CHATPIRA (Migration)

[2018] AATA 193

CHATPIRA (Migration) [2018] AATA 193 (7 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pichai CHATPIRA

CASE NUMBER:  1620065

DIBP REFERENCE(S):  BCC2016/2650766

MEMBER:Jennifer Cripps Watts

DATE:7 February 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 07 February 2018 at 8:40am

CATCHWORDS

Student (Temporary) (Class TU) – Subclass 500 (Student) – Non genuine temporary entrant – Close family member in Sydney – Visited home country once in 10 years – Using the student visa program to extend his own time in Australia – Credibly issues – Provided incorrect information to the Tribunal

LEGISLATION
Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 2 cl. 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 on 15 November 2016 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 11 August 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 delegate in this case 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 the delegate was not satisfied the applicant is a genuine temporary entrant.

4. The visa that is the subject of this review was refused and the applicant applied for review by this Tribunal on 28 November 2016, within time.  The applicant’s matter was constituted to this member on 10 January 2018 and a written invitation to attend a hearing was sent to the applicant on 11 January 2017, attaching a copy of an extract from the Migration Act 1958, Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications, for his ease of reference. 

5. The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before his hearing, specifically addressing the issue of whether he “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.”  The applicant was informed he should provide a copy of his current Certificate of Enrolment (COE).  The applicant responded to the invitation indicating he would attend his hearing and provided some documents in support of his application for review, including documents showing past studies, his own statutory declaration sworn on 30 January 2018 and a current COE indicating he is enrolled in a course of study to 16 March 2018. 

6. The applicant appeared before the Tribunal on 6 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

7. The applicant was assisted in relation to the review by his registered migration agent, Keith Henderson, Migration Agent Registration Number 1278513.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 is a genuine applicant for entry and stay as a student: cl.500.212.

   Genuine applicant for entry and stay as a student (cl.500.212)

10. 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?

11. 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.

12. 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.

13. The applicant provided the Tribunal with a statutory declaration, sworn 30 January 2018, in response to the Tribunal’s hearing invitation requesting that he provide a statement addressing the genuine temporary entrant criteria.  The statement has been considered when having regard to Direction 69 matters.  At the beginning of the hearing, the applicant was informed that the Tribunal would have have regard to such things as his circumstances in his home country, and his circumstances in Australia, the value of the course his are studying to his future, his immigration history, travel he has undertaken and any other relevant information that may be beneficial to his case but may also be unfavourable to him.  The applicant was told that if at any time he did not understand or hear a question, he should say so and the member would be happy to repeat, rephrase or explain the question to him.  One or two occasions arose where he asked for clarification and it was given.

14. The applicant was also told that if there were matters that the member did not raise but which he wished to talk about at the hearing, he should inform the Tribunal and the additional matters could be discussed.  At the end of the hearing, the applicant was asked if he wanted to say anything else and said he did not.

15. The Tribunal has considered all facts and matters and is not satisfied that the applicant is motivated to return to Thailand.  Some answers he gave at the hearing and information he provided have caused the Tribunal to have credibility concerns about his true motivation for applying for another student visa. 

16. The applicant is currently enrolled in and studying an Advanced Diploma of Information Technology.  He lives with a close family member in Sydney, his biological son, age 19, who is here, he said, on a student visa.  The applicant told the Tribunal that his father has formally and legally adopted the boy in Thailand and that he refers to him as his younger brother.  The applicant has had his own business in Sydney since 2010 and he has only departed Australia on one occasion, in 2012, since he first arrived onshore 10 years ago.  The Tribunal is not satisfied that the applicant is a genuine temporary entrant and formed the view that he is using the student visa programme for the primary reason of maintaining residence in Australia, notwithstanding that he seems to have performed at a satisfactory level in the studies he has undertaken. 

17. In the applicant’s written application, he declared no parents or siblings living outside Australia.  He answered “no” to the question.  This was raised with him at the hearing, as in his statutory declaration he clearly says that he has a father, stepmother, stepsister and two brothers who, at the time of his application, he said (in his oral evidence at the hearing) were all residing in Thailand.  He was asked why he provided this incorrect information and said it was because he was confused by the question and “answered it wrong”.  He was asked what he thought the question meant and said that he thought it meant does he have relatives living in Australia.  The question in the application, “Does the applicant have any parents or siblings in or outside Australia” is clear and the Tribunal does not accept the applicant’s excuse or explanation that he was confused by it.  He said at the hearing that he refers to his biological son as his younger brother and that the boy was adopted by the applicant’s father which, on his own evidence, in the mind of the applicant, means that he considers him to be a sibling.  He declared no siblings in his application.

