CHOONET (Migration)

[2018] AATA 2392

CHOONET (Migration) [2018] AATA 2392 (24 May 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Sirilak CHOONET
Mr Emrah PEKDEMIR

CASE NUMBER:  1702506

Home Affairs REFERENCE(S):                BCC2016/3573573

MEMBER:Jennifer Cripps Watts

DATE:24 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 25 May 2018 at 9:59am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant genuinely intends to stay in Australia temporarily – Significant time spent in Australia – Lack of academic progress – Significant incentives to remain in Australia – Applicant in a relationship with an Australian citizen - Limited ties to home country – Where visa programme is being used to maintain residency – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

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 31 January 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. 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 applicant for entry and stay as a student.

3. The visa application that is the subject of this review was refused on 31 January 2017.  The applicant applied for review by the Tribunal on 13 February 2017, within time, and provided the Tribunal with a copy of the Department’s decision to refuse her student visa.  The applicant’s matter was constituted to this member and, on 27 February 2018, the Tribunal sent the applicant a written invitation to attend a hearing scheduled on 20 March 2018.  This hearing was cancelled by the Tribunal due to the member who was previously constituted the matter not being available and the applicant was notified on 13 March 2018.  A second hearing invitation was sent to the applicant, on 6 April 2018, the applicant was invited to attend a rescheduled hearing on 24 May 2018.    

4. 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 the hearing, specifically addressing the issue of whether she “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.”  The Tribunal attached 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 to the invitation, for her ease of reference.  The applicant was informed in the cover letter to the hearing invitation that she should refer to the delegate’s written decision and the reasons why she did not meet the criteria for the grant of the student visa.  She was also informed she should provide a copy of her current Confirmation of Enrolment (COE). 

5. The applicant responded to the hearing invitation indicating she would attend the hearing.  Prior to the hearing, the applicant provided the Tribunal with a Federal Circuit Court Divorce Order dated 13 February 2018.  The order was made that the applicants who are the subject of this student visa refusal and review had their marriage terminated on 14 March 2018.  The Tribunal, noting that the applicants have a nominated representative and authorised recipient (the Migration Agent, Mr Deepak Panchal), wrote to Mr Panchal, on 15 May 2018, requesting that he inform the Tribunal how the secondary applicant wishes to proceed with respect to the review of the refusal of his student visa, as the Tribunal was of the view, subject to any comment or receipt of any information to the contrary, that it appeared the secondary applicant was no longer a member of the primary applicant’s family unit.  

6. The secondary applicant, Mr Pekdemir, appeared before the Tribunal on 24 May 2018 and

7. The applicants appeared before the Tribunal on 24 May 2018 to give evidence and present arguments.  They confirmed, individually in the oral evidence, that they are now divorced (consistent with the copy of the divorce order that was provided) and that Mr Pekdemir is no longer a member of the family unit of the primary person.

8. The Tribunal also received oral evidence from a witness, Mr Krisna Hieu, who was identified as the boyfriend of the applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

9. The applicants were assisted in relation to the review by their registered migration agent, Mr Deepak Panchal, Migration Agent Registration Number 0747362, who did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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. The Tribunal needs to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to her circumstances and immigration history: cl.500.212(a).

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

12. 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?

13. 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.

14. 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.

15. The applicant gave some answers at the hearing that were of concern to the Tribunal and have negatively impacted her credibility. In addition, some of her circumstances were considered to be inconsistent with her claim to be a genuine temporary entrant, who would satisfy cl.500.212(a) of the Regulations. The issues about which the applicant is considered to have given vague or untruthful evidence concerns her relationship with her new partner, Mr Hieu (who said he is an Australian citizen), and whether they intend to apply for a partner visa together, and also the applicant’s responses with regard to where and when she has worked whilst residing in Australia.

16. The Tribunal has considered all relevant facts and matters and taken into account the applicant’s response and comments when adverse information was put to her and is not satisfied that she is a genuine applicant for entry and stay as a student.  Notwithstanding that she is, at the time of this decision, engaged in the course she is enrolled in and achieving satisfactory results, the Tribunal has formed a view that she is using the student visa programme to maintain residency.

