, is a Diploma of Mental Health and forms the basis of the student visa application now on review before the Tribunal. In her 23 May 2019 statement, the First Applicant stated she is studying mental health because she enjoys it and that the course will equip her ‘with both practical knowledge of the mental health profession and theories from research’. She stated that there is limited mental health training available in Vietnam. She further stated that, following completion of the mental health qualification, she intends to return to Vietnam and establish her own mental health clinic.
At the hearing before the Tribunal, the First Applicant gave evidence that was generally consistent with the contents of her 23 May 2019 statement. Her pursuit of a career in hospitality management was not advanced at the hearing. Instead, the First Applicant reiterated that it was her intention to return to Vietnam and open a mental health clinic following completion of the Diploma of Mental Health. She stated that, while she loves living in Australia, it is her intention to leave Australia once she has completed the course. She stated that she does not wish to remain in Australia permanently. Consistent with this claim, in oral evidence at the hearing before the Tribunal both the First and Second Applicant also outlined their intentions in relation to where they plan to live upon their return to Vietnam, and where they plan to send their daughter to school.
The First Applicant’s declarations would seem to convey an intention to remain in Australia as a student temporarily, and also that she intends to comply with the conditions of a student visa were one to be issued to her. There is, however, a significant inconsistency between the basis upon which the Applicants’ student visa application was originally advanced before the delegate, and how it is advanced before the Tribunal now. If the First Applicant had been true to her declared intentions in her original application, one might have expected her to have used her time in Australia, pending review of her application by the Tribunal, to complete the Diploma of Hospitality Management. However, it appears she lost her ambition to pursue a career in hospitality several months after the Applicants’ visas were originally refused in March 2018. Her decision to enrol in a Diploma of Mental Health in August 2018 represents a fundamental shift in career plans.
The Tribunal has contemplated the possibility that the First Applicant’s decision to cease her studies in hospitality management, in favour of mental health, may be explained as a reasonable decision to change career pathways. The Tribunal accepts that the First Applicant is still relatively young and at a stage in life when it can be difficult to know exactly what one wants to do by way of career. However, the change of career plans in this case does not appear to be borne out of a genuine realisation by the First Applicant that a career in mental health is what she truly desires. Rather, it is a decision that appears to have been reactive to the delegate’s decision refusing the student visa applications at first instance on 14 March 2018.
The delegate was critical of the First Applicant’s decision to enrol in a hospitality course because of previous studies she had undertaken. Prior to lodging the student visa application, the First Applicant had undertaken and successfully completed several vocational education and training (‘VET’) sector courses in community healthcare and social work. These include the following:[41]
[41] Following the hearing before the Tribunal on 31 July 2019, the First Applicant provided copies of all these qualifications to the Tribunal on 1 August 2019. There appears to be some minor discrepancies between the names of the courses as they appear on the certificates themselves, the list of courses which the First Applicant provided to Tribunal in the Applicants’ s 359(2) response, and the list of completed courses identified in the delegate’s decision record. These discrepancies are immaterial for the purposes of the present application on review.
(a) Certificate III in Aged Care (issued 6 August 2013);
(b) Certificate III in Home and Community Care (issued 6 August 2013);
(c) Certificate III in Disability (issued 24 December 2013);
(d) Certificate III in Early Childhood Education and Care (issued 10 December 2014);
(e) Certificate IV in Community Services Work (issued 17 December 2015).
The First Applicant also gave evidence that, more recently, in 2017, she undertook a Diploma of Public Health. However, it appears from her oral evidence that she failed to complete this course successfully.
As the delegate noted, the First Applicant has spent five years undertaking studies aimed towards a career in community healthcare or social work. The delegate was unable to see the apparent connection between the career path that those courses represent, and the hospitality management course that the First Applicant was proposing. Understandably, the delegate had great difficulty in perceiving the value to be found in the First Applicant undertaking a VET sector course in a field of study that was so fundamentally different to the general field of study to which she had previously been so committed for five years.
While the First Applicant’s enrolment in a Diploma of Mental Health represents a reversion to studies in community healthcare and social work, the Tribunal remains concerned about her motivations for abandoning the hospitality management course. She has not provided any satisfactory explanation for that decision. As noted above, the decision to commence a Diploma of Mental Health appears to have come about as a result of the delegate’s criticisms. The First Applicant’s decision to revert to studies in community health raises a concern that her motivation for doing so was to increase the Applicants’ prospects of a successful visa outcome in the present application on review. If that is the case, the Tribunal has reservations about the First Applicant being truly genuine in her pursuit of studying a course in mental health.
