Lerspiphopporn (Migration)

[2022] AATA 3335

Lerspiphopporn (Migration) [2022] AATA 3335 (19 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thongchai Lerspiphopporn

CASE NUMBER:  2206396

HOME AFFAIRS REFERENCE:               BCC2020/2084145

MEMBER:L. Symons

DATE:19 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 19 August 2022 at 5:21pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – COVID-19 pandemic travel restrictions – applicant awaited registered chartered flight home to Thailand – studies completed – plans to travel around Australia – No Work condition – delayed departure – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 601.222, 600.611

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 on 13 April 2022 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied to the Department of Immigration (the Department) for the visa on 13 August 2020. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case, the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the applicant to satisfy the Minister that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 600.211 because he was not satisfied that he genuinely intends staying temporarily in Australia for the purpose for which the visa is granted. On 1 May 2022, the applicant applied to the Tribunal for a review of that decision.  

5. The applicant appeared before the Tribunal, via video, on 16 August 2022 to give evidence and present arguments. 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 AND FINDINGS

7. The issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

8. In the present case, the applicant seeks the visa because he was not able to leave Australia due to the COVID-19 pandemic, he was registered for a chartered flight to his home country, as organised by the Thai embassy, but is yet to receive a response and thus plans to travel around Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

9. In considering whether the applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent Bridging visa (cl 600.211(a)).

10. The evidence before the Tribunal indicates that the last substantive visa held by the applicant was a subclass 600 Visitor visa that was valid until 17 August 2020. There is no evidence before the Tribunal to indicate that he has not complied substantially with the conditions of that visa. The applicant currently holds a Bridging A visa that was granted on 13 August 2020 and is subject to condition 8105 (not engage in work in Australia before study commences). There is insufficient evidence before the Tribunal to make a finding that he has not complied with this condition.

11. The Tribunal must also consider whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

    ·8503 – not entitled to a substantive visa, other than a Protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

12. In considering whether the applicant intends to comply with the visa conditions, the Tribunal discussed with him his personal circumstances, financial circumstances and the proposed purpose and arrangements for his visit to Australia. He gave evidence that his parents, older brother and younger sister live in Bangkok, Thailand. He has no family in Australia. He is single and has friends in Australia. He first came to Australia in 2016 on a Visitor visa to visit a friend, who owns a Thai restaurant in Australia, and to make inquiries about educational opportunities here. On his return to Thailand, he applied for a Student visa and returned to Australia in April 2017 as the holder of a Student visa.

13. The applicant gave evidence that he initially studied an English language course. He then applied for and was granted another Student visa that was valid from October 2017 to September 2020. He undertook a Diploma of Marketing and Communication and an Advanced Diploma of Marketing and Communication. He completed his studies in July 2020. He then planned to study a Master’s degree but was required to pass an IELTS test at academic level but was unable to do so. During the periods of lockdown, as a result of the Covid-19 pandemic, he had severe mental health problems and did nothing. He missed his family and could not return to Thailand.

14. The applicant stated that since the lockdowns ended, he has tried to organise his life. He has been preparing for an IELTS test by studying English online. The IELTS preparation course at university costs a lot of money so he has been learning by himself on the internet and reading IELTS preparation books. He has also been looking for a Master’s degree course in Art as that is his area of interest.

15. The applicant stated that when he first came to Australia on a Student visa, he worked at his friend’s restaurant for about a month. He then worked as a waiter at a café for about 12 to 18 months. He realised that this type of work did not suit his personality, so he stopped working in hospitality and concentrated on his studies. He also worked online as a freelance graphic designer for customers in Thailand. This was a job he started after he completed his Bachelor’s degree in Thailand and he has continued doing this work whilst living in Australia. He has been doing this work for 8 years now and still does so occasionally. His customers pay him by cheque or transfer money to his bank account in Thailand.

16. The Tribunal asked the applicant about his current source/s of income. He responded the money from his job and his savings in Bangkok. When asked about his assets and liabilities, he responded that he has AUD$50,000.00 in his bank account in Thailand and $5,000.00 in his bank account in Australia. He has no debts. He is able to support himself in Australia including paying for his travel in Australia.

17. The applicant provided the Department and the Tribunal with travel itineraries for Queensland (16 days), New South Wales (15 days), Tasmania (9 days) and Western Australia (12 days). These itineraries consisted of lists of places of interest in these States with no details in relation to accommodation, transport, travel dates or reservations. The Tribunal asked him how much his travel would cost. He responded maybe $3,000.00 or $4,000.00. When asked who would pay for his travel, he responded that he would.

18. The applicant gave evidence that he is not planning to work if granted a Visitor visa. When asked whether he is planning to study or do any training, he responded no, he did not think so. His intention is to return to Australia for the next academic year to study a Master’s degree. In the meantime, he will return to Thailand and study hard for an IELTS test. When asked whether he was planning to study for the IELTS test and do the IELTS test (in Australia) if granted a Visitor visa, he responded that if he is granted a Visitor visa for 3 months it is insufficient time to study for an IELTS test. If he is granted a 6-month visa, that would give him sufficient time to study for an IELTS test here. His plan is to return to Thailand to study for an IELTS test.

19. The applicant made an application to the Tribunal on 3 May 2022 for a reduction of the filing fee in relation to his application for review. In the Request for Fee Reduction form, he set out his financial circumstances. He stated that he had one bank account, being a Commonwealth Bank account, with a balance of $2,685.29. He stated that he has no other investments or money owing to him. He stated that he does not receive financial support from a partner, relative or friend and will only receive a little support from his family in an emergency. He did not disclose any source of income. He stated that his expenses are $1,155.00 per fortnight.

