1509525 (Migration)

[2016] AATA 4650

1509525 (Migration) [2016] AATA 4650 (7 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PARWIN INSAMANG

CASE NUMBER:  1509525

DIBP REFERENCE(S):  BCC2015/1195246

MEMBER:Geraldine Hoeben

DATE:07/11/16

PLACE OF DECISION:  Sydney  

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

Statement made on 07 November 2016 at 3:15pm

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, who arrived in Australia on 23/12/07, applied to the Department of Immigration for the visa on 23 April 2015. The delegate decided to refuse to grant the visa on 25 June 2015.

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because the applicant was not a genuine temporary student entrant.

4. The applicant appeared before the Tribunal on 6/06/16 give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

8. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(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)     …

9. 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.

10. 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.

11. The Tribunal put the applicant’s PRISMS record to him in so far as it related to longer courses being completed in the initial years of his residence in Australia some nine years ago and shorter, inexpensive courses in later years and he replied yes.

12. The Tribunal then raised with the applicant the peculiar mix of subjects which commenced in the early years as being tourism hospitality and business, some at advanced diploma level and now he has gone back to only completing certificate courses in accountancy which don’t seem to have any relevance to his earlier courses or career direction and he replied that he wished to have shorter course now so that he could leave Australia and set up his business in Thailand.

13. The Tribunal asked why he was concentrating on accountancy courses since approximately 2015, some of which were cancelled and how that could possibly relate to his future career path of opening a tourism business in Thailand and he replied he knew nothing about finance and it would support his business.

14. The Tribunal then asked what accountancy had to do with running a business or finance especially as he had already completed an earlier business course which would have contained as much as he would need to know about finance, business and accountancy and he replied he wished to learn the basics of accountancy to return to Thailand to start his business. He continued he only had his mother there and he wished to return home so as to be near to her. He added I do wish to say in Australia, I wish to return to Thailand.

15. The Tribunal raised its concerns that there appeared to be a lack of continuity, a lack of logic in his choice of courses and that his academic progress from lower to the higher courses had ceased some years ago and he replied that he wished to return to Thailand and have Thai people work for him.

16. The Tribunal asked how it was that his more recent courses were much shorter and less expensive that his earlier courses and he replied he replied that they were shorter so that he could learn the basics and return to Thailand. He continued people only did Masters degrees because the courses were longer and they probably wanted to stay in Australia.

17. The Tribunal pointed out to the applicant that in the nine years he had resided in Australia there was a three years study-gap period where there were extensive periods of no study at all and he replied that he had attended many courses, had completed some and did everything he was require to do.

18. The Tribunal raised with the applicant that given he had resided in Australia nine years, he  spoke very poor English which would seem to infer that he would not be able to understand many of the courses he undertook which are in English and consequently would not be able to get much out of them and he replied that he said that he had to spend money to undertake those courses.

19. The Tribunal noted that there were a number of approved courses in his PRISMS record of a short duration and were inexpensive and that they were so much into the future that they would have no impact on his educational progress or the Tribunal’s deliberations one way or another and he replied he did not want to stay in Australia and he wished to return to Thailand.

20. The Tribunal indicated that the hearing was drawing to a close and did he wish to add anything further in his review application and he replied that he had enrolled in courses he thought would help him when he returned to Thailand, his mother and start his business.

21. The MA’s post-hearing submissions raised matters which the Tribunal has not taken into account against the applicant’s favour except insofar as they relate to specific issues such as a demonstrable lack of the practical understanding of the English language and how this would adversely impact on the applicant’s educational progress given that all registered courses are in English.

22. However, the MA did raise the issue of the three years total study-gap period which while not coming to grips with the matter in any substantial sense made the point that international students were required, according to the PAM Direction 53, to have no more than two months gap between each course. Given that some of the applicant’s courses overlapped what remained would represent very small number of months and certainly not a complete answer to three years’ study-gap.

23. The Tribunal finds that the applicant has, over recent years, chosen courses of short duration and of and inexpensive nature compared to his earlier courses undertaken and completed and where were at a higher level. As a result the Tribunal finds that the applicant is not making the academic progress one would expect for someone who has resided in Australia for some nine years.

24. The Tribunal finds that the applicant’s repeated assertion in just about all his answers that he wishes to leave Australia and return to Thailand to start his business to be inconsistent with his extensive study-gap period of some three years, his track poor record of academic progress and clear direction for a specific career-path plan.

25. The Tribunal finds that the applicant’s answer as to the three year gap-period to be both non-responsive to the question and unconvincing that he had completed courses and did everything he was required to do.

26. Given the above the Tribunal finds that the applicant is utilising the international students’ program for reasons other than as a genuine temporary student entrant.

27. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

    Concluding paragraphs

28. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. 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. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. 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

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

    Geraldine Hoeben

    
    
    

    Member