Chuenjai (Migration)

Chuenjai (Migration) [2021] AATA 5441 (17 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Miss Phetcharat Chuenjai
Mr Songkran Chuenjai
CASE NUMBER:  2002132
HOME AFFAIRS REFERENCE(S):          BCC2019/5794444
MEMBER:Warren Stooke AM
DATE:17 December 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 17 December 2021 at 11:31am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa––applicant was not a genuine applicant for entry and stay as a student – has stronger ties to Australia through residency, work and lifestyle – no strong incentive to return to her home country – 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 January 2020 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 15 November 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant has been in Australia for a lengthy amount of time without any significant progression in her course of study, that raised concerns regarding the applicant’s intention to remain in Australia temporarily and in consideration of the applicant’s immigration history, the delegate was not satisfied that the applicant has satisfied the Genuine Temporary Entrant criteria.
The applicants appeared before the Tribunal on 5 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Songkran Chuenjai. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicants were assisted in relation to the review by their registered migration agent.
The applicant confirmed to the Tribunal that she had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that she understood that the reason for the refusal to grant the visa was because she was not a genuine student.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The applicant is a 32 year old from Thailand, who provided evidence that she first arrived in Australia on 2 June 2013 and subsequently on 19 April 2014.
The applicant confirmed in evidence the following student enrolments whilst on student visas in Australia:
a.General English from June 2013 to November 2014 – completed;
b.General English from March 2014 to August 2014 – completed;
c.Certificate III in Business from August 2014 to February 2015 – completed;
d.Certificate IV in Business from February 2015 to August 2015 – completed;
e.Diploma of Business Administration from August 2015 to September 2016 – not completed;
f.Certificate II in Financial Services from April 2016 to September 2016 – completed;
g.Certificate III in Accounts Administration from September 2017 to September 2018 – completed;
h.Certificate IV in Accounting from September 2017 to September 2018 - completed;
i.Diploma of Accounting from September 2018 to September 2019 – completed;
j.Advanced Diploma of Business from November 2019 to May 2021 – not completed;
k.Advanced Diploma of Business from July 2020 to July 2021 – completed
The applicant provided the Tribunal with conformation of enrolments to undertake the following courses of study:
a.Certificate IV in Commercial Cookery from 5 July 2021 to 12 February 2023;
b.Diploma of Hospitality Management from 27 March 2023 to 13 August 2023.
The Tribunal asked the applicant why she was undertaking Commercial Cookery and she stated that it was because of a change as she is working in hospitality.
The Tribunal asked if it was a motivation to obtain Permanent Residency and the applicant responded: “No. Not the motivation”. The applicant also stated: “No. My desire I plan to go back as soon as I complete my course”.
The Tribunal asked the applicant why she had undertaken studies for 8 years in the VET sector and she responded that it was to finish a plan to help an auntie in Thailand. The applicant provided evidence of a family owned medical clinic, where she originally proposed to undertake work upon her return to Thailand after completing business course studies
The applicant stated that she decided to study more in Australia because she was working in the kitchen and would go back to Thailand to get a good job and that there was an opportunity to work in this line in Thailand.
The applicant stated that she is currently working 20 hours per week with the Sushi Train Sutherland making sushi and is paid $20.00 per hour.
The applicant stated that she has no family in Australia, just her husband.
The Tribunal asked the applicant if there was any reason that would preclude her from returning to Thailand and she responded: “No. All family members are in Thailand”.
The Tribunal asked where the applicant would work and the applicant responded that she planned to work in a 5 star hotel in Thailand and that she wanted to work as a cook or chef.
The Tribunal asked the applicant if she had a job offer and she responded: “If I get a certificate I do apply. At the moment I have not applied as I have not got certificate”.
The applicant was asked when she intended to return to Thailand and she responded: “When finish cooking course”.
The applicant provided evidence that she last returned to her home country in April 2019.
The applicant stated that she was living in Sutherland, Sydney, in a share-house with her husband and two friends.
The Tribunal asked the applicant if she wanted to make any other comment and she stated: “I just would like to have a chance to finish my course. I love my course and want to complete it. I want to go back to work along this line”.
Witness Evidence - Mr Songkran Chuenjai
The witness stated that the reason he came to Australia was to live and work with his wife for their future in Thailand.
The witness stated that he did not want to be away from her and wanted to help with decisions for study and other things. He said he was working here but not permanent and he hoped he could use his line of work here in Thailand. He stated that he was serving at the restaurant and was paid $20.00 per hour.
Representative Submission
The representative submitted that the applicant has confirmed that she is not related to PR and sought a qualification to return to Thailand.
He stated that the change in direction was originally to work in the family medical clinic but changed courses because she was working as a cook having completed a degree in Thailand in Hospitality and Tourism.
