LOKA (Migration)

[2017] AATA 443

LOKA (Migration) [2017] AATA 443 (16 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nuttakorn Loka

CASE NUMBER:  1605832

DIBP REFERENCE(S):  BCC2015/3949512

MEMBER:John Cipolla

DATE:16 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 16 March 2017 at 8:55am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine temporary entrant – Change of studies from Higher Education Sector – English and diploma level courses – Proposed courses of no benefit to career – No plans for professional experience in Thailand

LEGISLATION

Migration Act 1958, ss 65, 499
Migration Regulation 1994, Schedule 1, Schedule 2 cl 572.223

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 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 to the Department of Immigration for the visa on 19 December 2015. The delegate decided to refuse to grant the visa on 8 April 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible highis degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because the delegate could not be satisfied that the applicant was intending to stay in Australia temporarily.

4. The applicant was granted a Subclass 573 Higher Education Sector visa on 28 February 2013. The visa was valid until 25 December 2015. The applicant arrived in Australia as the holder of the Subclass 573 visa on 21 March 2013. The applicant has not departed since that time.

5. Recourse to the delegate’s decision record indicates that the applicant initially completed an English language course between May and September 2013 and a further English language course between November and December 2013. He then enrolled in a Bachelor of Accounting degree course in November 2013 but did not continue in this course. The applicant then completed a Certificate II in Business between January and July 2014 and a Certificate III in Business Administration between July 2014 and April 2015. The evidence indicates that upon completion of the Certificate III in Business Administration the applicant has been engaged in a Certificate IV in Small Business. The evidence in the Departmental decision record indicates that the applicant has not studied at the Higher Education Sector but at the lower level Vocational Education and Training sector since he arrived in Australia.

6. The Departmental decision record indicates that the applicant completed a Bachelor of Law in Thailand in 2011. The decision record notes that the applicant ceased studying the Bachelor of Accounting degree in Australia because he quickly realised that his English language skills were not going to be suitable for that level of study. The applicant stated that the management courses that he had been studying were highly regarded in Thailand and would assist with future employment. The applicant claims that upon completion of studies in Australia he would return to Thailand to look after his parents. The delegate concluded that given the applicant’s lack of academic progress in Australia, his study history, his potential circumstances in Australia and his immigration history and the lack of value of the courses that he had studied so far in Australia, that the applicant was using the student visa program to circumvent permanent migration programmes and was not a genuine applicant for entry and stay as a student and did not intend to stay in Australia temporarily.

7. The Tribunal received a prehearing submission which it has duly considered this included a statement from the applicant along with an official transcript for a Bachelor of Laws that the applicant completed at Payap University in Thailand. The applicant also provided evidence of the courses that he had completed in Australia to date which have all been at Certificate level.  The applicant also provided the Tribunal with evidence of his current enrolment in the Diploma of Leadership and Management course which commenced on 9 January 2017 and is due to be completed on 6 January 2019. The applicant then intends to complete an Advanced Diploma of Leadership and Management that commences on 7 January 2019 and finishes on 3 January 2021.

8. The applicant appeared before the Tribunal on 15 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

9. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

12. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that 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 othis relevant matter; and

    (b)     …

13. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

14. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

15. At the outset of the hearing the Tribunal explained that it was conducting a review of the decision of the Department of Immigration to refuse the applicant is Subclass 572 student visa. The Tribunal noted the basis on which the delegate had refused the visa was because the delegate could not be satisfied that the applicant was intending to stay in Australia temporarily, having regard to the relevant considerations in Ministerial Direction 53.

16. The Tribunal noted that as part of the review it would be having regard to the information contained in the Departmental file, the evidence provided at review, including a submission received from the applicant’s representative on 14 March 2017. The Tribunal would also be having regard to the applicant’s evidence provided at the review hearing.

17. The applicant gave his name and date of birth. The Tribunal asked the applicant what year he completed high school in Thailand. The applicant struggled to answer this. The Tribunal asked the applicant how old he was when he completed high school and he advised 18. The Tribunal asked the applicant whether he engaged in post school education and he advised that he completed a Bachelor of Laws in Thailand. The Tribunal asked the applicant when he completed his Bachelor degree and he advised he thought it might have been around 2014 or 2015. The Tribunal asked the applicant whether he worked in Thailand after completing his degree. The applicant stated that he worked as an assistant to a lawyer for a short period of time in Chang Mai in Thailand for around 2 to 3 months.