Rationale for Studying Diploma of Mental Health
The Tribunal accepts that studying mental health in Australia, as opposed to studying a similar course in Vietnam, is likely to be beneficial for the First Applicant because the approach taken in mental health care in Australia is likely to be substantially different. Australia’s regulatory environment in mental health is likely to offer a more progressive perspective and insights for students undertaking courses in this field. The Tribunal therefore sees a tangible benefit for the First Applicant studying mental health in Australia. The Tribunal also notes that comparable courses, offered at the Diploma level, are unlikely to be offered in Vietnam.
The Tribunal also accepts that the subject matter of the Diploma of Mental Health course bears some relation to the previous courses the First Applicant has undertaken. Those courses, referred to above, all fall within the general field of studies in community healthcare or social work. She has also not yet attained a Diploma-level qualification; this would be the first. The First Applicant has also disclosed a work history that includes working as a personal care assistant at a residential aged-care facility, on a part-time basis, in Australia from 2013 to 2016.[42] On one view, the mental health course may be seen as representing a natural evolution of her acquisition of skills in community healthcare.
[42] See the Applicants’ s 359(2) response.
However, while there is a common theme amongst the courses, it is not apparent to the Tribunal that they have been designed to form a cohesive collection of qualifications for a particular career trajectory. A Certificate III in Early Child Education and Care, which the First Applicant completed in 2014, may have qualified her be a childcare worker. A Certificate III in Aged Care, which she completed in 2013, may have qualified her to be an aged-care worker. How these courses specifically relate to the First Applicant’s current enrolment is unclear. She has not sought to explain to the Tribunal the accretion in value that a Diploma in Mental Health adds to these previous courses in terms of job prospects and expected remuneration.
In any event, the Tribunal has had some difficulty in identifying the specific benefit that a Diploma of Mental Health will bring the First Applicant in terms of future job prospects and remuneration. While the she has stated that she wishes to use the Diploma to open a mental health clinic, she has been very shy in providing details about what her planned business venture entails. In the course of giving evidence at the hearing before the Tribunal, she admitted that the Diploma, once obtained, does not qualify her to be a psychologist. When pressed by the Tribunal about what services her proposed mental health clinic will provide to clients, she stated that it will help people with their mental health. Beyond that general statement, very little was said. The provision of general counselling services may be a possibility. However, she has provided no business plan or other documentation that comprehensively explains the proposed business and why she needs a Diploma of Mental Health to run it. There is certainly no cogent evidence before the Tribunal about the level of income that the First Applicant expects to generate from this business.
At best, the evidence about the First Applicant’s proposed business may be characterised as somewhat vague and disclosing that she has given no proper consideration as to what services her planned business will provide. At worst, her articulated plans are so lacking in material foundation that the most logical conclusion for the Tribunal to draw is that the proposed business is merely an ‘idea’, conjured-up by the First Applicant for the express purpose of attempting to sustain an unmeritorious student visa application. Even taking the characterisation that is most favourable, the evidence does not advance the First Applicant’s claim of being a genuine applicant very far at all.
The First Applicant has had five years of studying community healthcare and social work subjects in Australia, and three years of work experience at a residential care facility, to work out what she wants to do in this field. In such circumstances, the Tribunal considers the First Applicant to be in an ideal position to explain adequately what her proposed mental health business in Vietnam will involve and why it is so necessary for her to complete a Diploma of Mental Health to open that business. That she has failed to do so causes the Tribunal to have significant doubts about the genuineness of her declared intentions.
On behalf of the Applicants, Mr Duri drew the Tribunal’s attention to evidence given by the Second Applicant which would appear to corroborate the First Applicant’s claim that she genuinely intends to open a mental health clinic. The Second Applicant gave evidence that it was his intention, once he returns to Vietnam with his wife and daughter, to import health products as part of his own business enterprise.[43] Those products would, it was suggested, be health products that are complimentary to the First Applicant’s mental health clinic business. According to the Second Applicant, his business would be an import/export business with an office that he would open in Vietnam, and then an additional office that would possibly open at a later date in China.
[43] See also the Applicants’ 359(2) response, which refers to the intention of the Second Applicant to open an import/export business
The Tribunal understood Mr Duri’s submission to be that the First and Second Applicants would essentially be working in business together, the First Applicant providing the mental health ‘services’ while the Second Applicant sourced complimentary health ‘products’ associated with those services. Mr Duri also submitted that, on the evidence of both the First and Second Applicants, a Diploma of Mental Health from Australia would be highly regarded in Vietnam. The point he was making, it would seem, is that the qualification itself would provide a significant level of credibility to any business that the First Applicant plans to open.[44]
[44] See the Applicants’ written submissions dated 1 August 2019
While the Tribunal accepts that a Diploma level qualification would be a value to the First Applicant, however she chooses to use it, the Tribunal does not accept that it is of such value as the First Applicant has claimed to be necessary for the opening of her proposed mental health clinic. Her claim in this respect is unsupported by persuasive evidence. On the material available, the Tribunal finds that the First Applicant has been unable to demonstrate that her declared motivations for undertaking the Diploma of Mental Health in Australia are either reasonable or genuine.
