Khongsawat (Migration)

[2019] AATA 2238

Khongsawat (Migration) [2019] AATA 2238 (4 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Athiwat Khongsawat

CASE NUMBER:  1700705

HOME AFFAIRS REFERENCE(S):           BCC2016/3258153

MEMBERs:Shahyar Roushan (Presiding)

Damian Creedon

DATE:4 April 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

•cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 04 April 2019 at 2:55pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – credible witness – change in career pathway – English language – commercial cookery – decision under review remitted

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 3 March 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 13 August 2016. 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 review applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The relevant criteria

1. 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 satisfies cl.500.212(a).

2. 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.

Direction No.69

1. 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.

2. 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.

Overview of evidence

1. The applicant is a 39-year-old Thai national who first arrived in Australia as the holder of an Class TU subclass 570 (ELICOS) visa, granted on 14 March 2016.

2. The Tribunal had before it a copy of both the delegate’s decision and the Department’s file in relation to the application.

3. The Tribunal also had before it a number of documents provided by the applicant before the hearing relating to his personal circumstances and education history since his arrival in Australia.  Save as required for the purposes of this decision it is unnecessary to list these documents in detail.  Relevant documents will be referred to as required.

4. The applicant’s Provider Registration and International Student Management System (PRISMS) record shows, as at 12 March 2019, that upon arrival in Australia the applicant was enrolled in a six month course in Preliminary Spoken and Written English. 

5. The applicant’s PRISMS record further shows that since his arrival in Australia he has been enrolled in 12 courses (including that outlined above) and has completed the following three:

Course Name	Date Commenced	Date Completed
·     Certificate I in Spoken and Written English	04/04/2016	16/09/2016
·     Certificate II in Spoken and Written English	17/10/2016	14/04/2017
·     Certificate III in Spoken and Written English	15/05/2017	10/11/2017

1. PRISMS shows that the applicant is presently enrolled in a course of General English (Elementary to Advanced) which he commenced on 4 March 2019 and is due to complete on 27 September 2019.  He is also enrolled in a Certificate IV in Commercial Cookery to commence on 30 September 2019 and complete on 11 December 2020 and a Diploma of Hospitality to commence on 14 December 2020 and complete on 22 October 2021.  The applicant provided the Tribunal with Certificates of Enrolment confirming these details.

2. In his genuine temporary entrant statement accompanying his application to the Department the applicant sets out the following information:

   a.He wishes to study commercial cookery and hospitality because he has a friend in Thailand who owns a Thai restaurant; his friend would like to develop a more international style to attract and serve foreign customers.

   b.He has researched the Australian meat export industry and sees an opportunity to import Australian meat into Thailand.  From his research and experience he also sees an opportunity to export Thai products to Australia.

   c.Study in Australia provides him with an opportunity to experience a multicultural society and to “try an enormous variety of foods from around the world”.

   d.He concedes that there are “many similar courses available in Thailand”, however he maintains that the hospitality industry in Thailand is changing to accommodate increased international tourism for which he provides examples.

   e.He states that he decided on his particular education provider on account of the provider’s good reputation, the course packaging available, and the opportunity for practical, work-based training.

3. The applicant appeared before the Tribunal on 18 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. Where relevant, the applicant’s evidence to the Tribunal is referred to in its analysis below.

Analysis and findings

1. For the following reasons the Tribunal has concluded that the application for a Student (Temporary) (Class TU) visa should be remitted for reconsideration.

2. The Tribunal found the applicant to be a credible and truthful witness who, where possible, supported his oral statements with documentary evidence.  The Tribunal found the applicant’s oral evidence to be consistent throughout and in giving the evidence he did not convey an impression of concoction or recent invention.

Does the applicant intend genuinely to stay in Australia temporarily?

