DAENWONG (Migration)

[2018] AATA 3241

DAENWONG (Migration) [2018] AATA 3241 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs ANOTHAI DAENWONG
Mr KARUN DAENWONG

CASE NUMBER:  1705561

Home Affairs REFERENCE(S):                BCC2017/345892

MEMBER:Jennifer Cripps Watts

DATE:12 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 July 2018 at 6:23pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine student – pursuing another visa outcome – current employment – relevance of employment to course – change of career direction – no progression beyond VET courses – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.212, 500.311

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

2. The applicants applied for the visas on 25 January 2017. 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.

3. 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 (the Regulations) because the delegate was not satisfied the applicant is a genuine applicant for entry and stay as a student.

4. The visa application that is the subject of this review was refused on 20 March 2017.  The applicant applied for review by the Tribunal on 22 March 2017, within time, and provided the Tribunal with a copy of the Department’s decision to refuse the student visas.  The applicants’ matter was constituted to this member and, on 11 April 2018, the Tribunal sent the applicant a written invitation to attend the hearing scheduled on 10 May 2018.    

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 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). 

6. The applicants responded to the hearing invitation indicating they would attend the hearing.  The applicant did not provide the Tribunal with any additional documentary information in support of her application prior to the hearing.  SMS hearing reminders were sent to the applicant’s mobile number on 3 and 9 May 2018.  No error or undelivered message was received back by the Tribunal.

7. The applicant appeared before the Tribunal on 10 May 2018 to give evidence and present arguments.  The secondary applicant did not attend the hearing.  The Tribunal is satisfied he was properly invited to the hearing and has proceeded on the basis that he has waived his right to give oral evidence.  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

8. The applicants were assisted in relation to the review by their registered migration agent, Hong Fang, Migration Agent Registration Number 0534103.

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. All criteria must be at the time a decision is made on the application. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student: cl.500.212. Whether the secondary applicant satisfies the criteria will depend on whether the applicant meets the primary criteria, as to be granted a student visa he needs to be a member of the family unit of a person who holds a student visa and meets the criteria for the grant of a student visa: cl.500.311.

    Genuine applicant for entry and stay as a student (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 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. The applicant was not considered to be a witness of credit.  She gave vague answers and claims to be a genuine applicant for entry and stay as a student, while at the same time qualifying that intention, by implying that if she is granted a 407 training visa she will not need the student visa.  The Tribunal’s view is that she is using the student visa programme to maintain residence while she pursues an outcome in the other visa application and that she is not a genuine applicant for entry and stay as a student. 

15. In addition, while she claims to be intending to now pursue a career in marketing for a bakery in Thailand, she is at the same time claiming to be intending to work for a restaurant while she does training in that field in Australia.  In the view of the Tribunal, the applicant has confused and unformed career goals, that are prone to change, and that are not consistent with her area of study.

    Background

16. The applicant is a 28 year old citizen of Thailand.  He husband is also a Thai national – he is 37 years of age.  The applicants arrived in Australia on separate student visas, the applicant on 9 February 2009, holding a subclass 570 student visa, and the secondary applicant on 6 November 2008 holding a subclass 572 student visa.  The applicants have resided in Australia since then holding student or related bridging visas.  They married each other in Thailand on 5 February 2015 and, soon after that, the applicant added her husband to her student visa as a dependant.  They have travelled offshore fairly regularly over the years.

17. The applicant said that her husband did not want to attend the hearing, but that they are still married and living together.

18. When she was studying travel and tourism in around 2014, the applicant said she intended to return to Thailand, open a resort and work with her aunt in tourism, but that her aunt married someone else in Thailand about three years ago, so the plan changed.  The applicant said she then got a job in hospitality in Australia, so decided to pursue study and a career in hospitality.  She did an Advanced Diploma in Hospitality and completed it in 2016.  The applicant has now taken up study in the field of marketing, but continues to work in hospitality, in a coffee shop at the airport.  She said she’s been working there for about two years.  There is no evidence before the Tribunal that she has ever done any marketing work or that she intends to while she studies marketing.  The applicant said her husband works as an Uber driver, they live together and pay about $300 a week in rent.

19. The applicant was asked if she had provided the Tribunal with a statement addressing the Genuine Temporary Entrant (GTE) criteria, which had been requested, and said she provided one to the delegate.  As she had not provided a GTE statement to the Tribunal, she was asked if she still wished to rely on the earlier one provided with her visa application.  She confirmed that she had not provided one to the Tribunal, but that nothing in her GTE statement had changed since the time of application, it remained the same.  It became clear that it had not remained the same when she continued with her oral evidence.

20. After saying there had been no change to the matters in her time of application GTE statement, the applicant then said that she has applied for a subclass 407 training visa and said she had applied for it “last month”, which the Tribunal takes to mean in or around April 2018.  She said the sponsor is B Migrate and that they are going to employ her to train to be a manager in their restaurant.  This has led the Tribunal to the view that things have changed and that the applicant, unless she was asked, did not intend to inform the Tribunal of the change to her circumstances.

