1709450 (Migration)

[2018] AATA 3932

1709450 (Migration) [2018] AATA 3932 (8 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709450

MEMBER:Gabrielle Cullen

DATE:8 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 August 2018 at 11:01am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – lack of study and attendance – ceased study due to brother’s drug addiction – ability to work – details of future career aim – knowledge of course – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.211, 500.212

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 and Border Protection on 10 April 2017 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 for the visa on 16 November 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The applicant arrived in Australia on 25 July 2014 on a subclass 573 visa valid to 5 April 2016. He was granted a further subclass 572 visa valid to 30 November 2016. He applied for the visa to which this application relates on 16 November 2016.

4. Certificate of Enrolments attached to the applicant’s current application refer to the applicant studying a Certificate IV, Diploma and Advanced Diploma of Accounting from [November] 2016 to [November] 2019. Evidence from the applicant at hearing indicates he did not attend the Certificate IV in Accounting and ceased being enrolled and studying the accounting courses in 2017. To the Tribunal he submitted a CoE to study an Advanced Diploma of Leadership and Management from [August] 2018 to [February] 2020.

5. The evidence at the time of this decision, from the applicant and the Department decision indicates that since his arrival in Australia he has successfully completed one course, being the Diploma of Leadership and Management from [March] 2015 to [February] 2016 and an English course in 2014. He provided evidence by way of a certificate as to completing part of the Advanced Diploma of Leadership and Management which he was enrolled in from April 2016 to October 2016 before he changed to the accounting courses. The evidence from the Department decision and applicant at hearing is that he did not commence the Diploma of Business he was enrolled to study from [March] 2015 to February 2016. He gave evidence that he did not undertake any further courses after he ceased studying the Certificate IV in Accounting[1].

   [1] The Tribunal notes the PRISMS records have the applicant finishing a Certificate IV of Business and English course from [August] 2017 to [April] 2018. The applicant when questioned and said he had not attended or studied any courses after not attending the Certificate Iv in Accounting and the Tribunal places weight on the applicant’s evidence as the PRISMS records are not always accurate.

6. The applicant provided evidence to the Department he completed secondary schooling in Thailand. In his statement of purpose he advised that he wished to study the Certificate IV, Diploma and Advanced Diploma of Accounting for his future career path. In a statement of purpose he referred to the accounting courses he will study and that his aim is to be recruited by accounting firms and his highest career goal being to open his own small to medium local accounting firm in the future.

7. The delegate decided to refuse to grant the visa on 10 April 2017. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned that he arrived in Australia to study a subclass 573 course, being the Diploma of [Bossiness] (Higher Education Sector course) but did not commence the course. He found the applicant breached condition 8516 as he did not maintain enrolment in the Higher Education Sector. He was also concerned at the length of his stay in Australia, being over 5 years if the visa was granted.

8. On 2 May 2017 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.

9. On 6 July 2018 the Tribunal wrote to the applicant and invited him to attend a hearing on1 August 2018. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

10. He provided the following documents to the Tribunal:

    ·A CV outlining his continued work experience as at first [Occupation 1], then [Occupation 2] and then [Occupation 3] from February 2015 to the present in a number of [workplaces].

    ·In his CV he refers to his education as having completed secondary school, a general English course in 2014 and the Diploma of Leadership and Management.

    ·A will from the applicant’s mother outlining the [property] he will inherit.

    ·Letter from the Thai [authorities] inviting the applicant’s brother to join the prevention of repat narcotic use program.

11. In his GTE statement the applicant apologised for his lack of attendance and advised it was due to personal and family issues that he needed to deal with. He claimed his brother was using drugs and ended up in jail. He indicated that he blames himself for being useless and unable to help his brother and this event caused much stress and anxiety. He noted that while he does not have any assets currently, he will inherit his mother’s property. He submitted that he has no family in Australia and his entire family are in Thailand. He claimed that he came to study and learn and be independent so when he returns he will have skill as a business man. He claimed he wants to be a leader not a follower. He submitted that he wants to set up a business in Thailand and he has $10,000 to do this. He claimed he is also eligible for a loan in Thailand. He submitted it is more affordable for him to set up his business in Thailand where he knows more people and understands the laws than in Australia. He referred to the lower tax in Thailand compared with Australia. He noted he would like to study the Advanced Diploma of Leadership and Management which follows on from his completed Diploma of Leadership and Management. He claimed that the knowledge he acquires form this course will assist him to create his business and achieve his goals.

