1506054 (Migration)

[2016] AATA 3850

1506054 (Migration) [2016] AATA 3850 (3 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Chalitra Buanuch

CASE NUMBER:  1506054

DIBP REFERENCE(S):  BCC2015/224604

MEMBER:Adrian Ho

DATE:3 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 03 May 2016 at 1:59pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 20 January 2015. The delegate decided to refuse to grant the visa on 17 April 2015. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.570.223(1)(a) of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 5 April 2016 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 570.

   Subclass 580

9. At hearing, the applicant was informed that the Subclass 580 visa is for student guardians; where it is a requirement that the person will accompany a relative to or in Australia who is a student, and in order to make a valid application for a Subclass 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1) and on the evidence it was not and therefore it appeared the application was not a valid application for a Subclass 580 visa.

10. The applicant confirmed that Form 157G was not used and a Subclass 580 visa was not sought, and was informed that the application appeared not to be a valid application for that subclass in any event, and the tribunal so finds.

11. For the remainder of this decision, a reference to subclasses or all subclasses of the Class TU visa does not include a reference to Subclass 580.

    Genuine Temporary Entrant

12. A major issue in the present case is whether the applicant meets the time of decision criterion in cl.570.223. Clause 570.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)     …

13. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

14. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

15. At hearing, the applicant was:

    a.Given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;

    b.Informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;

    c.Informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.Given an overview of the considerations laid out in Direction No.53 as summarised above;

    e.Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the tribunal hearing;

    f.Informed that all subclasses of the Class TU visa have equivalent ‘genuineness’ criteria, and that if the criterion was not met, it would likely not be met for each of those subclasses.

16. The tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53, and, given the applicant’s significant stay in Australia, the applicant’s immigration history, circumstances in Australia and in the home country, and study history, with a focus on the value of the courses studied and proposed to the applicant’s future.

    Findings

17. The applicant gave evidence that she arrived in Australia from Thailand in 2011 on a 573 student visa to study English before commencing a bachelor of business.

18. She says she studied English for 1.5 years, much longer than her study plan had contemplated and despite this extended and unplanned period of study in English, she still did not have sufficient English facility to undertake the bachelor’s course, which she never started.

19. In 2013 she married a Swiss man who was working for Rio Tinto as a mechanic on a 457 visa and she obtained a dependent 457visa.  She said she and her husband used English to speak to each other and she worked a restaurant and did home duties while there relationship lasted.

20. She agreed her 457 visa did not prevent her from studying but said she did not study for the bulk of the time she held the 457 visa and explained that she felt it was her duty to be with him rather than to be studying and in Thai culture it was her role to look after him.

21. She said their relationship ended at the end of 2014 and she then made the current student visa application in January 2015.

22. She agreed her stated career objective at the time of making the application was to be a tour guide in Thailand, and for that, she claimed she needed to study more English.

23. The Department considered that she had already studied English in Australia and had lived in Australia since 2011 and decided she would have sufficient English to embark on that vocation and therefore the two VET sector English courses she proposed were not of much value to her stated goal.

24. The second of the two courses she had proposed is to finish, this month, in May 2016.

25. Rather than propose to return to Thailand, the applicant now forecasts that she will propose further stay and study in Australia in the sporting field.  She has consistently claims to have been a taekwondo teacher, but has, during tribunal processing, changed her stated vocation from tour guide to being an international taekwondo referee and/or a member of Thailand’s taekwondo administration.  She said she no longer wants to be a tour guide.  She explained that her father has been appointed to a position within the administration of the sport, which has opened up opportunities for her.

26. For this, she says, she needs to study in a sporting area in Australia before returning home and she had a diploma course in mind at the Australian institute of personal trainers, but did not know its CRICOS code.

27. She did not agree with the proposition that because the tribunal’s processing had taken some time, the original courses she had proposed for the visa were to finish shortly and that one possible view was that she had altered her vocational objective so as to be able to propose more study – not proposed when the visa application was made – so as to obtain a student visa with longer validity.

28. She asserted that being an international taekwondo referee required English certification and the passing of tests and working with the taekwondo administration also required a high level of English vis a vis such events as the Olympics and the South East Asian Games.

29. She resisted the proposition that she had already studied English in Australia for more than a year, had lived and worked in Australia for around 5 years, and had used English with her Swiss spouse, and that it appeared she would have sufficient English to embark upon these vocational objectives without undertaking the VET sector English study she continues to propose.