17. The applicant has done well academically in each of the courses she has studied.  However, on balance, there are other troubling matters that tend to the view that the applicant, notwithstanding this, is not a genuine temporary entrant, and that she herself does not consider her time in Australia to be temporary.  The applicant is studying accounting, but has not gained any relevant work experience in this field or in hospitality, as she now claims to be planning to open a café in Thailand.  She has changed study direction from business, to screen and media to her current field, accounting. 

18. She gave oral evidence that she has not declared her work or income to the Australian Taxation Office, or the Department of Immigration in her student visa application because she gets paid in cash and has only worked a few times for various massage businesses in Sydney and Melbourne.  The applicant has provided no documentary evidence to corroborate the claim that her mother, who lives in Thailand, sends $4,000 to $5,000 Australia every three or so months to support the applicant so she can pay her fees and living expenses.  The applicant has not demonstrated to the Tribunal that she maintains strong personal or economic ties in her home country or that she has made any attempt to investigate studying in her home country.  Since 2012, she has returned to her home country on only three occasions and has not travelled offshore for over two years, at the time of this decision. 

19. The applicant’s personal circumstances in Australia, in summary, include that she has lived onshore for six years, she has a sister who lives in Australia and the applicant is now in a relationship with an Australian citizen and they live together.  This has led the Tribunal to form the view that the applicant has stronger personal and economic ties to Australia than Thailand, at the time of this decision.  The applicant and her new partner, who both said they met in Melbourne in December 2017 and moved in together in Sydney in February 2018, have discussed the possibility of lodging an application for a partner visa, although it is acknowledged that both the applicant and her partner said they have not taken any steps to do so yet.

20. Having considered all the evidence the Tribunal doubts, very strongly, that the applicant is or will in the future be motivated to return to Thailand, in the circumstances.

    Background

21. The applicant is a 35 year old citizen of Thailand.  She first arrived in Australia on 17 June 2012 holding a subclass TU-573 temporary student visa valid to 13 February 2013.  She has held student or associated bridging visas since then.  She has declared that she has no children.

22. She was married to the secondary applicant, Mr Emrah Pekdemir at the time of application and up to 14 March 2018.  A copy of a Family Law Act 1975 Divorce Order has been provided to the Tribunal.  Both applicants gave sworn evidence at the hearing that Mr Pekdemir is no longer a member of the applicant’s family unit because they are legally divorced and the applicant is in a relationship with someone else, Mr Hieu, who attended the hearing with the applicant and himself gave sworn oral evidence.

23. At the time of application for the student visa that was refused and is the subject of this review, the applicant applied to study a package of VET accounting courses:  Certificate IV, Diploma and Advanced Diploma of Accounting, from 2016 to 2019.  She has maintained enrolment and provided evidence confirming her she is progressing with her study, albeit with some change in academic direction.

24. Since 2012 the applicant has completed:

    a.2012    General English

    b.2013    Certificate III in Business

    c.2014    Certificate IV and Diploma of Business

    d.2015    Certificate IV Screen and Media

    e.2015    General English

    f.2017    Certificate IV in Accounting

    g.2018    Diploma of Accounting

25. Since completing the Certificate IV in Accounting in 2017, the applicant has finished a Diploma of Accounting in January 2018 and is, at the time of this decision, enrolled in an Advanced Diploma of Accounting with a prospective finishing date of January 2019.  These accounting courses are the same ones she indicated she intended to study in her 2016 student visa application.  Evidence has been provided from the course provider that the applicant continues to be enrolled and satisfy course requirements.  Although it is noted that the applicant’s attendance rate for the Advanced Diploma of Accounting, from 15 January 2018 up to the time of this decision is 72.92% according to a letter that was provided by the education provider, dated 22 May 2018.  The Tribunal considers this to be borderline in terms of what is an acceptable attendance rate, as it indicates that she may only be attending as few as three out of four of her classes.