12. The representative made written submissions as follows.

    ·All the applicant’s close and extended family are in Thailand, including his brother and parents. She notes he has no family in Australia

    ·While he does not have assets in his name as yet, his mother’s will from 2013 indicates her assets will be left to him.

    ·He has not overstayed his visa.

    ·He apologises for breaching condition 8516 however he was not advised or informed of his requirements to maintain compliance with the visa conditions. She notes he engaged an agent believing he would know but he was never advised of this and his option to defer. She submits he stopped going to school as a result of stress and anxiety caused by his brother’s drug addiction and as a result he started to drink.

    ·She submits the applicant has stopped drinking and wants a chance to study and progress his study for future career opportunities.

13. The applicant appeared before the Tribunal on 1 August to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicant was assisted in relation to the review by his registered migration agent.

14. The Tribunal raised with him that the matter before it is whether he meets the requirements of cl.500.212. It outlined the section, the relevance of Direction 69 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.

15. It also raised with him that a second issue before it is whether he meet cl.500.211, being the requirement to be enrolled in a course of study as he had only submitted an offer of enrolment and no evidence he is currently enrolled in a course of study. The representative advised this would be forwarded to the Tribunal by COB on 2 August 2018. The applicant has since provided the Tribunal a COE to study an Advanced Diploma of Leadership and Management.

16. As to his family, he repeated he had no family in Australia and his parents and brother were in Thailand. As to property, he repeated that he had none but referred to his mother’s Will.

17. He outlined in detail his work in Australia. He gave evidence consistent with his CV as to his following work record in Australia. He indicated he worked only part time , 20 hours per week

    ·From May 2017 to date he worked as [an occupation] at [a workplace].

    ·From December 2016 to April 2017 he worked at [another workplace].

    ·From November 2015 to November 2016 he worked as an [Occupation 2] at [a third workplace].

    ·From February 2015 to October 2015 he had worked as [Occupation 1] at [a fourth workplace]

18. He confirmed that he has consistently worked 20 hours a week since February 2015. When asked if he had ever had any time off, he said he had the odd Monday or other day off but confirmed he had worked every week.

19. The Tribunal asked him about his study in Australia and he confirmed the only courses he had successfully completed were an English course and the Diploma of Leadership and Management. The Tribunal raised concern as to only completing these courses, approximately one year in length in his four years in Australia.

20. The Tribunal asked why he came to Australia to study and he said he wanted to return to open a company and manage. He said he had had this aim from the beginning.

21. The Tribunal raised the concern why his evidence indicates he arrived in Australia on a subclass 573 visa to study a Diploma of Business but did not commence this course. He said in January 2015 he had problems in Thailand and referred to his brother being a drug addict and being picked up by police, appearing in court and being jailed. The Tribunal asked him when this happened and he said in December 2014. The Tribunal asked him again why this affected his commencing the Diploma of Business which he was enrolled in to come to Australia to study. He said the agent changed the school and he trusted the agent.

22. The Tribunal noted that after the Diploma of Leadership and Management he has provided evidence that he began the Advanced Diploma of Leadership and Management (transcript submitted) but then transferred to the Certificate Iv in Accounting. It noted he submitted enrolment to the Department to study a Certificate IV, Diploma and Advanced Diploma on Accounting. The Tribunal asked why he changed courses to study accounting and why he wanted to study these courses. He said the agent told him to change and said it was better. The Tribunal raised with him that his evidence appears vague as to why he enrolled in these courses.

23. The Tribunal asked him what happened with the Certificate Iv in Accounting. He said he did not attend and his enrolment was cancelled. As to why he did not turn up to the course to study, he referred to his [brother] being a drug addict and being caught by police. The Tribunal noted that the CoEs he submitted to the Department referred to enrolment from November 2016 in the Certificate Iv in Accounting but he had previously at the hearing said this happened din December 2015. He said he was mistaken. He said he was very stressed by these family problems and this was why he did not attend. The Tribunal questioned the truth of his claim as to being unable to attend for these reasons as his evidence was he was able to continuously work up to twenty hours a week during this period. He said he did not work fully. The Tribunal questioned this as not consistent with his previous evidence as he had said he worked every week, approximately twenty hours per week. The Tribunal again asked him why he could work but could not attend and he said because when he was at work he could talk to his colleagues. He said he never spoke to the education provider about these difficulties.

24. The Tribunal asked him whether he had studied after this period when he did not go to the Certificate Iv in Accounting and his enrolment was cancelled. It asked him about whether he had been enrolled in and studied a Certificate Iv in Business and further English course and he said he had not.