30. She resisted the proposition that her interest in study appears to have enlivened at a time when she no longer had access to visas held by her ex-husband, but rather had to obtain a visa as a primary applicant if her lawful stay were to continue. 

31. The tribunal finds that if the applicant was to stay lawfully in Australia, there was a distinct need for her to obtain a visa as a primary applicant when she no longer had access to her ex-husband’s 457 visa around the end of 2014.  The applicant had not studied for some years to that point.  Her interest in study then enlivened when she proposed VET sector English study and made the visa application now under review.   As suggested to her, the tribunal has doubts that she could not have studied English while on her 457 visa.  She repeatedly pointed out at hearing that her husband was a fly in / fly out mechanic for Rio Tinto and was away from home for regular periods.  On the evidence, she had the opportunity to study English, especially as part of short courses, or even informal courses, up to the end of 2014, if she had wished that.  On the evidence, she did not have that wish.  Rather, her interest in studying English coincided with the time when she could no longer rely on her ex-husband for visas.  Such are her circumstances in Australia.

32. The tribunal considers that the two VET sector English courses proposed by the applicant are of limited value to her future.  She had already studied VET sector English from 2011 to 2013, she had lived and worked in Australia for around 5 years, and she lived with her Swiss husband where they used English at home.  On the evidence, she had sufficient facility with English to have sufficient confidence to seek a vocation as a tour guide in Thailand, if that is what she wished. 

33. That wish has changed during tribunal processing and the tribunal has concerns that the proposed new vocation in the sport of taekwondo comes at a time when the two VET sector English courses originally proposed are to be completed in a matter of weeks after the tribunal hearing and in order to sustain the proposition that she should be granted the visa, she intends to propose further study related to a newly formed vocational objective.

34. In written material the applicant submitted to the tribunal via the tribunal’s online system on 5 May 2015 she writes that she moved into a house with her now ex-husband in April 2014 and “I did not continue with my English studies as I expected to have my life with Stan and my English was of a working standard”.  That position of the applicant – that her English was of working standard – is consistent with the tribunal’s other observations put to the applicant and laid out above, and the tribunal finds, consistent with her written statement, that the applicant has working English proficiency.  As suggested to her, that level of English is considered sufficient for the applicant to embark in a vocation of tour guide or as a taekwondo instructor or sport administrator in Thailand, even if both of those occupations would require interaction in English with persons who were not from Thailand.

35. As suggested, the English courses now proposed are of very little marginal incremental value to the applicant and the tribunal finds that they were proposed for the visa at a time when, and for the purposes of, transitioning on to a student visa when the applicant lost access to her ex-partner’s substantive visa.

36. That is, the study was proposed to prolong the applicant’s stay in Australia, rather than because it held distinct value to her future.

37. No specific sports-related course has been identified by the applicant, although she claims to wish further stay based on proposing sports-related study.  As suggested, the tribunal has additional concerns based on the fact that sports-related study was not proposed at the outset of the visa application and appears to have come with a change in career plan during visa and tribunal processing.

38. Such were the matters relied upon by the applicant in this review.  In a long hearing the tribunal probed the question of whether the applicant intends to stay in Australia temporarily, being led by the considerations laid out in Direction 53, in significantly more detail than is contained in any of the written material on the Department file or the tribunal file.  The applicant was reminded that a copy of Direction 53 was provided with the invitation to the hearing and was encouraged to be familiar with the document.  At the conclusion of the hearing, the applicant was invited to draw the tribunal’s attention to considerations in Direction 53 not discussed, or to any other relevant matter, and indicated in reply that there was no wish to raise any further considerations for the tribunal’s attention.

39. The tribunal is not assisted in reaching a positive decision by written material provided by or on behalf of the applicant:

    a.Her father’s written claim (DIBP f.61) that she wishes to return to work as a tourist guide is out-dated by her recent oral evidence that she no longer wishes to do that, which is preferred;

    b.His claims, in March 2015, echo her then claim to wish to return to be a tour guide, but do not assist the tribunal is being satisfied of the applicant’s later wishes to extend her stay and study in a sports-related field;

    c.In her written statement at f.11 she states that she would like to obtain at least a certificate in Australia before returning to Thailand; on the evidence, she had proposed a certificate II in English the course for which ended in August 2015, and she has had the opportunity to obtain such a certificate; however, instead of indicating that she would cease her residence in Australia at the end of the courses proposed for the visa, she indicates in evidence that she will propose further stay and study, although she has not identified a particular course.