18. The Tribunal asked the applicant why he only worked for a short period for the lawyer in Chang Mai. The applicant stated that it was not a big office, that there was not a big enough budget to continue to employ him. The Tribunal asked the applicant whether he tried to get another job in a legal practice after he finished in this position and he advised that he did not. The Tribunal asked the applicant why this was the case and the applicant stated that if he was to work in the legal industry he would like to own his office and the applicant stated that he sat an exam to obtain a lawyer’s ticket. The applicant stated that he thought that once he obtained a lawyer’s ticket he would be able to open an office in his home town. The applicant stated that during that period Thailand opened up a free market called the Thailand AAC. 

19. The applicant stated that it was his opinion that once the market was open that it would be desirable to have English language skills and that he believed that these skills would be beneficial to him so he decided to come to Australia to study English. The applicant stated that the basis on which he came to Australia was to better his English language skills.

20. The Tribunal noted that this suggested that the applicant did not get a lawyer’s ticket and did not open up his own legal practice in Thailand and that he decided to come to Australia to study English in this country. The applicant stated that was correct and that if in Thailand you have English knowledge from overseas it makes you more competitive.

21. The Tribunal asked the applicant what subclass of student visa was granted to him to come to Australia, noting that each subclass indicated the level of study that the applicant wanted to pursue in this country. The applicant stated that he was not sure what subclass of student visa he was granted. The Tribunal suggested that the applicant could check his passport but there was no visa label in the passport. The Tribunal noted that based on the evidence before it the applicant was issued with a Subclass 573 Higher Education Sector visa. The Tribunal noted that in order to study at a high level the Australian government required a visa applicant to provide evidence of English proficiency to satisfy the Department that they could participate in that level of study. The Tribunal wondered why the Australian government would grant the applicant a Subclass 573 visa if he did not have proficient English language skills. The applicant stated that his English language skills were not good. The applicant stated that when he arrived in Australia he did a general English course at a College in Sydney for 4 months and then a further 1 month English language course. The applicant was then enrolled to complete a Bachelor of Accounting. The Tribunal asked what University this course was at and the applicant stated that he could not remember. The Tribunal asked the applicant what date he came to Australia and he advised 2015, possibly 2014. The Tribunal then asked the applicant how long he had been in Australia and he advised about 3 years. The Tribunal suggested that if he arrived in 2015 and it was now 2017 that he would have arrived prior to 2015. The Tribunal noted that the evidence before it indicated that the applicant in fact arrived in Australia on 21 March 2013.

22. The Tribunal asked the applicant how long he spent at University studying a Bachelor of Accounting and the applicant stated that he never commenced this course of study and that he changed education providers. The Tribunal asked the applicant what course he changed to and he advised the Diploma of Management because his English was not good enough to undertake studies at the Bachelor level.

23. The Tribunal asked the applicant why he chose to study a Bachelor of Accounting in Australia. The applicant stated that when he consulted with his family back in Thailand it was decided that if he was to open a business he should learn how to manage accounting. The applicant stated that once he came to Australia to study that he asked his friends in Australia from overseas and consulted with an education agent about the course and concluded that accounting would not be suitable for opening a business and a management course would be more suitable. The applicant stated that in Thailand you can always employ an Accountant. The applicant decided that he thought that a management course would be appropriate if he was to open a business in the future. The applicant stated that he had learnt how to manage a small business and how to set goals and targets for the business.

24. The Tribunal noting that the applicant had completed a Bachelor of Laws degree in Thailand asked the applicant why it would be to his benefit to undertake courses at certificate and diploma level in business rather than returning to Thailand and getting work experience as a lawyer in that country. The applicant stated that the one main reason was that he wanted to study the English language here, and in order to open up a law business in Thailand, English would be useful.

