FUNGSUKSAKUN (Migration)

[2017] AATA 1842

FUNGSUKSAKUN (Migration) [2017] AATA 1842 (26 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms PHATTHANAN FUNGSUKSAKUN
Mr PEERAPON FUNGSUKSAKUN

CASE NUMBER:  1612452

DIBP REFERENCE(S):  BCC2016/1851765

MEMBER:Wendy Banfield

DATE:26 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 26 September 2017 at 9:28pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine student – Genuine temporary entrant – Enrolment in lower level course – Inadequate reasons for course choice – Limited English

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulation 1994, Schedule 2 cl 572.223, r 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration 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 to the Department of Immigration for the visas on 26 May 2016. The delegate decided to refuse to grant the visas on 9 August 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations. After considering the applicant’s circumstances the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia. The applicant’s current studies were considered and it was found she had not demonstrated the relevance of her studies in Australia to her employment prospects in her home country.

4. The applicants appeared before the Tribunal on 16 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the secondary applicant, Peerapon Fungsuksakun. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

   The hearing

6. The applicant said she first came to Australia on 4 May 2015 with the intention to study a university course, although she did not recall what it was. The course was to be studied at Kent College and was preceded by an English course. The Tribunal asked the applicant what she was enrolled in initially and she said it was a university course and English course. She did not commence higher level studies as the CoE was cancelled. According to the applicant, this had occurred because her English was not sufficient. She said she had enquired with the college about the English requirements but there was no reply and then her CoE was cancelled. For this reason, the applicant claimed she had to find a new course.

7. The Tribunal asked the applicant why she came to Australia to study and she said mainly to improve her English. Her level of education prior to arriving in Australia was a vocational certificate in Agricultural Studies. The applicant said her plan in studying higher education in Australia was to study English and obtain a certificate that would mean she could obtain a higher salary in Thailand. Regarding career plans, the applicant declared her family has their own agricultural business and she will either work for them or for a company. When asked what type of company the applicant would work for, she said she did not have a particular plan at first, she had hoped to obtain a degree and then apply to any company for work. Once her visa application had been refused, the applicant said she considered studying accounting and may be able to apply for work in a bank.

8. The applicant’s tertiary studies had been difficult due to her level of English and she said once she completes the current course, that will be enough. The applicant is studying a Diploma of Accounting which commenced in March this year. It will be finished in March 2018 and she said she plans to return to her own country after that. However, the applicant then said she is enrolled in an Advanced Diploma and wants to complete that program also in March 2019.

9. The secondary applicant is the applicant’s husband who currently works in a restaurant. The applicant said she works in on call in a massage business and had worked in a clothing store and beauty salon previously. The applicant declared she had no other family in Australia other than her husband. In Thailand she has her parents, siblings and other extended family. The applicant said she chose to study in Australia to improve her English and gain a qualification to assist with finding work.

10. The Tribunal asked the applicant to comment on the Department’s reasons for refusing her visa application. She said she understood the Department did not accept she had come to study. She was asked to comment on her lack of a career plan or relevance of her studies to her future. The applicant said at first she wanted to take a university course but had encountered problems and she thought accounting would be good for her family business; also it is a profession that can be done at home. The applicant said with English and a qualification from Australia it would be easy to find work in her home country.

11. The Tribunal referred the applicant to her claim that she had chosen to study accounting based on the recommendation of friends. She declared that was not true and said there may have been a misunderstanding because of her previous agent. The Tribunal referred the applicant to a written statement in which she said friends had recommended she study accounting. The applicant agreed this was the case. The applicant reiterated she plans to return to Thailand after her studies as she wants to start a family and begin working. The applicant has not returned to Thailand since arriving in Australia in 2015.

12. The secondary applicant gave evidence at the hearing. He said the applicant was studying accounting and this had been her original plan. He said at first the applicant studied English and agreed she had been enrolled in higher education but did not start it. According to the secondary applicant, this was because her English was not good enough. It was claimed that on their return to Thailand, their plans are to find work. The secondary applicant said his family has a farm but the primary applicant will work in accounting. He said where she works will depend on what she wants to do.

