CHAIYAKHAN (Migration)

[2019] AATA 6258

CHAIYAKHAN (Migration) [2019] AATA 6258 (29 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Siriporn CHAIYAKHAN

CASE NUMBER:  1733224

HOME AFFAIRS REFERENCE(S):          BCC2017/3578798

MEMBER:Mara Moustafine

DATE:29 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 30 November 2019 at 6:03pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – genuine temporary entrant criterion not met – periods of non-enrolment –study is not relevant to the applicant’s previous employment–credibility concerns – decision under review affirmed

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

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 13 December 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 first arrived in Australia on 14 March 2017 as the holder of a TU subclass 500 ELICOS Sector Student visa to undertake an English language program from 20 March to 1 September 2017. The applicant applied for a Subclass 500 Student visa on 29 September 2017 to undertake an Intensive English (2 January to 15 June 2018), Certificate IV in Leadership and Management (28/05/2018 to 05/05/2019), Diploma of Leadership and Management (27/05/2019 to 3/05/2020) and Advanced Diploma of Leadership and Management (25/05/2020 to 2/05/2021).

3. 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.

4. According to the Department decision record, a copy of which was provided to the Tribunal for the purposes of the review, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she was not satisfied that the applicant intended genuinely to stay temporarily in Australia. Among other things, the delegate was concerned that the applicant had not provided evidence of economic ties to her home country; had changed her intentions from her initial undertaking to travel back to Thailand after finishing her general English course to seeking to study in Australia for 3.5 years just two days before her visa expired; and had breached condition 8202 of her Student visa, which stipulates that the holder of the visa must maintain enrolment in a registered course, when she changed the start date of her Intensive English program from 20 November 2017 to 2 January 2018. Noting that the applicant had attained a Bachelor of Science (Biology) in Thailand and had subsequently been employed at LBS Laboratory for 2 years, the delegate also questioned the value of the proposed studies in Leadership and Management to the applicant’s future. While acknowledging that the applicant had personal ties to her parents and siblings in Thailand, she did not consider that they provided significant incentive for the applicant to return home upon the completion of her proposed study in Australia.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. Ahead of her hearing the applicant provided to the Tribunal the following relevant documents: a GTE statement; a current Confirmation of Enrolment (COE) and Statement of Enrolment for Diploma of Leadership and Management (14/10/2019 to 20/09/2020); a COE for an Advanced Diploma of Leadership and Management (25/05/2020 to 02/05/2021); a completion certificate and record of results for a Certificate IV in Leadership and Management (22 September 2019); Certificate of Attainment for and student Report for English Language program (20 March to 31 August 2017); a statement from Kaplan College confirming that she was enrolled in the Intensive English program as a full time student (2 January to 15 June 2018); IELTS report dated 21 September 2017; and evidence of Overseas Student Health Cover Policy Purchase from 20/11/2017 to 02/05/2021).

7. In her GTE statement the applicant explained that having completed her first English language course, she realised that her English competency was not sufficient; and, after considering whether to return home or stay in Australia, had decided to undertake the proposed courses, while waiting for her IELTS results. Her reasons for undertaking study in Intensive English and Leadership and Management was to enable her to get a higher level positions and more income in Thailand. She said she delayed her Intensive English course on the advice of the college as they hoped her visa might be granted by then. The applicant stated that her incentive to return to Thailand was her obligation to take care of aged parents, which was important in Thai culture.

8. The applicant appeared before the Tribunal on 28 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 the time of decision criterion in cl.500.212.

11. 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?

12. 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, which is attached to this decision, 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.

13. 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.

14. At the hearing, the Tribunal discussed with the applicant the reasons her Student visa had been refused in the context of the GTE criterion, noting that the primary purpose of a Student visa was for an applicant to study and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored the applicant’s circumstances in Thailand and Australia, her immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.

15. The applicant told the Tribunal that she had now completed her English courses and a Certificate IV in Leadership and Management and was now studying a Diploma in Leadership and Management. While she originally came to Australia to study English, she now wished to complete her Diploma and Advanced Diploma in Leadership and Management so she could run her own business in Thailand.

16. As discussed with the applicant at hearing, the Tribunal is concerned that she demonstrated little knowledge of the courses she was studying or had completed. When asked what units she was currently studying in her Diploma course, the applicant responded vaguely saying ‘Management” and “how to be a better leader”. Likewise, she was unable to tell the Tribunal what units she had last studied in her Certificate IV course, which according to the certificate she submitted, she had completed very recently in September 2019, or any units that were part of that course, beyond saying “leadership”, “skill” and “management”. In the Tribunal’s view, this raises serious doubts as to whether the applicant is a genuine student. The Tribunal does not find persuasive the comment of her migration agent that most college, as opposed to university, students don’t know the names of the subjects which they study in their courses.

17. While the Tribunal accepts that qualification in Leadership and Management might enhance the applicant’s ability to run a business in Thailand, it found her evidence as to the kind of business she claims she will establish extremely vague and lacking detail. The applicant claimed at hearing that, as she had completed a biology degree and her home province was Chiang Rai near the border with China, she wanted to export seedlings to China and later added Japan. Asked if she had a business plan and had undertaken market research as to the opportunities and demand for such a business, the applicant said several times that that she was “just starting”, had done “Google search” and sought advice from relatives in Japan. She estimated that the business would require an investment of Thai Baht 1 million to produce the corn and rice seedlings and claimed that she would finance it through the savings of her parents, who were corn and rice farmers, but provided no evidence of their financial support for such a venture.

18. Asked why she had made no mention of wishing to study Leadership and Management when she first applied for her Student visa but indicated instead that she would return to Thailand after completing General English, the applicant did not answer directly. Instead she gave a confused response that she wanted to study English first, then realised she should open her own business in which she would need English language skills in order to make contact with the Chinese. When the Tribunal expressed doubt that the operating language for business with China would be English, the applicant shifted her evidence variously to say that the majority of reports, including in her last job, were submitted in English and that she also intended to export to Japan and other places. As discussed with the applicant, the Tribunal found these shifts in her evidence opportunistic.

19. As discussed with the applicant, it is not clear to the Tribunal how her proposed courses and vague intention to open a seedling export business in Thailand on completion of her studies relates to her previous qualification in biology and her evidence that her previous work in Thailand was in a laboratory making antibiotics. The Tribunal notes, but finds unpersuasive, the applicant’s response that her previous work involved “looking for diseases” and that she could use her prior knowledge in biology when looking at seedlings in the future.

20. Further, as discussed with the applicant, given the change from her initial intention to study a six month course in General English to undertake a further three and a half years of study, the Tribunal is not confident that the applicant might not seek to undertake further courses which she might claim as useful in running a business in Thailand. The applicant responded that, on completion of her courses, she would have to go home “no matter what” because of her obligations in Thai culture as her parents were getting old and her older sister had moved provinces.

21. The Tribunal accepts that the applicant has family ties to Thailand, where her parents, older sister and grandfather live, while she has no family in Australia. However, the Tribunal is not satisfied that these ties in themselves provide strong incentive for her to return to Thailand.

22. 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 is a genuine student who intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

23. 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.

24. 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

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

    Mara Moustafine
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.