40. The tribunal acknowledges the applicant has family and friends in Thailand.  No particular emphasis was placed on this consideration by the applicant at hearing, other than the claim that she would work with her father in the field of taekwondo.  For reasons above, the tribunal finds that had the applicant intended to work with her father in the field of taekwondo, or to be a tour guide, in Thailand, she had sufficient English facility and sufficient experience as a taekwondo teacher in Thailand to do so before she applied for this visa and she would not have applied for the visa, but rather returned when her relationship ended.  That was a time before her more recent claim that her father had obtained a new position in the taekwondo field in Thailand which formed the basis for her more recent claim implying that she was no longer satisfied with only the English study that she had proposed with the visa application, and the tribunal does not now accept that she intends to study in a sports-related field and then cease her residence in Australia.

41. The applicant’s circumstances in relation to other considerations laid out in Direction 53 are unremarkable.  Overall, the tribunal places the most weight on the timing of the applicant’s proposal to the study and the very marginal value of the English courses that are, to date, the only specified courses proposed for the visa, the only courses for which she holds valid enrolment, and that will conclude in around 17 days from the date of this decision, and while the applicant still holds a bridging visa in connexion with this review.

    Section 359A information

42. The tribunal also put to the applicant the gist of information received from her ex-partner and his new partner using the procedure laid out in s.359AA.

43. The gist of the information put to her included:

    1.That she – the applicant –  had written in a letter that had her relationship continued she would not have to re-establish a basis for staying in the country and paying extra expenses (from f.148);

    2.That she was with her ex-partner for the purposes of permanent residence and for him to support her financially (from f.58);

    3.She was working more than 20 hours a week while on student visas  (from f.58);

    4.She stopped studying as soon as she was granted a dependent visa (from f.58).

44. The relevance of the information to the issues was explained to the applicant and the applicant was informed that additional time could be sought for any comment or response.

45. The applicant was afforded a break in the hearing to consider any comment or response and in her oral response she indicated that she disagreed with the content of the information, that the relationship ended because of an affair on his part, his new partner wants her out of Australia, if she had wanted permanent residence she would have married an Australian, and not a Swiss national, the other parties wanted to make her look as bad as possible, she worked no more than 40 hours a fortnight, and her writing in the letter referred to was only an expression of emotion and nothing more.

46. The tribunal put the information to the applicant using the procedure in s.359AA because the tribunal considered the information to be adverse to the applicant’s claims on its face.

47. Ultimately, the tribunal considers that the relationship break-up has been acrimonious, as is evidenced by the documents indicating the matter is being fought in court, and that both sides have vested interests which may lead to accusations being made of the other party which are difficult to test and may be overstated.

48. Were the tribunal to give weight to the information supplied to the tribunal by parties other than the applicant, that evidence would tend to support a conclusion that she does not intend to stay in Australia temporarily.  There is nothing supportive of the applicant’s claims in the information.

1. Ultimately, the tribunal does not have confidence that the accusations against the applicant are made objectively and dispassionately, due to the ongoing acrimonious dispute between the parties.  The tribunal therefore places no weight on any of the information or any of the accusations implied or otherwise in any document not given to the tribunal by the applicant herself.

2. No weight is given to those accusations, and there is therefore no need for the applicant to respond to them.  The tribunal does not accept the accusations and the applicant’s responses and comments do not add appreciably to the question before the tribunal.

3. Giving no weight to information received from third parties, the tribunal has confined itself to evidence given by the applicant herself and the considerations in Direction 53 that pertain thereto. 

4. The tribunal indicated to the applicant at hearing that quite aside from the information received from third parties, the tribunal had doubts that the applicant intends genuinely to stay in Australia temporarily.

5. On the basis of reasons earlier stated, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, and having given no weight to evidence not given by the applicant to the Tribunal, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.

6. Accordingly, the applicant does not meet cl.570.223(1)(a).

7. The Tribunal has found the applicant does not meet an essential requirement of cl.570.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses.

8. For the sake of clarity, even if the tribunal had never received any information from parties other than the applicant herself, and was unaware of that information, the tribunal would have decided the applicant did not meet cl.570.223(1)(a) and its equivalents for other subclasses.

9. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

   DECISION

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

    Adrian Ho
    Member