    Submission of the representative - Chee Hwei Chen

13. It was submitted the applicant did not have the required evidence at the time of the visa application and a freedom of information application was made. Ms xx said, regarding the Department’s findings that the applicant was only studying accounting on the recommendation of friends, it was claimed that in fact, she wanted to study accounting with friends. Ms Chen submitted the applicant then did the right thing in applying for a Subclass 572 visa and it is her intention to complete the course and return home.

14. The Tribunal referred to the fact the applicant had not been able to say what she had originally been enrolled to study. Ms Chen stated that when the applicant came to her, the Department’s decision has been too difficult and required summarising. It was claimed that for this reason, and because of the previous agent, the applicant had no recollection of the Bachelor of Business CoE. In addition, the applicant had been trying without success to get information from her previous agent about the English requirements for her course.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

17. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that 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)     …

18. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

19. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

20. The Tribunal considered the applicant’s circumstances in Thailand, her potential circumstances in Australia, her immigration history and other relevant information in making its decision. The evidence submitted to both the Department and the Tribunal has been taken into account.

21. The applicant came to Australia in May 2015 for the purpose of studying an English Language Program and a Bachelor of Business. However, at the Tribunal hearing the applicant could not recall what she had originally planned to study. She explained that she had been unable to commence her university course due to her inadequate level of English and claimed this resulted in her enrolment being cancelled. Instead of persevering with English studies and pursuing her original plans, the applicant enrolled in lower level courses, in breach of her visa conditions which required her to study a course in the Higher Education Sector.

22. On the evidence available to the Tribunal, the applicant’s circumstances in her home country are that she had her parents, siblings and extended family members there, but her husband is with her in Australia as a secondary applicant. The applicant has not returned to Thailand since her arrival more than two years ago. The applicant declared she completed her education to certificate level in Thailand but wanted study in Australia to give her greater opportunities for employment and a better salary in her own country. The applicant does not have specific plans for her career on her return to Thailand. She said she would either work in the family business or look for a job, possibly in a bank.

23. The applicant’s potential circumstances in Australia are that she and her husband are working and supporting themselves which is an incentive to remain in Australia. While they have family ties to Thailand, the applicant did not commence the course she came to undertake and enrolled in lower level courses in breach of her Subclass 573 visa. Together with the applicant’s inability to remember the name of the course she was originally enrolled in suggests she is not a genuine student and is instead maintaining residency in Australia through the student program.

24. The Tribunal considered the value of the courses undertaken in Australia to the applicant’s future. The applicant’s evidence about her plans upon her return to Thailand were vague and without detail. She was only able to say her accounting studies would assist her in finding a job, either for a company or with her family business. The applicant suggested she may be able to obtain work in a bank but did not provide any detail or evidence of any concrete plans in that regard.

25. The Tribunal was concerned that the applicant stated she planned to return to Thailand after she completes her current Diploma course in March 2018 but then said she is also enrolled to take a further Advanced Diploma course that will finish a year later, in March 2019. Given the applicant provided no specific information about her plans on her return to Thailand; the Tribunal is not satisfied the applicant’s current studies are being undertaken to enhance her career prospects and remuneration in her own country.

26. The Tribunal accepts the applicant is currently enrolled and studying a Diploma of Accounting but is not satisfied she has demonstrated behaviour consistent with that of a genuine student. Rather than pursue her English studies to allow her to undertake her original course of study, the applicant breached her visa conditions and enrolled in a lower level course. The applicant denied she had only enrolled in accounting on the advice of friends rather than due to a genuine interest but she was unable to give adequate reasons for taking this course, and could not demonstrate any specific plans for the future based on her qualifications.

27. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

28. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    Member of Family Unit – Secondary visa applicants

29. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

30. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the secondary applicant is unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.572.223.

    DECISION

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

    Wendy Banfield
    Member