Joomjana (Migration)

[2019] AATA 1451

Joomjana (Migration) [2019] AATA 1451 (1 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Suteera Joomjana

CASE NUMBER:  1719411

HOME AFFAIRS REFERENCE(S):           BCC2017/1730625

MEMBERS:P. Wood (Presiding)

D. Triaca

DATE:1 May 2019

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 01 May 2019 at 4:51pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – value of course – business plan – possess relevant skills and work experience already – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 May 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant appeared before the Tribunal on 4 March 2019 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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?

9. 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.

10. 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.

11. The Tribunal has read and had regard to the documentation provided by the applicant to the Department. This includes her record of responses to application for a student visa (df 1 – 18), passport extracts (d 20-21), letter confirming her financial support from Mrs Akka dated 27 April 2017 (df 22), the applicant’s resume (df 23-24), a Thai National Identity Card (df 27), document entitled personal statement to support my student visa application dated 12 May 2017 (df 28-33), confirmation of completion of certificate in commercial cookery (df35-36), application for a bridging visa, evidence of the applicant’s health cover (df 45), academic results from Australian Institute of Technical Training Pty Ltd (df 47-48), academic results from William Angliss Institute (df53-54).

12. On 27 January 2019, the applicant provided further documentation to the Tribunal including a Certificate of Enrolment, academic transcript, letter and Certificate III in Patisserie from Academia International and a written response to the Tribunal’s request for further information. The Tribunal has read and had regard to this documentation.

13. By email dated 4 March 2019, the applicant provided further documentation to the Tribunal including 1. current COE; 2. letter of enrolment 3. Academic transcripts and certificate; 3.1 General English at Geos; 3.2 Further studies preparation at Impact; 3.3 Diploma in hospitality at William Angliss; 3.4 Certificate 3 in commercial cookery at AITT; 3.5 Certificate 4 in commercial cookery at AITT; 3.6 Advance Diploma in hospitality at AITT; 3.7 Certificate 3 in Patisserie at Academia 4. attendance record; 4.1 teacher feedback; 4.2 work placement attendance record; 4.3 proof of attendance from social media 5. “work evidence” including documentation from Simply Thai, Melbourne Convention & Exhibition Centre, Melbourne Cricket Ground, Qantas Lounge, Atlantic Group; 6. Genuine Student Explanation Statement. The Tribunal has read and had regard to this documentation.

14. The Tribunal has read and had regard to a document entitled personal statement to support my student visa application dated 12 May 2017 (df 28-33), that sets out her reasons for studying in Australia and choosing her private education provider. The Tribunal has also read and had regard to the applicant’s letter to the Tribunal dated 24 February 2019.

15. On 27 March 2019, the applicant provided a further letter to the Tribunal containing photographs. The Tribunal has also read and had regard to this document.

16. The applicant is 35 years old. She first arrived in Australia on 10 July 2009. She was first granted a student visa off shore. Since her arrival in Australia, she has held various visas including student, visitor and works and holiday visas. In February 2012, her Australian student visa was refused. She subsequently lodged a student visa TU-500 application to study a Certificate IV in Patisserie under vocational education sector in Australia. This visa is the subject of review.

17. The applicant stated that both her parents are resident in Thailand. Her father is a retired government official. Her mother was a head teacher of mathematics. She states that she speaks to her family by telephone regularly and via social media. She is not married and has no dependents. The Tribunal finds that over a substantial period the applicant has been able to manage personal relations overseas whilst living in Australia by keeping in touch from Australia and visiting and in these circumstances her personal ties to her home country do not operate as a significant incentive to return.

18. The Tribunal has considered the applicant’s ties with Australia. The applicant has a sister. In her application for a student visa she referred to her sister’s usual country of residence as Australia and in her oral evidence she referred to her sister as her family in Australia and stated in her evidence that she lived in a share house with her sister, her roommate and her sister’s partner. The Tribunal accepts her statement that she has no community ties to Australia and finds that the applicant’s ties with Australia do not operate as a strong incentive for her to remain.

19. Prior to arriving in Australia, the Applicant completed a Bachelor of Business Administration in 2006 and a Master of Business Administration in 2008, both at the Khonkaen University (the Applicant’s University courses).

20. Since arriving in Australia, she has completed a Diploma of Hospitality, Certificate 3 in Commercial Cookery, Certificate 4 in Commercial Cookery and a Certificate 3 in Patisserie. She is currently enrolled in a Certificate IV in Patisserie at the Academia International Academy in Melbourne.