21. The Tribunal cannot see how working, or having an intention to work, in a restaurant on a subclass 407 training visa (for the purpose of workplace-based training to enhance her skills in her current occupation – restaurant work) is consistent with or relevant to a concurrent claim that the applicant is a genuine applicant for entry and stay as a student, with an intention to return to her home country to work as a marketing director in an international bakery business.  Her claims about the marketing course and her career goal in Thailand are considered to be fanciful and without credit. 

22. She has said, on the one hand, that her career goal is to finish a package of marketing courses and return to Thailand to take up a position as marketing director for a friend, Mr Patcharawat, who runs a wholesale bakery.  It is claimed that the applicant is needed to work there to help him expand the business internationally.  It is for this reason, the applicant claims, that she has enrolled in a package of marketing courses that are due to finish in November 2019.  She has then said, on the other hand, at the hearing, that she is hoping to be granted a 407 training visa to work in a restaurant, possibly for up to two years.

23. The applicant had, before changing to marketing, studied hospitality.  Before studying hospitality, she had studied travel and tourism.  In the nine or so years the applicant has resided in Australia holding student and associated bridging visas, she has not progressed beyond VET level courses and has changed course/career direction at least twice.  The prospective end date for her current Advanced Diploma of Marketing enrolment is November 2019.  This will take her total time onshore as a temporary visa holder to nearly 11 years.  She has now applied for a subclass 407 training visa (in the hospitality or restaurant business), which is inconsistent with her stated career goal and, if granted, may allow her to remain in Australia for another two years.

24. The Tribunal has significant concerns about the applicant’s motivation for entering into a three year package of marketing courses (from 2016 to 2019) unrelated to her previous study - in Travel and Tourism, and Hospitality - and has formed a view, when Direction Number 69 factors have been considered, that she was using the student visa programme to maintain residence in Australia, at the time application, and that she is continuing to use it to maintain residence at the time of this decision.  She is now simultaneously awaiting an outcome for a nomination so she can be granted a 407 training visa in the restaurant industry and an outcome in her student visa matter claiming she plans to work as a marketing director in Thailand.

25. The applicant’s propensity to change career direction, which appears to the Tribunal to depend on whatever job she is offered in Australia, does not satisfy the Tribunal that she has a clear career direction and the Tribunal does not consider the plan to return and work in the bakery in Thailand to be a credible claim.  It is of further concern that the applicant, when asked, could not even say where the restaurant is that is nominating her for sponsorship.  She said it is far from the city, but could not give any more detail than that.  The Tribunal holds quite serious doubts about the applicant’s credibility.

26. The applicant has completed the following courses since arriving onshore in 2009:

    a.2009 & 2010               English

    b.2012-2014                  Certificate/Diploma Travel and Tourism

    c.2014-2016                  Advanced Diploma of Hospitality

    d.2016-2017                  Certificate IV Marketing and Communication

27. There was a course that was not completed:

    a.2010-2012                  Master of Business Administration

28. She provided COE’s indicating she is enrolled in:

    a.2017-2018                  Diploma of Marketing and Communication

    b.2018-2019                  Advanced Diploma of Marketing and Communication

29. The applicant has provided evidence that she has achieved competency in the Certificate IV in Marketing and Communication and the Tribunal is satisfied that she has enrolment in the Diploma and Advanced Diploma through to November 2019, at the time of this decision.  The Tribunal is not, however, convinced the applicant, if she is granted the 407 training visa, will finish the Advanced Diploma in Marketing.

30. The applicant claimed, up to the time of the hearing, to be intending to return to Thailand with her husband, to work as a marketing director for a wholesale bakery.  She has provided no written, nor any corroborative, evidence of this arrangement she claims to have with Mr Patcharawat.  The Tribunal does not consider it to be a credible or reliable claim.  The applicant has provided no evidence to the Tribunal that she has in the past gained any relevant work experience in marketing or the bakery business.  On the evidence she has provided, there is no future intention to work in marketing or the bakery business to gain any relevant work experience.  The Tribunal is not satisfied that the applicant has plans in place to return to Thailand and work as a marketing director for a bakery. 

31. It is accepted she has family in Thailand, but not that her ties to her home country are sufficient motivation for her to return there.  The strong view held by the Tribunal, on the evidence, is that the applicant does not consider her time in Australia to be temporary.  She has been residing in Australia as a temporary or bridging visa holder for more than nine years and has not progressed academically beyond VET level.  She lives here with her husband and has lived here almost all her adult life.

32. While her ties to Australia strengthen, in the view of the Tribunal her ties to her home country are diminishing and she has not persuaded the Tribunal she intends to return to Thailand or that she considers her time in Australia to be temporary.

33. 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).

34. 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.

35. The Tribunal is satisfied that the secondary applicant was properly invited to the hearing to give oral evidence and that he chose to waive the right by not attending the hearing.  The Tribunal is satisfied, on the face of it, that the secondary applicant remains a member of the applicant’s family unit.  The Tribunal has affirmed the decision to refuse the applicant’s student visa.  There is no claim that has been made that satisfies the Tribunal that the secondary applicant is a member of the family unit of a person who holds a student visa and who has satisfied the primary criteria for a student visa.  Therefore, the Tribunal finds that the secondary applicant does not meet the secondary criteria:  cl.500.311.

    DECISION

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

    Jennifer Cripps Watts
    Member