18. The applicant was asked at the hearing if he has any children and said he has a biological son and that he thinks the boy knows that applicant is his biological father.  He was asked where his biological son lives and said Thailand and then said a few responses later that his biological son lives in Sydney.  The applicant said his biological son came to Australia from Thailand about six months ago.  The Tribunal, for the purpose of identifying him this decision, will refer to him as the “younger brother” of the applicant, but noting that he is actually, on the applicant’s evidence, his biological son.  The Tribunal considers the applicant knowingly gave incorrect information about the younger brother to the Tribunal and then corrected himself and the impression the Tribunal was left with is that the applicant was unwilling to disclose information about his younger brother.

19. The applicant said at the hearing, and also indicated in his statutory declaration, that he would like to obtain a Bachelor degree because that was his wish when he started his studies.  He is hoping for a positive outcome from the Tribunal so he can enroll in a Bachelor degree and remain in Australia.  The Tribunal is not persuaded that continuing his education in Australia beyond the current advanced diploma he is studying that will finish in about a month (on 11 March 2018) will greatly enhance or add value to his career prospects or employment opportunities in Thailand, as he claims.  The Tribunal considers that the applicant’s work and professional experience, that is, having run his own computer business in Sydney for seven years, and the qualifications he already has, to be sufficient to ensure that he has good prospects of achieving his stated career goal in Thailand, which is to work for a friend and help him as director and editor in his print firm and also to develop his own business.  The applicant said that his computer business that he had before he departed Thailand up to 2008 when he came to Australia live is still open and being run by his father.

20. The applicant will finish his Advanced Diploma in Information Technology by 11 March 2018, and possibly sooner if he does his assessments by the last day of class, which is Tuesday 6 March 2018.  His qualifications at the time of this decision are:

    a.Certificate IV in Information Technology, March 2016

    b.Diploma of Website Development, March 2017

    c.Diploma of Screen and Media, 2014

    d.Certificate IV Screen and Media, 2013

    e.General English, 2009

21. The Tribunal has considered his academic achievements together with the applicant’s work experience and is of the view that he can meet his stated career goals without the need to continue to do further study in Australia.  In addition, the applicant made no claim and provided no information that would indicate he cannot study in Thailand if he wishes to and it is reasonable to think he would be well placed to be a successful applicant for further study in Thailand with the qualifications he has gained in Australia.

22. It is of concern to the Tribunal that the applicant has not travelled to his home country since 2012, which the Tribunal considers demonstrates a lack of actual ties to his home country or intention to return there after he finishes study.  He has only been back to Thailand once in 10 years, from 2008 to 2018.  He says members of his family have visited him, in 2014, 2015 and 2016, which demonstrates that he has ties to his family.  However, it does not indicate, in the Tribunal’s mind, that he considers his time in Australia to be temporary.  It is reasonable to think, given that his family visit him regularly in Australia and he now has one of those family members living with him in Australia, that the applicant does not consider himself to be a genuine temporary entrant, but that he considers Australia to be his permanent, which leads the Tribunal to conclude that he is using the student visa programme to maintain residence.

23. There were some internal inconsistences in the applicant’s evidence.  He says in his statutory declaration that he “misses his brothers”, but then said at the hearing that his son (who he refers to as his younger brother) has been in Australia living with him for about six months, from 2016 to 2017.  The Tribunal considers this to be internally inconsistent sworn evidence.  The applicant made no reference to his younger brother staying on to live with him when he visited with other family members in 2016.  The view the Tribunal was left with is that applicant did not want to disclose that a close family member is living with him in Sydney or the nature of the relationship.  He said he would prefer not to discuss it at the hearing.  He was asked why and said it was because of two support people he had brought with him.  The Tribunal pointed out that he had asked the people to come with him and attend the hearing, but nevertheless offered to ask the support people to leave the room if that’s what the applicant wanted.  He said he did not need them to leave.   

24. The Tribunal discussed the younger brother/son that the applicant he has that he disclosed at the hearing, somewhat reluctantly.  He gave his younger brother’s name as Aof Pichang, said he is 19 years of age, and that he currently holds a student visa that ceases in around April or May 2018.  He said they live in the same household in the city, Sydney.

25. The applicant told the Tribunal he divorced his wife (his only wife who he was the secondary applicant to in 2009) in 2015.  He was asked if his younger brother/son is also her biological son and said he isn’t.  He said that another woman who lives in Thailand is the biological mother. 

26. Notwithstanding the concerns the Tribunal has of the non-disclosure of family members in his written application, the real and significant concern the Tribunal has is that now the applicant has his younger brother/son living with him in Sydney, the Tribunal is not satisfied that the applicant is motivated to return to Thailand.  Although he claims that his younger brother/son is here temporarily holding a student visa until April or May 2018, the Tribunal has no documentary evidence of this and does not consider that the applicant considers his time in Australia to be as a genuine temporary resident. 

