Krachangchuwong (Migration)

Krachangchuwong (Migration) [2022] AATA 420 (1 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Warodom Krachangchuwong
Miss Thitiphon Malat
CASE NUMBER:  2005039
HOME AFFAIRS REFERENCE(S):          BCC2019/6766429
MEMBER:Warren Stooke AM
DATE:1 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 1 March 2022 at 11:29am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa and study history – academic progression – multiple vocational courses in different subject areas despite previous degree in home country and higher education visa – long stay and no return to home country – prevalence of COVID-19 – no evidence of future business plans – member of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule, 500.212(a)
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 11 March 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 19 December 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 spent the last six years residing in Australia as the holder of temporary visas with limited time spent outside Australia raises significant concerns that the applicant is attempting to utilise the Student visa program as a means of maintaining ongoing residence in Australia and is not a genuine temporary entrant and has spent the majority of time in Australia studying course in the Vocational sector and has not progressed beyond despite previously completing a Bachelor degree in his home country.
The applicants appeared before the Tribunal on 25 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence of Miss Malat, the secondary applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicant stated that he understood the visa application was refused because he did not return to Thailand for a long time.
The applicant was assisted in relation to the review by his registered migration agent.
The applicant provided the Tribunal with a copy of the delegate’s decision with his application for review.
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 Tribunal asked the applicant: Do you understand that to be that to be granted a Temporary Student Visa, it is a requirement that you satisfy the Minister that you are a genuine temporary entrant for stay as a student? The applicant responded: “Yes, I do”.
The applicant is a 35 year old from Thailand, who confirmed in evidence that he arrived in Australia on 7 November 2013 after the grant of a 573 Student visa.
The applicant was granted a Bridging Visa A on 19 December 2019 that has condition 8105 and became effective on 27 December 2019 after the cessation of his then current Student Visa.
The applicant provided evidence that he has health insurance with Bupa that is valid from 16 March 2020 to 15 October 2022.
The applicant provided evidence that he completed a Bachelor of Political Science at Ramkohamhaeng University in Thailand from 20 June 2006 to 26 March 2009.
The applicant provided evidence that he has a confirmation of enrolment to study an Advanced Diploma of Hospitality Management from 19 February 2021 to 5 August 2022.
The applicant provided evidence that he has completed the following courses of study in Australia:
a.English for Academic Study (24 weeks) – Pre-Intermediate from 2 December 2013 to 2 June 2014;
b.English at Lloyds International College from 4 August 2014 to 12 October 2014;
c.Certificate IV in Business at Lloyds International College completed on 16 February 2016;
d.Diploma of Leadership and Management at The Wales Institute and awarded 31 October 2017;
e.Certificate IV in HR awarded 20 November 2017;
f.Diploma of HR at the Wales Institute awarded 11 January 2019;
g.Advanced Diploma of HR at the Wales Institute and awarded 29 October 2019;
h.Certificate IV in Commercial Cookery at SBTA from 2 December 2019 to 25 June 2021.
The applicant stated in his response to the Tribunal’s s359(2) request for information the following purpose of his current study:
“I choose to study this particular course in Australia because Australia is an international melting pot of language, culture and cuisine.
The gastronomic makeup of Sydney is unique, where a variety of influences define the regional cuisine. Though the population is largely of European descent, there are pockets of Asian and other ethnic groups represented that bring Sydney’s most cosmopolitan.
Therefore, after completing this program from Australia, I look forward to come back to my hometown and contribute into the blooming food and hospitality industry. Being graduated from internationally recognised institute will play an important part in achieve my goals in the industry. Additional, my education background include business is benefit to my education and work as a cuisine owner as definitely show my personal tie to return home.
My purpose of study serial course because of my beloved cooking and I dream to have my own cuisine in my hometown then I need a combination of technical culinary prowess, communication skills and hospitality business acumen to be a successful in my future career.”
The applicant provided evidence that he travelled to New Zealand in June 2019 for 7 days and has not returned to his home country since arriving in Australia in November 2013.