26. It is not in dispute that the applicant has successfully completed some of the courses she has undertaken and that she has continued to study since her student visa was refused in January 2017 which, as she is on a bridging visa, she is not required to do to be compliant with her bridging visa conditions.  However, there are other factors that are of concern to the Tribunal, including that she has spent little time back in her home country over the last six years, has not fully disclosed the work or nature of work she has been engaged in whilst in Australia during her time onshore and the applicant has not satisfied the Tribunal she has clear, consistent and well thought out future career goals in her home country. 

27. At the time of application for the visa that is the subject of this review, the applicant stated, “I would like to apply the knowledge and experience gained from in Australia and return back to Thailand and apply my job.”  The Tribunal considers this to be vague and lacking in any detail or substance.  She has now told the Tribunal, at the time of this decision, that she intends to finish her course and return to Thailand in January 2019 to open her own restaurant, with Mr Hieu, a chef, who she says she lives with and who is an Australian citizen.

28. The applicant brought her boyfriend, Mr Hieu, with her to the hearing and indicated she wished him to give evidence.  They both claim to have met in December 2017 in Melbourne, where Mr Hieu was living at the time.  The applicant was visiting and returned to Sydney about a week or two later.  They say they stayed in touch online and by phone and decided to start a relationship and live together and that Mr Hieu relocated from Melbourne to Sydney in February 2018, having transferred from his job at Crown Casino Melbourne to Star City Casino in Sydney, where he works as a chef.

29. First the Tribunal spoke to the applicant – and at the time Mr Hieu was sitting near her in the hearing room - and in the course of that discussion, she was asked whether she intended to apply for any other visas, for example a partner visa with Mr Hieu, and was asked whether she and her boyfriend had talked about it.  The applicant said she was not planning to apply for a partner visa and that she and Mr Hieu had not discussed whether they would or might apply for a partner visa.  Mr Hieu was then asked if it was true, in the presence of the applicant.  He responded that they “…haven’t talked about it really”.  He was asked what he meant and then said they had talked briefly.  The view the Tribunal formed was that they had talked about lodging a partner visa application and the applicant had given an untruthful response and Mr Hieu’s response was internally inconsistent and deliberately vague. 

30. The applicant was told it considered this inconsistency between her response and Mr Hieu’s to be adverse information and was told that there was now a concern that she had been untruthful in her answer which would, subject to her comments or response, affect how the Tribunal would view her credibility.  The applicant was given the standard s.359AA warning in line with the wording of the Act, together with reasons why her answer may be considered not to be truthful and why this would negatively impact her credibility about that and possibly other matters.  She was asked if she wished to respond or comment at the hearing or ask for more time to do so after the hearing.  The applicant elected to respond at the hearing to the question of why she had given what appeared to be an untruthful answer.  The applicant said she has no intention to apply for a partner visa, but that she and Mr Hieu had talked about it.  This is internally inconsistent with her earlier answer and does negatively impact the applicant’s credibility, in the view of the Tribunal.  The applicant only disclosed that she and Mr Hieu have discussed applying for a partner visa when it was revealed in Mr Hieu’s oral evidence.  It indicates to the Tribunal that the applicant knowingly gave an untruthful answer about whether she and Mr Hieu have spoken about lodging a partner visa application.

31. Whilst there is no impediment to the applicant applying for a partner visa, in her circumstances and provided that she does so in line with legal and regulatory requirements, she nevertheless gave an untruthful answer about whether she and Mr Hieu had plans or had even discussed the possibility.  The Tribunal’s view is that she does, because she was untruthful and somewhat evasive about the matter, intend to apply for a partner visa and that should would rather do this onshore than offshore.  If the applicant holds a substantive visa, for example, a student visa, she would be able to lodge the application onshore.  Holding a bridging visa (that is, not a substantive visa) the applicant would be required to lodge her application offshore unless she came with an exception.  The view the Tribunal has is that the applicant is using the student visa programme to maintain residence and as a pathway to a migration outcome and that her primary reason for maintaining enrolment is to achieve this.