25. The Tribunal asked why he had not studied or successfully completed any course since 2017. He said it was because of his big brother and the difficulties he had his family faced as a result. The Tribunal asked if there were any other reasons and he did not respond.

26. The Tribunal asked him about the current course he is proposing to undertake from August 2018. It asked him whether he had researched the course and he said he had. It asked him about the course, names of the units, how many units he needs to complete the course, and how many of these are core and elective units. He said leadership and management and the Tribunal questioned this as this is not consistent with the information and it seemed he was just repeating the name of the course. He then said he had not researched it and the Tribunal raised its concern as to his knowledge and lack of research of this Advanced Diploma of Leadership and Management which he proposed to do from August 2018. It questioned whether he is genuine in his intention and wish to study.

27. The Tribunal asked him why he wanted to study this course and he referred to opening a company in Thailand. The Tribunal raised its concern as to his lack of detail in this regard and inconsistency with evidence provided to the Department in his GTE statement and outlined this.

28. He indicated he had no military commitments in Thailand and no civil or political reason why he could not return.

29. The applicant’s representative submitted that the applicant is a genuine student. She noted he came to Australia fresh out of school, he is young and he was misadvised by his education agent. She said he was not give correct advice and never told that he had to study while the holder of a student visa. She said he was never told he could contact the education provider. She noted he had paid the onshore agent $8,000 for his advice and the agent told him to do the accounting courses. She said because of his poor English the whole time he has relied on the agent. She referred to his family being in Thailand and that he will inherit property as per the will. She noted that the reason he could not study was because of the brother’s situation but could work through this period as he had support from his work colleagues.

30. The Tribunal asked him why he now decided to study an Advanced Diploma of Leadership and Management and why he did not want to be an accountant. He said he was ok with doing this. The Tribunal asked him for more detailed evidence and he said he had nothing else to say.

31. The Tribunal sked him when his brother faced the situation and he said it was December 2016. The Tribunal asked him if he was so concerned for his family why he did not travel home in this period.

32. Following the hearing, the applicant provided a CoE to study am Advanced Diploma of Leadership and Management from [August] 2018 to [February] 2019. The representative also requested that the Tribunal consider that this course relates to an area the applicant had previously studied. The representative also referred to the Tribunal comments that the GTE statement he lodged to the Department is different to the one lodged with the Tribunal. She submitted that the one thing they have in common is that he knows he wants to open a business. She submitted the previous agent took advantage of the applicant with respect to his choice of study and that consideration should be given to this. Also received after the hearing was a document outlining the subjects to be undertaken for the Advanced Diploma of Leadership and Management.

    CONSIDERATION OF CLAIMS AND EVIDENCE

33. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets cl.500.212.

34. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

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

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

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

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

35. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

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

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

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

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

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

37. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

38. As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Thailand. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. The Tribunal accepts that courses in Australia are highly respected and internationally recognised. The Tribunal accepts that the applicant has close family ties in Thailand and no family in Australia. It accepts he will inherit property from his mother as per her submitted Will. It accepts that these circumstances in Thailand are indicative of a person who is only a temporary entrant and wishes to return to their country.

1. The Tribunal accepts that the applicant is currently enrolled in the Advanced Diploma of Leadership and Management to commence in August 2018. It accepts from the submitted certificates from his education providers that while in Australia he has successfully completed a Diploma of Leadership and Management from April 2015 to April 2016 and then studied part of the Advanced Diploma of Leadership and Management to October/November 2016. It also accepts he successfully completed an English course in 2014. However the successful completion of courses is one of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.

2. Of concern however, is that since November 2016 the applicant has not successfully completed any course or units towards a course and since that time to date has not attended any course of study. He submitted his application to study a Certificate IV, Diploma and Advanced Diploma of Accounting. However his evidence is that he never attended the Certificate Iv in Accounting which began in November 2016 and his enrolment was cancelled. He said since that time he has not attended any course or studied. The Tribunal views his lack of study and attendance throughout 2017 to date to be of concern. It is of the view a genuine student in Australia to study for the reasons he claims would attend his courses and study. He claims he did not attend due to his brother’s drug addiction, capture by police and imprisonment in December 2016. He claims in his statement this led him to drink and caused him stress and anxiety. His representative referred to the harsh drug laws in Thailand which she claims would have caused worry and stress. While the Tribunal accepts that his brother faced the difficulties and this would have had some impact on the applicant, it does not accept he is credible as to these circumstances leading him to not attend the Certificate IV in Accounting and study from end of 2016 to date. The evidence from the applicant is that he continued to work up to twenty hours a week throughout this time as [Occupation 2]. When asked if he had any time off from work the applicant referred to the odd day off but said he worked every week. The Tribunal does not accept that a person who can work could not attend his study. He referred to support from his colleagues at work when this was raised with him. The Tribunal does not accept this as why he would not attend at all his study and not advise his education provider or seek help as to the difficulties he claims he was facing affecting his study if he was a genuine student. The representative advised that he was misadvised by his agent, told what to study and not explained he had to study or could seek assistance from the education provider. However, the Tribunal is of the view a genuine student in Australia to study for his future career aim, would have enrolled in an area he wished to, not just followed the advice of his agent and continued to attend if he could work and seek the assistance of the education provider if he was having difficulty. It understands that he is young and his English is poor but is of the view that notwithstanding if he was a genuine student he would have sought assistance from the education provider not just stopped attending and studying.