20. The applicant provided the Tribunal with a Trust Account receipt which showed that the sum of $1,130.00 was being held at Mint Property Management on his behalf. He also provided a Commonwealth Bank statement in the sum of $2,685.29. He provided a ‘Personal Clarifying Statement’ dated 4 May 2022 explaining that the sum of $4,353.82 was transferred into his bank account by his family on 23 April 2022 to pay for his living expenses and filing fees at the Tribunal.

21. The applicant provided the Tribunal with a ‘Personal Clarifying Statement’ dated 5 May 2022 in which he stated that certain sums of money deposited into his bank account was from his ex-boyfriend from whom he borrowed money. He also stated that his family were unable to pay for his filing fee at the Tribunal because they suffered severe financial hardship as a result of the Covid-19 pandemic and their situation has not returned to normal. He needs the $4,353.82 they sent him to pay for his rent, bills, food and other living expenses until he can get a Student visa, a job and earn money. 

22. The Tribunal raised as an issue with the applicant his financial circumstances as claimed in his Request for a Fee Reduction form and the supporting documents he provided the Tribunal and noted that they indicate that his financial circumstances are not good and he needs to work to support himself. The Tribunal also noted his evidence that he has been working as a graphic designer since he graduated with his Bachelor’s degree in Thailand and the fact that a Visitor visa will be subject to condition 8101 (No Work) and raised as an issue its concerns that he will not be able to support his stay in Australia without working in breach of a visa condition.

23. The applicant responded that at the time he applied for a reduction of the filing fee at the Tribunal he borrowed money from his ex-boyfriend. He did not borrow the money because he was in need of money. It was something his ex- boyfriend gave him because of love and affection and not because he needed the money. He has enough money to travel in Australia. His family’s business is getting better and he can ask them to help him. He has savings in Thailand.

24. In his Request for a Fee Reduction form the applicant did not disclose his income from his work as a freelance graphic designer or his savings of AUD$50,000.00 in his bank account in Thailand. The Tribunal raised as an issue with him the fact that his evidence to the Tribunal was not consistent with his Request for a Fee Reduction form and its concerns in relation to his credibility. He responded that he did not mention those things because he did not think it was very important, it was personal and he did not think he needed to mention his assets or his money. When asked whether he thought it was important to give evidence to the Tribunal that was truthful and accurate, he responded that the money was in Thailand and beyond Australia’s borders. His response exacerbates the Tribunal’s concerns in relation to his credibility and his intentions.  

25. The Tribunal has considered other relevant matters including the applicant’s immigration history in Australia. The records of the Dept indicate that he first arrived in Australia on 25 August 2016 on a subclass 600 Visitor visa that was valid for 3 months. He departed Australia on 10 September 2016. He returned to Australia on 8 March 2017 on a Student visa that was valid until 1 October 2017. He was subsequently granted another subclass 500 Student visa on 28 September 2017 which was valid until 17 August 2020. On 13 August 2020, he was granted a Bridging A visa that was subject to condition 8105.

26. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that his evidence is that he completed his studies in July 2020 and wanted to undertake a Master’s degree but did not satisfy the English language requirements. The Tribunal noted that he thereafter had no reason to remain in Australia. The Tribunal noted that his immigration history may lead it to the conclusion that he applied for the Visitor visa to maintain ongoing residence in Australia.

27. The applicant responded that during the Covid-19 pandemic he could not apply for any other type of visa. He did not have a migration agent. He applied for a Visitor visa because he thought it would enable him to stay in Australia legally.

28. The travel itineraries that the applicant provided to the Tribunal for travel in Queensland, New South Wales, Tasmania and Western Australia appear to be lists of places of interest in these States rather than planned travel itineraries including details of transport, accommodation, travel dates or reservations. The Tribunal is not satisfied that the applicant has the financial resources or the intention of undertaking this travel. He has not provided the Tribunal with any evidence that he has the equivalent of AUD$50,000.00 in his bank account in Thailand. The Tribunal is of the view that if he did so, he would not need to borrow money from his family to pay for his living expenses in Australia.

29. The Tribunal raised as an issue with the applicant its concern that he does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted and that he is seeking to use his application for a Visitor visa to maintain ongoing residence in Australia. He responded that he does not have any other reason to stay in Australia especially after the Covid-19 pandemic which made him feel homesick and suffer from a severe mental health problem. He does not have any reason to stay here other than to study. He does not need to work and his personality does not suit hospitality work. If he gets a Visitor visa for 3 months, he will not waste that time working or doing something that does not make sense.

30. The applicant repeated that a visa refusal would not be good for his travel history and he does not want a black mark against his name. It could impact on him if he wishes to apply for another visa for Australia or for another country. He is ready to go home at any time. He misses his family and does not have any reason to stay in Australia.

31. The Tribunal accepts that the applicant could not return to Thailand during the height of the Covid-19 pandemic when international borders were closed. However, Australia’s international border has been open since February 2022. If he misses his family, is ready to go home at any time and does not have any reason to be in Australia other than to study as he claims, the Tribunal expects that he would have returned to Thailand as soon as international borders opened. He would still have been able to prosecute his application for review and to attend a video or telephone hearing from Thailand.

32. As the applicant does not have a Student visa and has not applied for a Student visa, he will not be able to undertake a Master’s degree by remaining in Australia. He will need to return to Thailand to apply for a Student visa. A pre-requisite to enrol in a Master’s degree is for him to obtain the necessary results in an IELTS test before he can apply for enrolment in a Master’s degree. His evidence is that he will be able to study for and to undertake an IELTS test in Thailand. His conduct in remaining in Australia is not consistent with his evidence that he does not have any reason to be in Australia other than to study.

33. Having considered all the evidence, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and finds that the requirements of cl 600.211 are not met.

    DECISION

34. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    L. Symons
    Member