The applicant stated that the last time he saw his parents was on 6 November 2013 and that he has two sibling sisters and the following parents in Thailand:
Mr.Chamroen Krachangchuwong - Parent Thailand
Mrs. Monsicha Phokjaratsunthon - Parent Thailand
The applicant stated that he lives in Lidcombe, Sydney in a share-house and pays $250 per week in rent.
The applicant stated that his partner, Ms Malat, is working as a cleaner and is paid $500 per week and that he has been employed by J and Hoon Pty Ltd as a Chef from December 2019. The restaurant is at Olympic Park.
The Tribunal asked the applicant if he was studying Hospitality because he wants PR and the applicant responded: “No I didn’t”.
The applicant provided evidence that he has no personal property in Thailand.
The Tribunal asked the applicant if there was any reason that would preclude the applicant from returning to Thailand and he stated: “It is because of covid situation. I was planning to go back to Thailand and open a restaurant”.
The Tribunal asked the applicant if he has a business plan and he responded: “Not yet”.
The Tribunal asked the applicant if it was his motivation to remain in Australia permanently and he responded: “No I don’t plan to stay in Australia permanently”.
The Tribunal asked the applicant why he had been in Australia for 8 years without returning home and he responded: “I got problem. Depends on my education and holiday time does not agree”.
The Tribunal asked the applicant if he would have any difficulty in assimilating into Thai society and he stated: “No I don’t expect any problem”.
Evidence - Miss Thitiphon Malat
The witness stated: “I would like to say that I am not his formal wife”.
The Tribunal asked if the witness was a dependent and she responded: “Yes”.
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 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 has been in Australia since 7 November 2013 and arrived to undertake studies following the grant of a 573 Student visa. During the period of residency of more than 8 years the applicant has undertaken numerous courses at the certificate and diploma level and has never undertaken a course in the Higher Education sector, which was the visa first granted to the applicant. The failure to demonstrate academic progression is particularly relevant given that the applicant held a Bachelor degree from a university in Thailand before entry to Australia;
b.Whilst the Tribunal acknowledges that an applicant can change streams of courses of study to prepare them for a future career, the applicant in this case has transitioned from business, to management, to Human Resource Management and now Commercial Cookery and Hospitality, where it is evident to the Tribunal that the applicant has pursued courses in the low cost and short duration VET sector where credits for previous studies provides a reduced obligation for face to face learning. As such, the Tribunal has serious concerns that the applicant is using the student visa scheme to maintain residency and lifestyle rather than for any concrete career purpose. In this regard, the applicant claimed that he wanted to open a restaurant in Thailand but provided evidence he has no business plan to effect such a desire;
c.The Tribunal finds that the applicant has been resident in Australia since 7 November 2013, except for a 7 day holiday to New Zealand, and has not returned to his home country in more than eight years of residency. He also provided evidence that he has no personal property in Thailand. As such, the Tribunal finds that the ties to Australian residency, especially with his de facto partner living in Australia, are stronger than the ties to his own country. This is not the behaviour that would be expected of a genuine temporary entrant;
d.The Tribunal finds that the applicant, whilst continuing to engage in studies during his residency in Australia, has been using the temporary student visa stream to maintain residency and lifestyle rather than through alternative visa streams that are available for that purpose.
The Tribunal gives weight to the lack of strong ties to the applicant’s home country and is satisfied that the purpose of study has been to maintain residency through participation in the low cost VET sector.
Further, there is evidence before the Tribunal that would suggest that the applicant has any no valid reason for not returning to Thailand and that the applicant has developed a desire to remain in Australia for the purposes of residency and the lifestyle and potentially other undisclosed purposes.
Based on what is evidenced of the applicant’s circumstances overall, in the absence of any other relevant information, including his immigration and study history, his 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 enter 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 met the requirements for the grant of a Student 500 visa, it follows that the secondary applicant is not a member of a family unit that has met the requirements for the grant of a temporary resident 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.

[2022] AATA 420

1 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction