Likitsathapornphong (Migration)

[2020] AATA 4363

Likitsathapornphong (Migration) [2020] AATA 4363 (18 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Jutaporn Likitsathapornphong
Mr Suwan Phanwilai

CASE NUMBER:  1724096

HOME AFFAIRS REFERENCE(S):          BCC2017/2841689

MEMBER:Gabrielle Cullen

DATE:18 August 2020

PLACE OF DECISION:  Sydney

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

The Tribunal does not have jurisdiction in the matter regarding the second named applicant.

Statement made on 18 August 2020 at 9:40am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – gap in studies – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212; r 1.03

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 19 September 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 August 2017. 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.

3. A Confirmation of Enrolment (COE) attached to the current application of 9 August 2017 referred to the applicant studying a Diploma of Leadership and Management from 10 July 2017 to 7 July 2019. The evidence indicates, as raised with the applicant in the s.359A letter of 24 July 2020 that she ceased studying this course on 30 October 2017.

4. To the Department she also provided a statement addressing the genuine temporary entrant criteria, evidence as to financial capacity, evidence she completed a Bachelor of Arts (Journalism) in Thailand in 2004, identity documents and evidence of health insurance.

5. On 19 September 2017 the delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that she is not a genuine applicant for entry and stay as a student. The delegate was concerned that she had only studied at the vocational level, her length of time in Australia and that she had not provided an accurate reflection of her future intentions.

6. On 5 October 2017 the applicant lodged an appeal to the Tribunal and attached the decision of the Department as well as evidence of past courses completed.

7. On 5 April 2019 the Tribunal wrote to the applicant a s.359(2) letter as follows.

   As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

   ·enrolled in a registered course of study; and

   ·a genuine applicant for entry and stay as a student.

   Accordingly, you are now invited to give, in writing, information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the ‘Request for Student Visa Information’ form which you can access by clicking on the link below.

8. The applicant was also provided with information as to how to access a printable copy of this form if they wished to return a hard copy. The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.

9. On 21 April 2019 the applicant submitted a completed ‘MRD Student Visa Information Form’, and provided an additional statement addressing the genuine temporary entrant criteria. She indicated she was currently enrolled in the Diploma of Leadership and Management from July 2017 to July 2019.

10. On 23 May 2019 the Tribunal wrote to the applicant and invited her to attend a hearing on 19 June 2019. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal will assess whether she intends genuinely to stay in Australia temporarily as required by clause 500.212(a) and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

11. The applicant appeared before the Tribunal (differently constituted) on 19 June 2019 to give evidence and present arguments. Her representative did not attend the hearing. She was assisted with an interpreter in the Thai and English languages. She confirmed her enrolment in the above-mentioned financial planning courses and information was provided addressing the genuine temporary entrant criteria. She indicated she was no longer enrolled in the Diploma of Leadership and Management. She said when the Department refused her visa she did not know when the Tribunal was going to hear her case, so she did not want to enrol and waste her money. She said she ceased studying in September 2017.

12. On 3 June 2020, the applicant was advised by the Tribunal that the previous Member who was reviewing the case is no longer available and that the matter had been reconstituted to a different member. The applicant was advised that all documents and other material that were considered by the previous Member have been given to the current member, including material from the Department; recordings of any hearings and any submissions or other evidence provided to the Tribunal.

13. On 1 July 2020 the applicant was invited to attend a hearing on 17 August 2020. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal may assess whether she intends genuinely to stay in Australia temporarily, which was the reason for the delegate’s decision and referred to and attached Direction 69. The letter also noted that the Tribunal may assess whether the applicant is enrolled in a registered course of study and that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review.

14. On 24 July 2020 the Tribunal sent the following s.359A letter to the applicant:

    You are invited to comment on/respond to information that the Tribunal considers would, subject to any comments/response you make, be the reason, or a part of the reason, for affirming the decision that is under review.

    
    
    

    The particulars of the information are:

    ·You applied for a Student visa on 9 August 2017 and attached a Confirmation of Enrolment to study a Diploma of Leadership and Management from 10 July 2017 to 7 September 2019.

    ·Information from the Australian Government’s PRISMS record system, which records Confirmation of Enrolments and start and end dates of each course you were enrolled in, indicates that you are not currently enrolled in a registered course of study and that enrolment in the Diploma of Leadership and Management ceased on 30 August 2017 when you notified cessation of studies.