32. The applicant gave oral evidence that she is supported financially by her mother who sends her $4,000 to $5,000 Australian every three months through a money exchange agency.  She said her mother has a farm and small family business in Thailand.  The applicant has provided no supporting documentary evidence of the business or the money transfers and the Tribunal does not give credit to this claim of financial support coming from her mother.

33. The Tribunal is not convinced the applicant has not been working in the massage industry to support herself financially and is of the view that she is, or at least has been working in Australia even though she claims that she is not working at the time of this decision.  It was noted in the delegate’s decision that the applicant declared no work or employment history in her application and she has provided no evidence at the time of this decision that gives a clear picture of what work she has been doing since arriving onshore in 2012.

1. The applicant said at the hearing, when asked, that she has worked, but only on a few occasions, and that she was only ever paid in cash, which tends to support the view that she was not declaring the job or the income to the Australian Tax Office, or the Department of Immigration.  The applicant was asked what the name of the place was where she had worked in 2016, for example and the name given in the delegate’s decision, the Red Lantern in 2016 and for Mr Kwok, Sut Chuen in 2014 and 2015.  She gave vague and unconvincing answers about not being able to remember the names of any of the places she has worked. The applicant claimed at the hearing to only have worked there once or twice for various places, but said it was not on a permanent basis and the work was not regular.  The Tribunal does not accept that she couldn’t remember the name of the businesses or that she has only worked once or twice.  She said the places she worked in Sydney were in Clyde and near Newtown Station, but could not be drawn to be more specific than that.  The applicant was asked what the nature of her employment arrangement was and said that it was a “full service” massage business and clarified this to mean sexual services, and that when they wanted her to work, someone would phone or send her a text. 

2. There is no evidence that has been provided by the applicant of where she has worked, or when, or how she is supported financially.  The Tribunal does not accept that the applicant’s mother is supporting her financially.  There was no claim made or evidence provided that her new partner, Mr Hieu, has been supporting the applicant financially at any time from December 2017.  The Tribunal has formed the view that the applicant is likely to be working, or to at least have been working at times from 2012 to 2018, and supporting herself financially in Australia, but is not declaring the work or her income, which she has said she has only ever been paid in cash.   

3. The applicant is, at the time of this decision, studying accounting and the course is due to finish in January 2019.  She has provided no evidence that she has gained any relevant work experience or that she intends to seek relevant work to gain experience in the accounting or a related field.  The applicant was asked at the hearing if she had looked for any relevant work to gain experience and said she had tried but feels it is “too hard” because of different ways of thinking and the English language barrier.  The applicant is claiming to be planning to return to open a restaurant in Thailand in January 2019.  It is not accepted that if she wished to gain some relevant work experience it would, with her qualifications, be too hard.  In any event, no evidence has been provided that the applicant has tried to gain any relevant work experience.  It was submitted that an accounting qualification would be useful to have when opening a restaurant and this is not disputed.  However, the applicant has not provided evidence that she has any work experience in either accounting or working in a restaurant.

4. At the time of application, the applicant provided a typed statement entitled “Genuine Temporary Entrant Criterion (addressing Direction Number 69 matters).  Information in this statement included that the applicant:

   a.Was at that time living with her husband in Rose Bay

   b.At the conclusion of her study, intends to return to Thailand

   c.She and her husband plan to start a Thai restaurant and café in Thailand

   d.Studied Screen and Media in 2015, but changed to Accounting because she thought it would be more useful when she returns to Thailand

   e.Believes she will have skills to start and run a business once she has finished the accounting courses

   f.Has already completed (in 2014) a Certificate IV and Diploma of Business which will also assist her to be successful

   g.That the Victory Institute is the best college for her because it has “nice facilities and student support” and is conveniently located in the city

   h.Is of the view that there are many benefits to study in Australia rather than Thailand, including obtaining a better recognised qualification, English language skills, life experience, learning a new culture and that Australia is a safe country