3. The Tribunal, for the reasons below, is also not satisfied on the evidence before it that he has provided credible evidence as to why he wishes to continue to study in Australia and enrol in the Advanced Diploma of Leadership and Management. It is of the view he has enrolled in this course to maintain residence.

4. In this regard, his evidence as to his future career aim is inconsistent and lacking in detail. At the hearing when asked why he wanted to study in Australia and why he now wishes to study the Advanced Diploma of Leadership and Management, he said as he wanted to open a business in Thailand. In his statement to the Tribunal he also stated this and referred to the benefits of opening a business in Thailand over one in Australia including support from his family, friends and the government. He said he wanted to study the Advanced Diploma of Leadership and Management so as to help him mange this business. He also said at hearing he came to Australia to study so he could attain the skills to open a business on return to Thailand. However, in contrast, in a statement to the Department he stated that he wished to study in Australia so he could return to be an accountant and in the future open an accounting business. No such reference to opening an accounting business or working in the area was provided at the hearing or his statement to the Tribunal. While the applicant did refer in both statements to opening a business the Tribunal views the evidence as to the accounting business as inconsistent as he was specific in his evidence to the Department that he wanted to work in accounting and open an accounting business. Also, as raised at the hearing, the applicant’s evidence as to his future career aim was lacking in detail. As his evidence at hearing was that he came to Australia in 2014 to acquire the skills to open a business it may expect he would be able to provide more detail than he could as to his future career aim at the hearing after being in Australia for 4 years.  On the basis of the inconsistent evidence and evidence lacking in detail as to his future career aim the Tribunal does not accept the applicant’s evidence as credible as to why he is studying in Australia and undertaking the current course. The Tribunal is therefore of the view that the applicant has enrolled in the Advanced Diploma of Leadership and Management and applied for a student visa to maintain residence.

5. Further, despite initially claiming he had researched the Advanced Diploma of Leadership and Management he is to commence in August 2018, the applicant’s evidence was completely lacking in any detail as to this course. He was unable to outline any of the subjects he will study or how many units, including core and elective he needs to complete. He then indicated he had not researched the course. The Tribunal is of the view that a person who is genuine in their study would have knowledge of the course and have researched it. His representative said that this information is given by the provider after the student starts the course, however as raised with the applicant the information is provided in detail on the website of the education provider. While he provided a list of subjects to be studied after the hearing, the Tribunal is of the view a genuine student would have researched the area and know more information when asked at hearing, than the limited information the applicant was able to provide. It does not view the list submitted after the hearing as overcoming its concern in this regard. This adds to the finding the applicant has applied for the student visa to maintain residence rather than as a genuine student.

6. As to the applicant’s immigration history, there is no evidence before the Tribunal he has previously travelled to Australia, or applied for a permanent visa or other visa to Australia or other countries, other than applying to Australia for student visas. It notes that, as outlined in the Department decision, he arrived in Australia on a subclass 573 visa and has breached condition 8516 by not studying at this level. The representative submitted this was because the applicant’s agent misadvised him and did not explain to him what he had to do to meet the conditions of his visa.  As the applicant moved to study the Diploma of Leadership and Management[2], instead of commencing the Diploma of Business and they are similarly named, both being Diploma courses it does not place much weight on the applicant not attending the Diploma of Business and studying a different Diploma course.

   [2] Was Diploma of Management and became Diploma of Leadership and Management

7. In making the decision the Tribunal has considered all the evidence before it, including completion of the Diploma of Leadership and Management and an English course, current enrolment, that he has strong family ties in Thailand, he is young, his brother is a drug addict and was arrested and imprisoned by police, he relied on the advice of the past agent; however for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.

8. The Tribunal is therefore not satisfied that he is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence.

9. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

10. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

11. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

12. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Gabrielle Cullen
    Member