First Applicant’s Circumstances in Vietnam and China
The Tribunal accepts that the First Applicant has strong ties to her home country. By reason of her marriage to the Second Applicant, and that the Third Applicant is their daughter, she also has strong ties to China. Since first arriving in Australia in 2007, the First Applicant has returned to visit family in Vietnam once a year up until 2013. Regular return visits to Vietnam appear to have been interrupted by a previous visa application being refused in 2014,[45] and the First Applicant becoming pregnant which led to the birth of Third Applicant in August 2015. The Applicants resumed making return visits to their home countries in 2017. Most recently, all three Applicants visited Vietnam and China in June of this year. Based on the oral evidence given by the First Applicant at the hearing before the Tribunal, it would appear that at least part of the reason for the First Applicant returning to Vietnam on this occasion was that her mother was ill. The Tribunal considers that the familial ties they have to Vietnam and China are significant and serve as an incentive for them to return to their home countries.
[45] See reference to this visa refusal in the Applicants’ s 359(2) response. Mr Duri also made submissions that the visa was originally refused on financial and/or English language proficiency grounds. Ultimately, the visa was granted following a successful review application.
The Tribunal notes, however, that the community ties that the First Applicant may otherwise have to Vietnam and China would not appear to be significant. The Applicants did not specify any other community ties when the Tribunal requested that they provide such information in writing.[46] This comes as no surprise to the Tribunal. The First and Second Applicants have now been residing in Australia for well over a decade. Any community ties they may have once had in their home countries, apart from their family ties, would have significantly diminished with the passage of time.
[46] See the Applicants’ s 359(2) response.
The Applicants have also referred to assets that they have in Vietnam and China.[47] The First Applicant has a contingent beneficial interest in properties legally owned by her mother in Vietnam. The Second Applicant has direct and beneficial interests in properties located in China. These property interests appear to be capable of being managed while they are in Australia. In the event the Applicants come to be in a position to dispose of these interests, the assets can presumably be sold with relative ease. The Tribunal does not consider the existence of any assets of this nature to be operating as an incentive for the First Applicant to return to either Vietnam or China.
First Applicant’s Potential Circumstances in Australia
[47] First Applicant’s 23 May 2019 statement. See also the written submissions dated 24 May 2019, filed on behalf of the Applicants by Mr Duri.
Australia is a highly desirable country in which to live. The United Nations Human Development Index (‘UNHDI’) ranks Australia sixth in the world in terms of social and economic development.[48] It is an objective measure that shows that the standard of living and quality of life in Australia is relatively high, as compared to the rest of the world. Residents enjoy high levels of material wealth, a high life expectancy and significant social benefits. The general conditions in the Applicants’ home countries are not nearly as attractive. The UNHDI ranks China and Vietnam 85th and 118th, respectively.
[48] United Nations Development Program, Human Development Report 2019 – Beyond Income, Beyond A, Beyond Today: Inequalities in Human Development in the 21st Century (UNDP, 2019) 326-31.
Mr Duri submitted that the fact an applicant’s home country is poorer than Australia is not relevant.[49] That submission is not accepted. Direction No 69 contemplates that consideration may be given to an applicant’s economic circumstances in their home country as compared to their economic circumstances in Australia.[50] Assuming all other things being equal, the UNHDI indicates with a certain degree of clarity that the Applicants will be far better off remaining in Australia than they would be if they were to return to Vietnam or China. Objectively, the First Applicant has a strong incentive to remain in Australia for this reason alone.
[49] See the written submissions filed on behalf of the Applicants dated 24 May 2019.
[50] See Direction No 69, cl 9(c).
With this in mind, the Tribunal notes that the First Applicant has enjoyed living in Australia for the last 12 years. As the delegate’s decision record notes, she arrived in Australia on 18 June 2007 when she was only 15 years old. She has been residing in Australia on temporary student visas, or associated bridging visas, ever since. She spent the first three years of her stay in Australia completing her high school education in Tasmania, following which she spent two years studying English language courses. She then commenced the series of VET sector courses that have been referred to in paragraphs 41 and 42 above.[51] While she was studying English in 2011, she met the Second Applicant who, according to his evidence, had also been in Australia since 2007. They were married in September 2011. Together, they had a daughter in August 2015, the Third Applicant. The First Applicant has spent her entire adult life in Australia. Her four-year-old daughter, the Third Applicant, has only ever known Australia as home.