5. The applicant said accounting would be more useful to her in Thailand, but did not go on to say why it would be more useful.  It appears now, with reference to her changed career goal - that she now intends to open a restaurant - that the accounting might be relevant to that.  However, as already mentioned, she has provided no evidence that indicates she has had or plans to obtain work for the benefit of gaining experience in the accounting field or in a restaurant.  She has been onshore for nearly six years and has not progressed beyond VET level courses.  The applicant studied Business in 2014, then Screen and Media in 2015, then commenced a package of accounting courses in 2017.  Notwithstanding that the applicant has achieved competency in these courses, the Tribunal’s view is that she has changed course direction or discipline twice now and this indicates to the Tribunal that the applicant has not demonstrated she has a clear academic direction in mind or that continuing to study in VET courses will improve her prospects of being able to start a restaurant or café in Thailand. 

6. The applicant had, before the 2016 student visa application, enrolled in Screen and Media with a stated career goal of wanting to obtain a job in Information Technology (IT).  The applicant’s stated career goal was, at the time of application, that she plans to open a restaurant in Thailand but she has never considered or actually studied hospitality related courses.  At the time of application, neither had the secondary applicant.  Although it is accepted he is no longer part of the plan as the couple is divorced and he is no longer a member of the family unit. 

7. The applicant has provided no evidence of having obtained any relevant work experience in the restaurant or café business or, for that matter, in business or accounting at all. Referring to her earlier career goal, there is no evidence that she has ever obtained any relevant work experience in IT, which is another area she had previously suggested she might pursue a career in when she returned to Thailand.   The applicant has studied screen and media and there is no claim or evidence that has been provided that the applicant gained any relevant work experience in this field.

8. If the applicant is genuinely planning to return to Thailand to start a restaurant and café, it is reasonable to think that she may have made some effort to gain relevant work experience whilst residing in Australia.  The Tribunal’s view is that the applicant has a propensity to choose a course claiming it is relevant to her future, not engage in any relevant or related work, then change course and career direction and again not engage in any relevant or related work and that she has been doing this to maintain residence while holding a temporary student visa, and more recently the related bridging visa whilst waiting for the Tribunal hearing and decision in her matter. 

9. If the applicant was granted a student visa, on balance, the Tribunal is not persuaded that come January 2019, when she is due to finish the Advanced Diploma of Accounting, the applicant would not change her mind again about what her future study and career direction are.

10. By January 2019, the applicant will have been residing in Australia for more than seven years holding student or associated bridging visas and, in the view of the Tribunal, still has not provided satisfactory evidence that she has a clear, consistent and well defined career plan based on the benefit of the study she has undertaken in Australia and any relevant work experience.

11. The Tribunal has formed a view, having considered all relevant facts and matters, that the applicant is using the student visa programme to maintain residence in Australia.  She has not convinced the Tribunal that she is a genuine temporary entrant and the Tribunal is not satisfied that the applicant considers her time onshore to be temporary and considers it probable that she will continue enrolling in courses, without any clear and substantiated career goal, for as long as she is granted student visas.  In any event, the Tribunal considers it likely that she is planning to apply for a partner visa with her current partner who is an Australian citizen and that she has not been truthful about this.

12. The applicant has not demonstrated to the Tribunal that she is motivated to return to or spend any significant amount of time in her home country at the time of this decision.  Whilst she does have family members still living in Thailand, her extended residence in Australia, changes in study direction, vague and unconvincing career plans, limited travel offshore, the fact that she has a sister, Bangon Choonet, who has been residing in Australia for a number of years, and the relationship the applicant has now entered into that appears, on the evidence, to have the complexion of a de facto relationship with an Australian citizen, cause the Tribunal to be concerned that she has developed strong personal and economic ties to Australia and will not be motivated to return to her home country.

13. 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).

14. 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.

15. 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.

16. On the evidence before the Tribunal, the secondary applicant is no longer a member of the primary person’s family unit.  He does not meet the primary or secondary criteria for the grant of a subclass 500 student visa. 

    DECISION

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

    Jennifer Cripps Watts
    Member