Lueangamnuaysiri (Migration)

Lueangamnuaysiri (Migration) [2020] AATA 4718 (11 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Morakot Lueangamnuaysiri
CASE NUMBER:  1912930
HOME AFFAIRS REFERENCE(S):          BCC2019/1145985
MEMBER:Stephen Witts
DATE:11 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 11 November 2020 at 9:16am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, travel, study and work history – length of residence with no visit home – family members, friends and community ties – value of course to applicant’s future – reasons for studying in Australia rather than home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 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 6 May 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 7 March 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.
The applicant appeared before the Tribunal on 10 November 2020 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicant was assisted in relation to the review by their registered migration agent.
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 genuinely intends to stay in Australia temporarily.
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.
At the hearing the Tribunal had a discussion with the applicant regarding the considerations outlined in Ministerial Direction 69.
According to the delegate’s decision record dated 6 May 2019 provided to the Tribunal by the applicant, the applicant’s application for a student visa was refused because the delegate was not satisfied that the applicant was a genuine temporary entrant. According to the delegate the applicant has been in Australia since 2012 on various visas including student visas, a temporary skill graduate work VC 485 visa and associated bridging visas and that the applicant’s time here in Australia and their circumstances of their stay and study here in Australia demonstrates that the applicant is seeking to use the student visa program to circumvent the migration program.
The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.
In particular the Tribunal has considered the applicant’s response to a request for student visa information under s.359(2) of the Act. In this response the applicant stated that she first arrived in Australia from her home country of Thailand in April 2012. She stated that she has not, as at the date of the delegate’s decision, returned back to her home country. She stated that she has visited Singapore and Hong Kong for a few days in 2011. She stated that she has been on a mixture of visas including 573, 572 visas. She stated that she has been on student visas since her arrival here until March 2017, and from March 2017 until April 2019 she was on a 485 visa. She stated that she worked as a registered nurse from 1999 until April 2012 in her home country earning up to the equivalent of AU$24,000 per annum.
She stated that she is currently enrolled in a Graduate Diploma of Management (Learning) which began in May 2020 and is due for completion in May 2021.
She stated that prior to this she has had the following enrolments:
1)a general English course from May 2012 until July 2012 which was completed
2)another English course from July 2012 until October 2012 which was completed
3)a Bachelor of Business from November 2012 which was not completed
4)another English language course from December 2012 until May 2013 which was completed
5)another English language course from August 2013 until October 2013 which was completed
6)a Certificate III in Aged Care from October 2013 which was not completed
7)another English language course from November 2013 which was completed in December 2013
8)a Bachelor of Nursing from February 2014 which was not completed
9)another English language course from March 2014 which was completed in December 2015
10)another English language course from October 2014 which was completed
11)a Bachelor of Nursing from January 2015 completed in December 2016
12)a Graduate Diploma of Management from April 2019 which was not completed
In regard to her current enrolment she stated that “after careful research about the course units and outcomes, I have decided to study this course as this course will help me achieve the corporate goals. With the practical skills I gain from Albright Institute, I will be able to apply the knowledge that I have gained to a range of careers in terms of business and leadership. I have a strong desire to establish my own business where I will be responsible to manage the workplace as well. I can foresee my vision of establishing an organisation with the people involved in my organisation are monitored, guided and supported timely and in organised manner. In the current scenario where lots of business organisations and firms are being established, I want to be equipped with the qualities of effective planning, organising, implementing and monitoring workloads including effective communication skills and learning to support team to achieve organisational goal”.
She stated that she chose Australia to study because of its friendly laid-back nature and excellent education system.
She stated that she has worked since April 2012 until April 2020 as a massage therapist earning AU$20,000 per annum.
She stated that her living expenses in Australia are AU$21,120 per annum.
She stated that she has a sister and a niece in Australia, and she has her parents and another sister in Thailand that she saw last in April 2012.
She stated that she talks to her family regularly via social media usually once a week.
She stated that she has community ties here in Australia with the local temple and also has close friends and family here in Australia.
In regard to her future plans she says she would like to be a registered nurse back in her home country.
She stated that she did not have any concerns about military service commitments or political or civil unrest issues in her home country that would stop her returning.
The Tribunal has also considered a submission provided by the applicant prior to the hearing from the applicant’s representative dated 31 October 2020 where it was stated that the applicant is in regular contact with her parents and that she is emotionally and financially dependent on her family. It was stated that she has a sister here in Australia and a niece, and that they share daily life and many celebrations together. It was also stated that she has bank accounts back in her home country and that she completed high level qualifications in nursing in Thailand at Bachelor’s and Master’s level, and has also studied in aged care at certificate level and has a Bachelor of Nursing gained in Australia. It was stated that she has worked for 10 years of clinical nurse in Thailand and has worked as a massage therapist here in Australia. It was stated that she now wants to work internationally but that she needs to improve her position in a country like Australia, which would include improving her English. It was stated that she has since chosen to do one more course that is a Graduate Diploma of Leadership and Management and that she chose this because Australia is an excellent place to study as it is friendly and has an excellent education system and that she enjoys spending lots of time with her sister and niece and shares the same accommodation. It was stated that she shares a warm relationship with Thai community friends and that they travel locally in Australia. It was stated that her current enrolment in leadership and management will assist her in working as part of a team and as a project manager. It was further stated that she is very close to her family and chats and Skype’s with her parents every day. It was stated that the main reason for her not travelling home is that she has been overwhelmed with her studies and obsessed with learning English. It was acknowledged in the statement that there have been some gaps in her study. It was also stated that she is an essential worker being a clinical nurse and that she wants to give back to the community in Thailand. It was stated that her course has another six months to go.