[51] The First Applicant provided a chronology of her education history in Australia in her statutory declaration dated 21 January 2018, lodged with the Department with the original student visa application now on review.
It is evident that the First and Second Applicants are satisfied with living in Australia. Were they not satisfied, they would have left long ago. Mr Duri submitted that the Tribunal should not draw any adverse inference against the Applicants simply because they may like Australia.[52] He emphasised that, apart from the First Applicant’s studies, they have a limited connection to Australia. The Tribunal does not accept that submission. Not only do they like Australia, but they also like living in Australia. That is apparent from the fact that they have chosen to live here for well over a decade. They have also chosen to start a family in Australia. The Tribunal accepts Mr Duri’s submission that, apart from their own family unit, they do not have any close relatives in Australia.[53] Nevertheless, with the passage of time, the First and Second Applicants have become accustomed to the Australian way of life and their ties to the community have only strengthened. The practical reality is that they are now likely to regard Australia as their home.
[52] See the written submissions dated 1 August 2019, filed with the Tribunal on behalf of the Applicants following the hearing of 31 July 2019.
[53] The Second Applicant disclosed an aunt and uncle living in Queensland. However, the Tribunal accepted Mr Duri’s submission that the presence of these extended family members in Australia are unlikely to give rise to a significant incentive for the Applicants to remain in Australia.
As good parents, which the First and Second Applicants appear to be, they will also want to remain in an environment that will allow their daughter to grow, flourish and reach her maximum potential as an individual. Australia presents as such an environment. If they are permitted to remain, Australia will provide the Applicants with life opportunities for their daughter, the Third Applicant, that are not available in their home countries. The first of the most significant of these life opportunities would occur when she turns five and begins her formal schooling.
The Tribunal is of the view that if the Applicants were to leave Australia now, or at any time in the future, it would involve major upheaval in their lives. The First Applicant therefore has a strong incentive to remain in Australia on an ongoing basis that is not directly related to her studies. That incentive casts significant doubt on the credibility of the First Applicant’s declared intentions that she wishes to remain here only temporarily.
The Tribunal further notes that the Applicants would appear to have the financial means to stay in Australia on a longer-term basis. While they do not own any property in Australia, the Applicants disclosed that they have $250,000 in cash deposited in a savings account in a financial institution in China.[54] According to the First Applicant, and as corroborated by the Second Applicant in oral evidence at the hearing on 31 July 2019, that sum of money was obtained as a result of the Second Applicant selling his business that he owned in Hobart. The business was sold in February this year.[55] The Applicants are using this money to fund their living expenses in Australia. On the material before the Tribunal, it is not possible to calculate with precision what the Applicants’ current living expenses are likely to be.[56] However, given that the First and Second Applicant would still have limited work rights in Australia on a student visa, the financial ‘safety net’ that the $250,000 represents could potentially allow them to fund their stay in Australia for many years to come.
[54] See the Applicants’ s 359(2) response.
[55] See the First Applicant’s 23 May 2019 statement.
[56] Although they were requested to do so, the Applicants did not provide the Tribunal with any information relating to their living expenses in their s 359(2) response.
Mr Duri emphasised in written and oral submissions that the First and Second Applicants are resigned to their future being in Asia, not Australia. He stated that they ‘do not have any permanent visa pathway’ that would enable them to remain in Australia on a permanent basis.[57] The Tribunal has taken this submission to mean that any motivation the Applicants might have had to remain in Australia, on a permanent basis, has been sufficiently quelled by the realisation that they are not eligible for permanent residence in Australia, either now or in the foreseeable future. That is to say, if they realise they are not entitled to seek permanent residence in Australia, Mr Duri submits that the Applicants therefore accept that they are only temporary residents and that they are entitled to no more than what temporary residence permits. From that submission, it appears that Mr Duri is inviting the Tribunal to draw the inference that the Applicants’ claims of intending to depart Australia following the expiry of their temporary student visas, were they to be issued, are much more credible.
[57] See the written submissions filed with the Tribunal on behalf of the Applicants on 1 August 2019.
There are several concerns that the Tribunal has with this particular submission. First, the submission draws attention to the fact that Mr Duri has considered the question of permanent visa pathways on his clients’ behalf. Based on his review of Australia’s migration laws, as they apply to the Applicants’ circumstances, Mr Duri has concluded that the Applicants are not eligible for permanent residence in Australia. Presumably he has considered the issue because the Applicants asked him to. This, in turn, suggests that the Applicants are genuinely interested in seeking a permanent residence pathway, if one is available. The submission therefore amounts to a tacit admission made by the Applicants that they have some degree of motivation to remain in Australia on a long-term basis.