1. The Tribunal initially shared the delegate’s concerns, as stated in her decision record, in relation to the generic and insufficient information provided to the Department regarding the change in his career path and future job offer. At the Tribunal hearing, the applicant explained that from 2013 until he took up study he and a business partner ran an “agency” in Thailand which provided English language teachers to local primary schools (specifically not English language schools). He decided to study overseas to improve his English language skills.  His business partner had learnt English overseas and, in running the agency, he relied solely upon his partner to converse in English which he felt placed him, and the business, at a disadvantage. When asked by the Tribunal why, after completing his English language courses at the end of 2017, the applicant changed the focus of his studies to commercial cookery, he stated that while he had been studying in Australia his partner had closed their agency business as he had not been able to run it on his own.  Consequently the applicant had decided to take up commercial cookery as a new career pathway. The Tribunal found the applicant’s evidence persuasive and accepts that his study plans have changed during his time in Australia due to the unexpected closure of his agency business and his need to reassess his career pathway.

2. The Tribunal also found the applicant’s evidence in relation to his future career plans persuasive. The applicant’s evidence at the hearing indicated that upon completion of his courses he plans to return to Thailand to open a restaurant business with his sister in their home town.  He stated that his sister is keen for him to complete his courses and return home to start the business and to help care for their aging mother. The Tribunal is prepared to accept that, although he plans to offer Thai food at his restaurant, he wishes to pursue study in Australia as successfully completing foreign courses presents him with the opportunity to learn western techniques and offers him a prestige in the local market. The Tribunal accepts that his home town, in Ang Thong Province, approximately one hour from Bangkok, is experiencing a growth in tourism due to the presence of a temple and the largest statue in Thailand. The Tribunal also accepts and has placed weight on the applicant’s’ evidence that he ran a coffee shop in his home town from approximately 2008 to 2013 and has prior experience in running a food business.

3. At the hearing, the Tribunal discussed with the applicant information contained in his PRISMS records, indicating that he had cancelled his enrolment in his initial Certificates III and IV in Commercial cookery. The applicant told the Tribunal that he had enrolled in a Certificate III and a Certificate IV in Commercial Cookery in 2018, but had ultimately cancelled those courses as he was not satisfied with either the teaching methods or the course structure offered by that provider. He stated that he then enrolled in a further English language course and searched for, and found, a provider of commercial cookery and hospitality management courses that met his expectations.  He stated that there was some delay in finalising these arrangements as he had no personal contacts in Australia and he relied on his agent.  He is due to commence that study pathway upon finishing his English language course in September 2019. The Tribunal was prepared to accept these explanations and finds these to be a reasonable explanation for his study history in 2018. The Tribunal finds that the applicant is presently undertaking study and finds his future enrolments are consistent with progressing in his revised career pathway.

4. The Tribunal accepts the applicant’s evidence to the Tribunal that his immediate family, comprising his mother and four siblings, all live in Ang Thong Province.  He owns a house (and land) in the same province which he inherited from his deceased father. The Tribunal finds that these factors provide a strong incentive for him to return at the completion of his studies.

5. As to the applicant’s circumstances in Australia, the Tribunal accepts that his sister in Thailand is funding his studies in Australia and he works in accordance with his visa conditions as a kitchen hand and occasional cook to meet his living expenses. This did not raise any concerns in Tribunal's mind that the applicant is building a career in Australia. There is no evidence that the applicant has entered into any relationship of concern.

6. There is no evidence of any military service or civil or political incidents that would act as an incentive for the applicant to remain in Australia. There is no evidence before the Tribunal that the applicant has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation. The applicant’s immigration history does not raise concerns for the Tribunal. There is also no evidence before the Tribunal regarding the following factors indicated by Direction 69: whether the student visa programme is being used to circumvent the intentions of the migration programme; whether the Student visa is being used to maintain ongoing residence; the remuneration the applicant could expect to receive in Thailand or a third country compared with Australia using the qualifications to be gained from the proposed study.

7. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. It follows that the applicant meets cl.500.212(a).

8. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

9. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

DECISION

1. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

   · cl.500.212(a) of Schedule 2 to the Regulations.

Shahyar Roushan
Senior Member

Damian Creedon
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.

1. 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.

2. 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

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. 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

1. 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.

2. 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

1. 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

1. 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

1. An applicant’s immigration history refers both to their visa and travel history.

2. 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

1. 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

1. 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.