BOONRAWD (Migration)

[2019] AATA 2063

BOONRAWD (Migration) [2019] AATA 2063 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kanyapach BOONRAWD
Mr Thamnoon BOONRAWD

CASE NUMBER:  1712572

HOME AFFAIRS REFERENCE(S):           BCC2017/653228

MEMBER:Mila Foster

DATE:26 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 February 2019 at 3:14pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – immigration history – length of time in Australia on various visas – value of course – possessed relevant skills already – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection on 25 May 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 February 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The first named 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. The second named applicant applied for the visa as a family member. 

3. The delegate in this case refused to grant the visas on the basis that the first named applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the first named applicant intends to stay temporarily in Australia.

4. The applicants appeared before me on 1 November 2018 to give evidence and present arguments. They did so with the assistance of an interpreter in the Thai and English languages.

5. The applicants were assisted in relation to the review by their registered migration agent. The migration agent attended the hearing but made no oral submissions.

   RELEVANT LAW

6. 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 first named applicant satisfies cl.500.212 which states:

   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.

7. In considering whether an 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.

8. 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 an applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant (GTE) criterion.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicants presented their claims and evidence in their student visa application, in documents submitted on review, and at the hearing.

10. The first named applicant is a 51 year old Thai national and the second named applicant, also a Thai national, is her husband.[1] The first named applicant applied for the student visa to undertake two courses: a Diploma in Leadership and Management course and an Advanced Diploma in Leadership and Management course. At the time of my decision the first named applicant has completed the diploma course.[2] In written statements[3] the first named applicant gave her reasons for choosing to undertake the courses, her reasons of choosing the education provider, her reasons for studying in Australia rather than her home country, the relevance of the courses to her academic and employment background, the relevance of her course to her future plans. The first named applicant presented two almost identical letters dated 14 December 2016 and 18 October 2018 from the managing director of the Dokbua And Friend Co Ltd in Thailand offering her the position of senior manager contingent on completion of the Advanced Diploma in Leadership and Management course in 2019. At the hearing the first named applicant testified that the managing director was a former work colleague and friend.  

    [1] Department file BCC2017/653228, ff. 22, 23, 26.

    [2] Tribunal file 1712572, f.37.

    [3] Department file BCC2017/653228, f.30; Tribunal file 1712572, ff.32-32.

11. Having considered the claims and evidence before me, I have concluded that the decisions under review should be affirmed. My reasons are as follows.

12. The first named applicant testified that neither she nor the second named have children. She stated in the student visa application that she did not have parents or siblings in or outside Australia[4] but that as she is getting older she needs to settle her life in Thailand to support her family.[5] On review she did not mention returning to Thailand to support her family. The first named applicant first arrived in Australia in November 2007 on a student visa and has subsequently remained here on either a student visa, temporary work visa or associated bridging visa.[6] She has thus been away from whatever family she has in Thailand for a long period of time and in contrast has spent a considerable period of time, over 10 years, with her spouse in Australia. I have thus given very little weight to the first named applicant’s family ties in Thailand.

    [4] Department file BCC2017/653228, f.14.

    [5] Department file BCC2017/653228, f.30.

    [6] Tribunal file 1712572, f.2.

13. According to the first named applicant’s written statements, work references from her former employers in Thailand, and her testimony she has worked in Thailand and Australia as a chef including several years as a head chef for an employer who sponsored her temporary work visa. That visa permitted her to live and work in Australia for four years from 2013 until 2017.[7] The first named applicant chose to work in Australia on that visa rather than return to Thailand even though she had by then completed several courses of study in Australia in English, hospitality and tourism, and had already been in Australia for about 5 years.[8] Further, rather than return to Thailand with all the skills and experience she had acquired from those studies and her employment in Australia, she chose instead to make the current student visa application just two days before her temporary work visa was to expire. When I questioned why the first named applicant did not return to Thailand on completion of her studies in 2013 and at the expiration of her work visa, she replied that her employer wanted to sponsor her and it was a good opportunity, and she applied to do the leadership and management courses so as to return to the job her friend had offered her and to bring development back to her home country. I however have concluded that the first named applicant’s decision to remain in Australia rather than return to Thailand at those times indicates that she has a strong desire to live and work in Australia and hence given that significant weight. I have given little weight to the job the first named applicant has been offered in Thailand by her friend and the reasons she has given for wishing to undertake the leadership and management courses.

    [7] Tribunal file 1712572, f.2.

    [8] Tribunal file 1712572, f.2.

14. The letters from the Dokbua And Friend company state that the job offer is contingent on the first named applicant completing the Advanced Diploma in Leadership and Management course.  Yet the first named applicant’s testimony about the value of the course to the position was unforthcoming, vague and unclear. She stated that the course would provide her with leadership skills and the opportunity to have contact with people from various other countries and cultures. When I suggested that it seemed she would have already had contact with people from other countries through her previous studies in Australia she did not address that issue and instead stated that she needed further study because of the never-ending changes in technology. It was unclear and the first named applicant did not subsequently explain upon further questioning what specific technology she was referring to or its relevance to leadership, management or contact with culturally diverse people. I also noted that it seemed the first named applicant had already completed subjects in leading and managing staff and working in culturally and socially diverse environments in the previous courses she had undertaken.[9] I put to her that it thus seemed she would be doing many of the same subjects again and questioned whether she had discussed that with her friend. Rather than address the issue put to her, the first named applicant responded again by referring to technology and stated that advances and improvements in technology meant she had to continue to study.

    [9] Tribunal file 1712572, ff. 31 34, 39, 41.

15. Further, given the first named applicant’s many years of work experience as a chef and head chef, the courses she has completed in Australia which included subjects in leading and managing people, I believe she had ample knowledge and skills to return to Thailand with and which would have provided her with ample job prospects without undertaking a further 2 ½ years of study in leadership and management in Australia. I have concluded that the first named applicant has applied for the student visa for the purpose of maintaining ongoing residence in Australia and not because she has a genuine intention to undertake the leadership and management courses for the purpose of developing leadership and management skills, to take up the job offer from her friend in Thailand or to bring development to Thailand.

16. On the basis of the above, I am not satisfied that the first named applicant intends genuinely to stay in Australia temporarily. She therefore does not meet cl.500.212(a). Accordingly, I am not satisfied that the first named applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

17. Given the above findings, I find that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicants do not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

18. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Mila Foster
    Member