Secondly, Mr Duri’s submission overlooks that ongoing residence may be maintained lawfully by a non-citizen in Australia without having a permanent residence visa. The First Applicant’s situation is a case in point. According to the First Applicant’s own oral evidence, the present application on review would represent her sixth temporary student visa, were it to be granted. She has effectively maintained ongoing residence in Australia to date as a result of applying for, and being granted, five successive temporary student visas. As Mr Duri correctly pointed out, the grant of one temporary visa does not, upon its near expiry, generally preclude the visa holder from applying for a further temporary visa. Naturally, the visa holder must still demonstrate that they continue to meet the criteria for the grant of another visa. As the number of subsequent visa applications increases, however, an applicant’s claim of being a genuine temporary entrant may become less credible (a point which is elaborated upon in relation to this case in paragraphs 92 to 96 below). Nevertheless, an applicant is not denied the opportunity of making a further visa application. In each case, the application is determined on its merits by a delegate of the Minister or, as is the case here, by the Tribunal on review. As Direction No 69 makes clear, there are many factors to be considered in that qualitative assessment. This reflects the state of the affairs with respect to the First Applicant now. If she is granted her visa, she may apply for yet another. While the situation is far from being one that creates a certain future for her in Australia, neither is it a situation that obliges her to accept that her future is necessarily in Asia as Mr Duri has suggested.
Thirdly, Mr Duri’s submission that there is no permanent residence pathway for the Applicants is incorrect. There is a potential pathway, albeit an unconventional one. As the First Applicant disclosed in her original visa application form lodged with the Department, the Third Applicant was born in Tasmania in August 2015. That was four years and four months ago. If she is permitted to reside in Australia until her 10th birthday, the Third Applicant will automatically become an Australian citizen.[58] At that moment, the First and Second Applicants immediately become eligible to apply for visas in their capacity as the parents of the Third Applicant.[59] It is a permanent residence pathway for the entire family.
[58] See Australian Citizenship Act 2007 (Cth), s 12(1)(b).
[59] The First and Second Applicants may be eligible to apply for Subclass 143 or 173 (Contributory Parent) visas. See Migration Regulations 1994 (Cth), Sch 2.
The Tribunal acknowledges that the Third Applicant’s 10th birthday is to occur in August 2025, which is more than five years away. The proposition that the First and Second Applicants could utilise this singular event as a means of obtaining permanent residence in Australia might, at first glance, seem beyond the realms of contemplated and realistic possibilities. However, it is not as far-fetched as it might initially seem. If the Applicants were to be granted their student visas now, the First Applicant would complete her Diploma of Mental Health in October 2020. If the Applicants were then to apply for further student visas, their application would most likely be determined at first instance by a delegate of Minister in about December 2020. If the delegate were to refuse the visas, the Applicants could again seek a review of the delegate’s decision before the Tribunal. Having regard to the Tribunal’s current outstanding caseload, and its limited resources, in the ordinary course of events one could expect the application on review to be finalised in about April 2022.[60] If the Tribunal were to affirm the decision to refuse the visas, the Applicants could then seek judicial review of the Tribunal’s decision before the Federal Circuit Court. A contested application might be finalised by the Federal Circuit Court in about November 2023. At this point, the Third Applicant would be eight years old and her 10th birthday would clearly be within sight. If the Federal Circuit Court were to dismiss their application, the Applicants could appeal to the Federal Court.
[60] The median time it takes to finalise an application for review lodged within the migration caseload of the Tribunal is currently 68 weeks. See Administrative Appeals Tribunal, Annual Report 2018-19 (25 September 2019) 34, accessible at < (accessed 16 December 2019).
By the time the Federal Court finally disposed of the matter, the Third Applicant may well be 10 years old. Up until this point in time, the Applicants would have been entitled to reside in Australia on bridging visas until their avenues of appeal were exhausted. The Tribunal notes that the Third Applicant’s acquisition of Australian citizenship, and the First and Second Applicants’ correlating eligibility for parent visas, would not in any way be affected by a sequence of consistently negative outcomes in a protracted review process of the kind described above. All that needs to occur is the effluxion of time and for the Applicants remain in Australia while they continue to exercise their rights of appeal in relation to unfavourable visa outcomes. Accordingly, in the Tribunal’s view that may be a very good reason why the First Applicant would be motivated to extend her and her family’s stay in Australia for as long as she can.