27. The applicant has been running his own business in Australia, on his oral evidence and statements he has made in his application and statutory declaration, since 2010.  He continues to run the business at the time of this decision and said sometimes his biological son helps him out when he asks him to, which is not to suggest his son or the applicant are doing anything non-compliant with their visa conditions.  The applicant was asked what his younger brother/son will do with about accommodation if the applicant’s student visa is refused and he said he will have to find somewhere else to live, which suggests to the Tribunal that he may not be departing Australia in April or May 2018.  If he holds a valid visa, he is not required to.  However, the Tribunal’s concern is that the applicant himself is using the student visa programme to extend his own time and continue living with this close family member in Sydney.

    Evidence

28. Relying on the information in the applicant’s 30 January 2018 statutory declaration and the documents he provided, the applicant’s personal background is, in summary, this:

    Student visas and academic progress

    a.He arrived onshore for the first time in September 2008 holding a subclass TU-570 student visa and studied English

    b.In September 2009, the applicant was granted a visa as the dependent partner of his wife

    c.In September 2010, the applicant was granted a student visa from 2010 to 2012 and studied for a Diploma of IT at Kent Institute

    d.In September 2012, the applicant was granted a subclass 573 visa to study a package of courses – Certificate IV in Screen and Media, Diploma of Screen and Media and Bachelor of Interactive Media at Victory Institute – however, in 2014 the education provider discontinued the Bachelor of Interactive Media, so he was awarded the VET Certificate IV (March 2016) and Diploma (March 2017) in Screen and Media, but not the Bachelor degree because he did not complete the study

    e.The applicant changed providers to the Wells International College and enrolled in another package of courses - Certificate IV in Screen and Media, Diploma and Advanced Diploma in IT (Business Analysis) and provided a COE confirming that he will complete the course on 16 March 2018

29. The Tribunal accepts that the Bachelor degree at the Victory Institute was discontinued in 2014 by the education provider, but is not satisfied that the applicant made sufficient inquiries or real attempts to find a replacement bachelor course in 2014 or at any time afterwards, up to the time of this decision.  He said at the hearing that he wants to return to Thailand with a Bachelor degree because that was his wish when he came to Australia.  However, if he was to do this, it would extend his time living in Australia to at least 11 or 12 years, which the Tribunal considers too long in the applicant’s circumstances to indicate he is a genuine temporary entrant for study.

30. The makes the following claims in his statutory declaration dated 30 January 2018, addressing the Direction 69 criteria:

    Circumstances in Australia

    a.He has resided in Australia, lawfully, since 2008 and has returned to Thailand once, in 2012 for one month

    b.He has not returned to Thailand because his family has visited him in Australia

    c.He planned to travel to Thailand in 2017 but thought he couldn’t because of his bridging visa status with a “no travel” condition

    d.Plans to visit his family in 2018 but will not make any travel arrangements until after the AAT decision

    e.He is financially self-supporting because he runs his own business in Australia with an income of around $300 to $400 per week and maintains a basic standard of living

    f.He has gained on-the-job experience in some multi-media production, pushing and photography on Facebook

    g.The applicant is currently enrolled in an Advanced Diploma of Information Technology Business Analysis at the Wells International College (from 3 April 2017 to 16 March 2018)

    Circumstances and future prospects in his home country, Thailand

    h.Before coming to Australia in 2008, the applicant had a computer repair shop in Pathum Thani for three years and he wanted to develop his business so came to Australia to improve his English – his father has kept the computer repair shop going in Thailand

    i.When he returns to Thailand he plans to work in web design and online publishing, developing into multi-media production, extending his business so that it can support him and his father

    j.His Australian qualifications will enable him to get into media production in Thailand

    k.In 2017 he was offered a job by a friend who has started a media production business in Thailand

    l.He yearns to return to Thailand because he has a better quality of life there

1. The Tribunal has considered the applicant’s claims and gives positive weight to some of them, for example, that he has never been onshore unlawfully.  However, on balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for study.  He has his son living with him in Australia now and the applicant’s career goals could, in the view of the Tribunal, be met by his completing his current Advanced Diploma and using the qualifications and work experience he has at the time of this decision to return to Thailand and recommence running his own business and doing work for the friend he mentioned who also runs his own business and has offered work to the applicant in his chosen field of digital publishing and media.

2. There is no claim or evidence before the Tribunal that the applicant would suffer any harm or hardship should his student visa not be granted and he is required to depart.  He said he owns a Toyota van and said it would be easy to sell and that he did not have any other significant assets, debts or liabilities in Australia.

3. The Tribunal wrongly stated during the course of the hearing that the applicant had not previously disclosed his wish to do more study, that is a Bachelor degree, after he finished the Advanced Diploma in March 2018.  This was pointed out by the representative.  The Tribunal stood corrected and stated this at the hearing for the benefit of the applicant and the record. 

4. 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).

5. 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.

6. 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

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

   Jennifer Cripps Watts
   Member