25. The Tribunal noted that the applicant arrived in Australia in March 2013 not 2014 or 2015 as the applicant previously advised. The Tribunal noted the applicant’s recollection of dates appeared to be quite poor. The Tribunal noted that the Bachelor of Laws degree was completed in Thailand in 2011 not in 2014 or 2015. The Tribunal noted that the applicant was intending on studying further certificate and diploma courses in business that would run until January 2021. The Tribunal noted that by the time the applicant finished these proposed courses he would have been in Australia for almost 8 years. The Tribunal noted based on the evidence before it the applicant would return to Thailand with only 3 months legal experience. The Tribunal asked the applicant why it would not be in his best interest to return to Thailand, to obtain legal experience, and what the benefits of remaining in Australia for 8 years studying business courses at certificate and diploma level would be to his future career aspirations.

26. The applicant was invited to comment on this. The applicant stated that the reason that he came to Australia was to get a better command of English. The applicant stated that in terms of his career going forward that he would like an opportunity to continue to study in Australia which would assist him with his plans for the future. The applicant stated that law in Thailand changes all the time. The applicant stated that during the time that he was studying in Australia if there is an opportunity to get his lawyers ticket in Thailand he will take that opportunity.

27. The Tribunal asked the applicant whether he had returned to Thailand in the 4 years he had been in Australia and whether he had undertaken ar lawyer ticket examination in Thailand. The applicant stated that he had not returned to Thailand since arriving in Australia in March 2013 nor had he booked or undertaken an examination for a lawyers ticket in Thailand. The applicant stated that he did not have the budget to return to Thailand and pay for his courses of study in Australia.

28. The Tribunal asked the applicant whether he was self-funding his studies in Australia and whether his parents provided any support. The applicant stated that he was funding his studies through working at a Chef in a Thai restaurant in Como Sydney for 20 hours per week and that his parents did not provide any financial support to him.

29. The Tribunal noted that the applicant had worked in a Thai restaurant in Como for 20 hours per week and had been employed at this restaurant since 14 April 2013 as a Chef and Shift Manager earning $28,000 per year. The Tribunal asked the applicant whether he could earn this type of money in a similar position in Thailand, and the applicant stated that he did not know what chef’s wages were in Thailand. He advised it was more likely to be less. The Tribunal stated that it understood the average monthly salary in Thailand was the equivalent of AU$400 a month and the applicant stated that this sounded about right. The Tribunal asked the applicant whether he worked more than 20 hours per week when he was not studying and he advised he only work 20 hours per week. The applicant added that the only reason he did not return to Thailand was he did not have a visa. The Tribunal noted that it appeared that a student visa holder with a valid visa did not need a visa to travel to their home country.

30. The Tribunal asked the applicant why he had not returned to Thailand in 4 years. The applicant stated that in his first few years in Australia he did not have enough money to continue studying and that he also changed his study from English languages to certificates in business. The applicant stated after the student visa ran out and he had problems with the Department refusing the visa application and having to seek review with the Administrative Appeals Tribunal that he did not return to Thailand.

31. The Tribunal asked the applicant where he was residing and he advised in an apartment in the central business district of Sydney near Town Hall. The Tribunal asked how much rent he paid and he advised $175 per week. The Tribunal asked the applicant whether he lived with other people and he advised that he did. The Tribunal asked the applicant whether he sent money back to Thailand and he advised that he did not.

32. The Tribunal noting that it had received a four-page statutory declaration from the applicant the day before the hearing asked whether there was anything in addition to that statutory declaration or the evidence provided at hearing that he wanted to give the Tribunal and he advised that there was not.

33. The Tribunal asked the applicant whether he thought his English had improved in the 4 years he had been in Australia and he advised that he believed it had. The applicant stated that he can listen and understand but he cannot communicate very well. The applicant stated that he could not write very well and that is why he wanted to continue to study. The applicant stated that he believed that communicating in English will improve his English and that the courses will help with his life plan.

34. The Tribunal asked the applicant’s representative whether there was anything that he wanted to add and he advised that there was not. The hearing concluded.

35. The evidence before the Tribunal indicates that the applicant arrived in Australia as the holder of the Subclass 573 Higher Education Sector visa on 21 March 2013.  As discussed with the applicant at hearing this visa is to enable an applicant to study in Australia at a higher level such as Bachelor level. However the applicant has not engaged in any study at this level and has instead only engaged in courses at the Vocational Education Sector level (Subclass 572) courses which run at either certificate or diploma level.