    This information is relevant because one of the criteria for the visa for which you have applied, regulation 500.211 provides that at the time of this decision you are enrolled in a course of study: cl.500.211(a). You have not claimed to meet any of the alternative criteria in cl.500.211.

    ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

    The evidence from the PRISMS record indicates that you do not meet this requirement as you are not currently enrolled in a course of study.

    If the Tribunal is not satisfied that you meet this requirement, the Tribunal may find that you do not meet cl. 500.211. You may then not be entitled to be granted a Student visa for which you have applied.

    You are invited to give comments/respond to the above information in writing

15. The applicant was given until 17 August 2020 to comment or respond to the information.

16. On 30 July 2020 the applicant submitted an email containing a withdrawal form for the second named applicant.

17. On 7 August 2020 in a written submission she explained why she was not enrolled. She said she did not know how long the Tribunal case would take and did not want to waste her money. She referred to the hearing in June 2019 and indicated she was awaiting the outcome of her case and then Covid 19 broke out and she believes it is now the time to do further study. She said besides leadership and management she would like to study a commercial cookery course as she has seen the opportunity in the pandemic as a food supplier, and she thought she may open a small restaurant and deliver food. She submitted that it would be more reputable if she had a certificate in cookery plus, she has work experience, having worked in the field in Australia. She outlined why she wishes to study in Australia and apologised for suspending her course.

18. The applicant appeared before the Tribunal on 17 August 2020 to give evidence and present arguments. The applicant’s representative did not attend the hearing. She was assisted with an interpreter in the Thai and English languages.

19. The Tribunal referred to the s.359A letter dated 9 July 2020 and noted that an issue before the Tribunal is whether she meets the enrolment criteria in s.500.211. It outlined the requirements of cl. 500.211. The Tribunal noted that another issue before it is whether she meets the genuine temporary entrant criteria as per cl.500.212. It outlined these requirements and Direction 69.

20. The applicant confirmed she was not currently enrolled and said she ceased enrolment as she was not sure when the Tribunal hearing would be held and did not want to waster her money. She said it was a misunderstanding and after the 2019 hearing she realised it was a mistake and she should have studied. She said she told the previous member at the hearing in 2019 that if she studies, she will study commercial cookery. She said it would be good for her to study and it will support her career on return to Thailand, assist her to learn English and gain knowledge about food. She said due to Covid19 it is difficult to depart so she requests a favourable decision so she can study.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. 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 before the delegate was whether the applicant met the criterion in cl.500.212, however as raised with the applicant another matter before the Tribunal is whether she meets cl.500.211.

22. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

23. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

24. The Tribunal raised with the applicant at hearing the requirement of enrolment for the grant of a student visa and referred to cl. 500.211 in writing on a number of occasions including in the recent s.359A letter.

25. The evidence as to enrolment submitted to the Department and the Tribunal indicates the applicant was initially enrolled in a Diploma of Leadership and Management from 10 July 2017 to 7 September 2019. However, current information obtained from the PRISMS record, raised with the applicant via s.359A in the Tribunal’s letter dated 24 July 2020, indicates she is not currently enrolled in a course of study and ceased enrolment in this course on 24 August 2017. When the issue was raised at hearing on 17 August 2020 the applicant confirmed she is not currently enrolled in a course of study. Despite being granted time to respond or comment on the information outlined in the s.359A letter and the issue being raised at the hearing on 6 August 2020, no evidence of current enrolment in a course of study has been received from the applicant as at the time of this decision.

26. In making this decision the Tribunal has considered all the applicant’s reasons for non-enrolment including that she did not know when the Tribunal hearing would be and did not want to waster her money as well as the current Covid19 situation and her wish to  study cookery while she cannot deaprt and its benefit to her future.

27. Therefore, on the evidence before it, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

28. 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.

29. With regard to the second named applicant, the Tribunal is satisfied from the circumstances set out above that his application for review has been withdrawn. Accordingly, the Tribunal finds that it no longer has a valid application before it. Therefore, the Tribunal has no jurisdiction to review the delegate's decision with regard to the second named applicant.

    DECISION

30. The Tribunal affirms the decisions not to grant the first named applicant a Student (Temporary) (Class TU) visa.

31. The Tribunal does not have jurisdiction in the matter regarding the second named applicant.

    Gabrielle Cullen
    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;

    dwhether 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.