In accordance with Direction No 69, the Tribunal has considered whether there may be any military service commitments or political or civil unrest of concern to the First and Second Applicants in either Vietnam or China. There do not appear to be any such concerns, and so this particular factor operates in their favour in relation to the present application on review. However, for the reasons that have been outlined above, the Tribunal finds that the First Applicant has significant incentives to remain in Australia on a longer-term basis which are not related to study. These incentives tend to undermine, quite significantly, her claim that she intends to reside in Australia temporarily as a student.
First Applicant’s Study History in Australia
In many respects, the First Applicant has conducted herself in a manner that is logically consistent with her claim of being a genuine temporary student visa applicant. In particular, she has enrolled in the Diploma of Mental Health course that forms the basis her present visa application. She also appears to have been making satisfactory progress in that course. At the hearing before the Tribunal, she gave evidence that she had successfully completed all units in the Diploma, that have fallen due to be completed, since the course commenced in October last year. It is a two-year course, and she is well past the half-way mark. She also stated that she is currently undertaking a practical community placement that forms part of the course requirements. Following the hearing, Mr Duri also provided to the Tribunal the First Applicant’s course attendance record in the Diploma course for the 2019 academic calendar year. That attendance record indicates that the First Applicant has had an 87% attendance rate in the first term of 2019 and an 80% attendance rate in the second term of 2019.
This evidence, which is accepted by the Tribunal, not only demonstrates that the First Applicant is a good student. It also shows that she is, by now, obviously aware of how a Diploma of Mental Health will enhance her education and skillset, and what it is likely to mean for her to have the formal qualification when it is completed. That she has persisted with her studies in this course for well over a year objectively demonstrates that she is genuinely interested in the subject matter and in successfully completing the course.
As noted above, the Tribunal also accepts that undertaking a Diploma of Mental Health is consistent with the First Applicant’s previous studies that fall within the general field of community healthcare or social work, and with the First Applicant having worked at a residential aged care facility for three years. On one view, the Diploma represents a progression of those studies and work experiences. This behaviour would therefore appear to be consistent with the kind of behaviour expected of a genuine student.
The Tribunal also accepts that the First Applicant has successfully completed several courses since she has been in Australia. Following completion of her high school education in Australia, she enrolled in and successfully completed Certificates II and III in Written and Spoken English from 2011 to 2012. She then successfully completed the Certificate III and IV courses in the general field of community healthcare and social work. At the request of the Tribunal, following the hearing on 31 July 2019, on 1 August 2019 the First Applicant produced all academic records pertaining to her studies and academic progress since she has been in Australia. Those documents included the Certificates II and III in Written and Spoken English as well as the VET sector certificates referred to in paragraph 41(a)-(e) above. Academic transcripts also demonstrate that the First Applicant was progressing with her studies in these courses consistently throughout 2013, 2014 and 2015. The Tribunal accepts that completion of the courses shows a propensity on the part of the First Applicant to be a good student.
There are, however, many other aspects of the First Applicant’s behaviour in Australia that are logically inconsistent with her claim of being genuine temporary student visa applicant. The first of those identified inconsistencies arises from her decision to enrol in, and then subsequently abandon, a Diploma of Hospitality and Management in favour of the Diploma of Mental Health she is now studying (see consideration of this issue in paragraphs 39 to 44 above). This particular inconsistency casts significant doubt on the genuineness of her current enrolment.
The Tribunal also notes the further concern, raised in paragraph 47 above, relating to the necessity of undertaking the series of courses that the First Applicant has completed to date. Although having a common theme, the courses do not form part of a common career trajectory. If she is to complete her Diploma of Mental Health in October 2020, she will have four Certificate III qualifications, one Certificate IV qualification, and one Diploma qualification falling within the general field of community healthcare and social work. She will have taken eight years of full-time study in Australia to achieve these qualifications. It is highly unusual for a student to spend such a lengthy period of time studying full-time in the VET sector before entering the work force with a full-time job. Such a lengthy period of continuous full-time study might be understandable if a student had transitioned from studying subjects in the VET sector to studies in the Higher Education sector. But that is not what the First Applicant has done here. She has gone from one VET sector course to another but without any pre-defined career path. It is conduct that may be regarded as generally inconsistent with the kind of behaviour expected of a genuine student.
In accordance with Direction No 69, the Tribunal has also considered the extent to which the First Applicant may have undertaken a series of short, inexpensive courses during her time in Australia. Within the framework of Australia’s student visa program, there is a finite number of courses available to international students studying in Australia. The duration and cost of each course falls within a determinable range. In 2018, the Australian government estimated the tuition fees of VET sector courses (Certificate I to IV, Diploma and Advanced Diploma) to range from $4,000 to $22,000 per year of study.[61] Such courses tend to take between three months to two years of full-time study to complete. Higher Education sector courses (Bachelors, Masters and Doctoral degrees) were estimated to cost between $20,000 and $50,000 per year.[62] Higher Education sector courses take between one and four years of full-time study to complete. The overall range of tuition costs for all courses covered by the student visa program is therefore $4,000 to $50,000 per year, with VET sector courses tending to be cheaper than Higher Education sector courses. Course duration ranges from three months to four years, with VET sector courses tending to be shorter than their Higher Education sector counterparts.