1. The applicant upon arrival in Australia was enrolled to study in a Bachelor of Accounting degree at university level but the applicant never commenced these studies. The evidence before the Tribunal indicates that the applicant’s English language proficiency was such that he formed a view that he was not able to study at a Bachelor level in Australia and the applicant spent the first period of his student life in Australia undertaking English-language courses followed up with business courses at certificate level.

2. The evidence before the Tribunal indicates that the applicant has completed a Bachelor of Laws in Thailand, and thus in the view of the Tribunal whilst the study of English may be of benefit to the applicant in the future the study of a number of business course at certificate level appears to be a retrograde step. The evidence indicates that upon graduation the applicant only worked for 2 to 3 months as a lawyer in Thailand and thus he has very little post graduate work experience in his chosen field. The applicant has obtained no further legal experience since graduating from his undergraduate course in 2011.

3. Based on the evidence before it the applicant has undertaken a range of certificate courses in the field of business in Australia. The evidence indicates that the applicant is proposing to remain in Australia to study further courses in business at Diploma and Advanced Diploma level. As noted these courses commenced in January 2017 and are due to be completed in January 2021 thus running for a period of 4 years.  Upon completion of these courses the applicant would have attained no qualification at Bachelor level or above and the applicant will have been in Australia at that point as a student for a period of in excess of 8 years.

4. The Tribunal finds that the applicant’s courses of study in Australia at certificate and diploma level do not have a direct correlation to his undergraduate studies. As noted the applicant has only up to 3 months post graduate experience working as a lawyer in Thailand.  The Tribunal finds that if the applicant remains in Australia until 2021 that in the 10 years since he graduated from law he will have only obtained 2-3 months relevant legal experience which in the view of the Tribunal would make him less competitive than his peers who have gained significantly more post graduate experience.

5. The evidence before the Tribunal indicates that the applicant has been working in Australia on a continuous basis since April 2013, the month after he arrived in Australia, as a Chef and Shift Manager for a Thai restaurant in Como. The applicant confirmed that he works 20 hours per week for this business and confirmed that the salary that he receives in this business is higher than a salary that he would receive in Thailand. The applicant advised the Tribunal that he is not deriving any support from his family in Thailand but is self-funding his studies and thus his need to work. The Tribunal notes that the student visa programme envisages that overseas students will derive support from sources in their home country so as they can focus on their study and not work in excess of the hours allowed to as a student visa holder. This has not transpired in the applicant’s case.

6. The applicant advised the Tribunal at hearing that his English language has improved gradually since he first arrived in Australia 4 years ago but he is still having problems communicating and would like to remain in Australia for a further period of time to improve his English language skills. The applicant claims that his English language skills will assist him with his future career plans upon returning to Thailand. The Tribunal notes that the applicant has had 4 years to improve his English since he initially arrived in Australia.

7. The Tribunal finds that the relatively inexpensive courses at certificate and diploma level that the applicant has been engaging in have been used as a mechanism to prolong the his stay in Australia. The Tribunal finds that the applicant’s primary motivation for remaining in Australia is economic and this is corroborated by the fact that the applicant has been working consistently since April 2013 a month after he arrived in the country. The evidence before the Tribunal indicates that the applicant has made little progress with his English language skills in the 4 years that he has been in Australia and this was evidenced by the applicant’s reliance on the Thai interpreter for the duration of the review hearing and his reluctance to engage in English.

8. Having regard to the applicant’s circumstances in his own country, the fact that he has an undergraduate degree in law, the fact that he has obtained no meaningful legal experience since graduation apart from 2 to 3 months working for a lawyer in Chang Mai the Tribunal finds that the courses that have been undertaken by the applicant in Australia will not enhance his future career aspirations as a lawyer in Thailand. The applicant stated during the hearing that he hopes to open up his own law practice and to obtain a lawyers ticket in Thailand.  The Tribunal finds that the courses undertaken and proposed in Australia will not facilitate this ambition and that the longer the applicant fails to obtain legal experience in Thailand, the harder it will be for him to establish a legal career in that country.  The Tribunal accordingly finds that the proposed courses of study and courses undertaken will be of no value to the applicant despite his stated ambition to establish his own legal business.

9. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

10. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    John Cipolla
    Senior Member