21. The applicant stated that her GTE statement on 12 May 2017 that her reasons for studying in Australia were, amongst other things, her familiarity with the local culture, Melbourne being voted the most liveable city in the world 6 years running and Australia being the best place to learn and acquire new skills. She stated that in Thailand, “usually obtaining qualification in class room and theory based environment, whereas Australia, internship and work placement are compulsory components where I can apply theory into practice.” In her letter to the Tribunal dated 24 February 2019, the applicant stated that “there is a similar course” available at Le Cordon Bleu but it was more expensive. The Tribunal does not accept that the applicant has demonstrated she has reasonable reasons for not undertaking study in her home country or region. The applicant is currently enrolled in a certificate IV in patisserie. There is no evidence before the Tribunal to suggest that there is no equivalent course available in Thailand.

22. The applicant stated that her future plan, upon completing her studies, is to return to Thailand and work as a pastry chef. Her back up plan is to open her own business. She stated that she currently works as a waitress at the Qantas Lounge and has done so for approximately 4 years. She says she earns approximately $800 - $1000 AUD per fortnight.

23. The Tribunal considers that objectively, the applicant has more than sufficient skills, knowledge and qualifications to return to her homeland and find employment in her chosen industry, noting that she holds a Certificate 3 in Patisserie. The Tribunal takes into account that the applicant confirmed in her response to the Tribunal’s request for further information that she found work in Melbourne as a pastry cook at the Westin Hotel in 2018. In light of the fact that the applicant has demonstrated an ability to find work as a pastry cook in a major international hotel in Melbourne, the Tribunal considers that she ought to be able to find work in that field in her home country on the strength of her Certificate III in Patisserie.  

24. Objectively, the applicant’s proposed course of study is of limited value in circumstances in which she holds a Certificate III in Patisserie, appears able to obtain work as a Patisserie cook should she choose and she is already a University graduate in her home country. She has not demonstrated that her proposed further study will assist her in obtaining employment or improving her employment prospects in her home country or a third country. Whilst the Tribunal accepts that there may some benefit in holding a Certificate IV in Patisserie as opposed to a Certificate III in that vocation, the Tribunal assesses any benefit as minor. Further, the practical reality is that on the applicant’s own evidence, at the time of the decision she will have completed the course and in those circumstances will have acquired the relevant skills offered by her chosen course.

25. The applicant states that her potential remuneration in Thailand as an entry level pastry chef is 283,564 Bah ($13,000 AUD). There is no evidence before the Tribunal in terms of comparison to remuneration a similar level pastry chef can receive in Australia. 

26. The Tribunal also recognises that the United Nations classifies Thailand as a “high human development” country, ranking it 83^rd in the world by the United Nations Human Development Index, whereas Australia is classified as having “very high human development” and is ranked third. It is an objective measure that provides a further basis for being concerned that the applicant’s visa application may have been primarily motivated by the more general economic opportunities, rather than the specific educational opportunities to which her visa application refers, that staying in Australia may represented.[1]

    [1] United Nations Development Program, Human Development Indices and Indicators: 2018 Statistical Update (UNDP, 2018).

27. The applicant’s travel history reveal that she has travelled to her home country on 12 separate occasions since her first arrival in Australia for periods ranging from one year to one week. She states that she has also holidayed in Korea, China, Hong Kong, New Zealand and USA.

28. Her visa history is unremarkable save that her visa was refused whilst offshore in 2012. She states, “At the time I applied to study English for further study course as I wanted to improve my English before undertaking in the Diploma course. I have informed my IELTs(General) was 5.5 which didn't meet the criteria of studying in VET course which requires a minimum of IELTs(Academic) 6. However, the case officer has refused my student visa as he was not satisfied that I'm a genuine student. He also mentioned on phone interview that my English was good enough to do the diploma. Unfortunately, this misunderstanding granted me a bad record on Australian immigration already. After visa refusal, I took the IELTs(Academic) and my score was 5 which I need to enrol an English course in order to go for a further study.” The Tribunal accepts that this situation was resolved and the applicant was granted a student visa in August 2012 and a further student visa in March 2015. Her subsequent application for a student visa made in May 2017 was refused by the Department on 15 August 2017 and is the subject of this application.

29. The applicant stated that she was not concerned about any political or civil unrest or potential military service in her home country.

30. 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).

31. 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.

32. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    P. Wood
    Senior Member

    
    

    D. Triaca
    Member

    
    

    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:

    c.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    d.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    e.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    f.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

    g.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;

    i.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    ii.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

    iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country

    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.