[61] See < Ibid.
The cost of the First Applicant’s current enrolment in the Diploma of Mental Health is $8,506.50 per year. Having regard to the range referred to above, that cost may be regarded as relatively inexpensive. That said, it is a two-year course and so cannot be characterised as a relatively short course when compared to other courses falling within the VET sector. However, each of the VET sector courses undertaken by the First Applicant at the Certificate III and IV levels, from 2013 to 2015, appear to have taken no more than 12 months of full-time study to complete. They are relatively short courses. Although no information is before the Tribunal that discloses how much each of those Certificate III and IV courses cost the First Applicant, it is likely that the yearly cost of each course would have fallen within the range of approximately $6,300 to $9,500.[63] Accordingly, the Tribunal finds that from 2013 to 2015 the First Applicant undertook and successfully completed a series of relatively short, inexpensive courses in Australia. The Tribunal also finds that the First Applicant is likely to have incurred a similar tuition fee for the Diploma of Public Health that she commenced, but failed to successfully complete, in 2017.
[63] The courses undertaken by the First Applicant from 2013 to 2015 were all undertaken at TasTafe. The cost of those courses were likely to have been slightly less than those which were set by the Tasmanian government in 2017. The following prescribed fees payable by full-fee paying students who undertook courses in 2017 at TasTafe were set: Certificate III in Community Services - $6,390; Certificate III in Early Childhood Education and Care - $8,530; Certificate IV in Community Services - $9,580. See < (accessed 16 December 2019).
The concern that this evidence highlights is that the First Applicant has managed to maintain ongoing residence in Australia, while maintaining compliance with the conditions of her student visa, on a relatively cheap basis. The pattern of moving from one cheap course to another over a three-year period should, according to Direction No 69, alert the Tribunal to the real possibility that the First Applicant may be attempting use the student visa program for the primary purpose of maintaining ongoing residence in Australia. That concern might have been quickly dispelled if the First Applicant had demonstrated the accretion in value that the completion of each course represented in terms of improving her overall employability. However, she has not done so. Furthermore, the incomplete Diploma of Public Health in 2017 and the abandoned Diploma of Hospitality Management in 2018 also add to the collection of short, inexpensive courses that ultimately have added nothing of value to the First Applicant’s career prospects. Accordingly, the concern remains.
The Tribunal also cannot ignore the significant periods of time during which the First Applicant has failed to progress or successfully complete a course of study. At the hearing before the Tribunal, the First Applicant candidly admitted that she had not managed to complete successfully the Diploma of Public Health, being the course in which she had been enrolled for most of 2017. Furthermore, the First Applicant disclosed in the Applicants’ s 359(2) response that for the entire year of 2016 she had not been enrolled in any course at all. Most of 2018 was also not used very effectively to study, that being the year in which she was briefly enrolled in the Diploma of Hospitality Management course which she eventually abandoned.
The First Applicant’s academic transcripts, produced following the hearing, only serve to highlight the apparent deterioration in study habits of the First Applicant in recent years gone by. She produced no academic records relating to the years of 2016 and 2017 and for period January to September 2018. The absence of such documentation draws attention to the fact that the last course the First Applicant successfully completed was the Certificate IV in Community Services Work. That Certificate IV qualification was issued on 17 December 2015. Following this, 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. It is a significant period of time during which the First Applicant has continued to remain in Australia for the declared purpose of studying as full-time student.
In his written submissions, Mr Duri accepted that the First Applicant had encountered difficulties with some of her courses. However, he also submitted that there have been several disruptions to the First Applicant’s life which the Tribunal needed to take into account before drawing any unfavourable conclusions. There were three specific ‘disruptors’ which were suggested to have had a detrimental effect on the First Applicant’s ability to study effectively. First, there was the student visa application that had been refused in 2014, but subsequently granted following a successful appeal before the then Migration Review Tribunal in 2015 (‘the first claimed disruptive event’). Second, there was the birth of the First and Second Applicants’ first child, the Third Applicant, in August 2015 (‘the second claimed disruptive event’). Third, there was the more recent student visa refusal which is now the subject of the present review application (‘the third claimed disruptive event’). As the Tribunal understood Mr Duri’s submission, these events are suggested to have placed the First Applicant’s life ‘on hold’ at various points in time. In his oral submissions made at the conclusion of the hearing on 31 July 2019, Mr Duri also submitted that these events were ‘out of her control’. As such, any failure by the First Applicant to study effectively following these events should not, it was suggested, be regarded as conduct inconsistent with her claim of being a genuine temporary student visa applicant.