The Representative stated that the medical clinic was high risk because of covid and the applicant wanted a change in career. He stated that the sushi train is not a restaurant and as such there is no opportunity for sponsorship, as it is linked to the fast-food restaurant industry. He stated that the course in Thailand, compared to Australia, is not that cheap and that the Australian work experience provides an opportunity.
The applicant submitted a GTE Statement to the Tribunal on 22 September 2021 that concluded with the following statement:
“I confirm that I am a genuine student and my goal to be in Australia is to study to gain the skills and knowledge that I would assist me with my future career when returning home. My intention to be in Australia is for a temporary basis only and I would like to use this period in Australia to advance my knowledge and skills in commercial cookery and update my knowledge in hospitality management and to use Australian qualifications to gain entry as a chef into good organisation such as in 5 stars hotel kitchen or fine dining restaurant kitchen when returning home.”
Genuine applicant for entry and stay as a student (cl 500.212)
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?
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.
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.
The Tribunal has considered the oral and writeen evidence, provided by the applicant, in the context of Direction 69 and finds that the applicant is not a genuine temporary entrant for the following reasons:
a.The applicant first arrived in Australia on 2 June 2013 and subsequently on 19 April 2014 and has provided evidence that she had completed a Bachelor of Hospitality and Tourism in Thailand before arriving in Australia. In the period of residency in Australia the applicant has enrolled in 11 VET sector courses at the certificate or Diploma level and has completed 9 of those courses, whilst on temporary residency Student visas and has not academically progressed to the Higher Education sector after a period of 8 years study, the applicant now contemplates another 20 months of further study in the VET sector. The Tribunal finds that the lack of academic progression demonstrates that the applicant is not a temporary entrant for entry and stay, as a student;
b.The applicant originally pursued courses in English and variants of business, which demonstrated a degree of relationship to a Business career to support engagement in the family medical clinic in Thailand, however, the applicant has now reverted to a certificate level course of study in Commercial Cookery from an Advanced Diploma in Business. Whilst the Tribunal accepts the plausibility of a change in career, given the association of work in the family medical clinic, and the risks of Covid, the applicant has not provided any evidence of a specific job offer and has vaguely asserted a desire to work in a 5 star hotel. The Tribunal is not satisfied with this rationale for a change in course direction after 8 years of temporary residency and finds that the applicant is using the temporary student visa stream to maintain lifestyle and residency, with both she and her husband working 20 hours per week;
c.The applicant has provided evidence that she has returned to her home country on three occasions since arriving in Australia for a total of 20 weeks in 9 years and that her last visit to her home country was in April 2019. As such, the Tribunal is satisfied that the applicant has maintained some ties with her home country, but the Tribunal finds that on balance the applicant has stronger ties to remain onshore in Australia without returning to Thailand, despite the acknowledged presence of family living in Thailand;
d.The applicant, on the evidence, has provided evidence that she works in a Sushi Train Restaurant with her husband and Tribunal accepts the evidence that they are both paid $20.00 per hour for 20 hours per week and live in a share-house with other occupants. The Tribunal regards, these hourly payment as a reasonable hourly rate by Australian standards and even more so in comparison to a comparable job in the home country. As such, the Tribunal finds that the applicant’s maintenance of residency in Australia is for pecuniary benefit, apart from the desire to maintain residency and a lifestyle in the Australian community;
On balance, the Tribunal considers that the applicant has stronger ties to Australia through residency, work and lifestyle than with her family and future prospects in Thailand given that she left Thailand in 2013 as a university graduate with a Bachelor of Hospitality and Tourism and has not improved on the level of that qualification, which would amount to 10 years of temporary student visas, if the visa was granted.
Further, there is no evidence before the Tribunal that would suggest that the applicant has any reason not to return to Thailand and that to the contrary there is every indication that the applicant has developed a desire to remain in Australia for the purposes of residency and the lifestyle. As such, the Tribunal is satisfied upon the review of the criteria pertaining to Direction 69 that there is no further material before the Tribunal to be considered, that would mitigate a finding that the applicant is not a temporary genuine entrant for stay and study in Australia.
Based on what is evidenced of the applicant’s circumstances overall, in the absence of any other relevant information, including her immigration and study history, her circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student. As such, the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
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.
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.
On the basis that the primary applicant has not satisfied the requirements for the grant of a Student (subclass 500) visa, it follows that the secondary applicant is not a member of a family unit that has satisfied the criteria for the grant of a visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Warren Stooke AM
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;
d.whether 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.

[2021] AATA 5441

17 December 2021

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