The Tribunal is unable to accept this submission. In relation to the first claimed disruptive event, the Tribunal cannot see how this event materially affected the First Applicant’s ability to study. The academic transcripts produced by the First Applicant suggest that she consistently performed to a satisfactory level throughout 2014 and 2015. There is no evidence before the Tribunal that suggests she put her studies ‘on hold’ as a result of the 2014 visa refusal while she awaited the outcome of her review application before the then Migration Review Tribunal.
The third claimed disruptive event is of exactly the same nature, although it occurred some three to four years later. While the First Applicant’s lack of study progress following that visa refusal is reasonably clear, it is difficult to see the merit in Mr Duri’s submission that the delegate’s decision to refuse the Applicants’ visas was the cause of her diminished capacity to study. That claim is at odds with the fact that she managed to progress with her studies quite well following the visa refusal that occurred in 2014. In any event, the Tribunal does not accept that the delegate’s decision to refuse her a visa in 2018 is capable of being characterised as giving rise to a situation that was ‘out of her control’. Nor does the Tribunal accept that the delegate’s decision put her life ‘on hold’ and that the situation provided an excuse for the First Applicant to not progress with her studies in 2018. The First Applicant chose to apply for her sixth student visa and remain in Australia pending the outcome of that application. She accepted the risk that the student visa may be refused. When it was refused, she applied to the Tribunal for a review of the delegate’s decision. If the uncertainty relating to the review application was too much for her to bear, she was at liberty to return to Vietnam or China with her family. She chose instead to remain in Australia so that she could prosecute her claim for a further student visa. Her bridging visa during this period did not place any restrictions on her ability to study. If the First Applicant was indeed genuine about remaining in Australia to study, one might reasonably have expected her to use all that time to study. However, for some eight months, from January to September in 2018, she did not do so. That behaviour is inconsistent with a claim of being a genuine temporary student visa applicant.
In relation to the second claimed disruptive event, the Tribunal accepts that the birth of the First Applicant’s child, the Third Applicant, would have had a significant impact on the First Applicant’s ability to study. Having a child is a life-changing event for parents, particularly when it is the first child. Certainly, it is an event to be celebrated. However, there are many onerous obligations that come with parenthood. The liberties that a person may have once enjoyed prior to becoming a parent must be surrendered in order to assume the important responsibility of caring for an infant. In that regard, the First Applicant’s capacity to study in the years that followed the birth of the Third Applicant clearly suffered. She has nothing to show by way of academic progress in the years of 2016 and 2017, and for most of 2018. Mr Duri emphasised in oral submissions the significant impact and life adjustments that need to be made when one becomes a parent. The Tribunal accepts the general tenor of that submission. On the oral evidence of the Second Applicant, he was running a profitable business from 2016 to 2018, and so it would appear that the care of the Third Applicant was primarily the responsibility of the First Applicant. The Tribunal finds that the deterioration of the First Applicant’s study habits during this period was caused by her decision to prioritise the care of her child ahead of her studies.
The issue for the Tribunal is whether that decision effectively amounts to conduct inconsistent with the First Applicant’s claim of being a genuine temporary student in Australia. To be clear, the First Applicant was residing in Australia for all of 2016 and 2017, and for the first three months of 2018, on a valid student visa. Condition 8202 of that visa obliged her to maintain enrolment and satisfactory progress in her studies on a continuous basis over that period. On the material before the Tribunal, there appears to be a case to answer in relation to an allegation that the First Applicant was in breach of Condition 8202 for some time, particularly in relation to 2016 when the First Applicant was not studying anything at all. There is no material before the Tribunal that might suggest that the First Applicant was formally exempted from compliance with Condition 8202 at any time during the currency of that student visa. Certainly, no such suggestion was made either by the First Applicant in evidence or by Mr Duri in submissions. On one view, given the clear absence of any evidence of study progress made in 2016 and 2017, it is surprising that the Department took no action against the First Applicant for what appears to be a case of her breaching her then student visa conditions that were operating.
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 History
The 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 Concerns
Beyond 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.
Conclusion
The 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.
SUMMARY
Although 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.
DECISION
The Tribunal affirms the decisions not to grant the Applicants Student (Temporary) (Class TU) (Subclass 500) visas.
Dr Jason Harkess
Member
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