At the hearing the Tribunal had a discussion with the applicant regarding her stay and study here in Australia noting that she has now been here for eight years having various enrolments including some English-language courses and a Bachelor of Nursing completed in 2016. It was noted by the Tribunal that since that time the applicant has had only an enrolment in a graduate diploma level course in leadership and management. It was further noted by the Tribunal that the applicant had high-level tertiary qualifications in nursing gained back in her home country and also up to 10 years work experience as a professional nurse. The applicant stated that she wished to finish her management course and then return to her home country and take on a superior nursing supervisor position and that this enrolment would assist her in achieving that.
The Tribunal had a discussion with the applicant as to why she did not return home in 2016 once she had her nursing qualification and perhaps study similar courses back in her home country if that is what she felt she needed. The applicant stated that the quality of education was higher here in Australia and also that she wanted to remain in Australia and work on being able to get registered as a nurse here which would assist her in her future career. She stated that she had achieved some form of nursing registration here but that it held restrictions and she could not get the work necessary in the appropriate field to achieve full registration. The applicant further stated that her graduate diploma level course in management would assist her to become a leader in the nursing field and a supervisor in Thailand. The Tribunal had a further discussion with the applicant about this noting again that the applicant could have returned home to study such courses back in her home country. The applicant stated that she wanted to stay here and study to improve herself. It was also acknowledged by the applicant that there had been many study gaps in her student history.
The Tribunal has considered this evidence carefully and notes that the applicant has stated that she has two bachelor level degree qualifications in nursing gained back in her home country and in Australia, some form of Masters level qualification in nursing gained in her home country, and a significant period of professional work experience in her professional area back in her home country. The Tribunal did not find the applicant’s evidence that she needs to do this diploma level course in management as it would assist her to be a supervisor in nursing as being credible. The Tribunal was concerned about the applicant’s evidence in this regard and finds that the applicant’s explanation for staying here since 2016 and then studying a low-level diploma course was contrived and not credible. The Tribunal finds that the applicant is seeking to undertake a course that is not consistent with her current level of education and that that course would not assist the applicant to obtain employment or improve employment prospects in her home country. It is noted by the Tribunal that decision-makers should allow for reasonable changes to career study pathways however as above the Tribunal notes that the applicant has genuine high level qualifications in her chosen field gained both here in Australia and in her home and that her statement that she needs to do this current enrolment to improve her position in this regard is not credible.
The Tribunal finds that the relevance of this course to the applicant’s past or proposed future employment either in her home country or a third country is not evident and the remuneration the applicant can expect to receive in her home country or a third country would not be improved by having a graduate diploma level qualification in management. The Tribunal also notes that the applicant has stated that her she wishes to remain here in Australia so as to put yourself in a position where she can obtain her nursing registration without restrictions which the Tribunal notes could possibly improve her career prospects or perhaps rather promote her ability to remain in Australia permanently. The Tribunal finds that the applicant was not able to put credible evidence forward that her current enrolment would assist her in her future career. The Tribunal finds that this lends weight to the contention that the applicant is seeking to use the student visa program to circumvent the migration program.
The Tribunal has also considered the applicant’s evidence regarding the reasons why she has remained here since 2016 and not returned home to undertake any such study she wishes including her graduate diploma level management course and finds that the applicant has not provided credible or reasonable reasons for not undertaking such study should she wish to do so in her home country or region as courses of a similar nature would be available there. The Tribunal notes that decision-makers should allow for any reasonable motives established by the applicant but the Tribunal notes the applicant has not established reasonable motives and was not able to provide any evidence that was credible that she needed to study this course here in Australia. The Tribunal finds that this lends weight to the contention that the applicant is seeking to use the student visa program to circumvent the migration program and retain residence in Australia.
In regard to the applicant’s ties with Australia it is noted by the Tribunal that the applicant has now been here since 2012 and for most of the time she has been living with her sister and her niece here who are both permanent residents and that she has stated that she is active in the local Thai community and has many friends here who she has travelled with throughout Australia. It is also noted by the Tribunal that the applicant stated that she remains in regular contact with her family in Thailand and did not provide any evidence that this was creating difficulties maintaining her family relationships from Australia. The Tribunal finds that the applicant’s ties with Australia would present as a strong incentive for the applicant to remain in Australia, and these include both family and community ties. The Tribunal finds that this lends weight to the contention that the applicant is seeking to use the student visa program to circumvent the migration program.
In regard to the applicant’s ties to her home country it is noted by the Tribunal that the applicant has now been here for eight years and has also travelled to other countries for holidays but has never actually been back to her home country since her arrival here in 2012. The Tribunal also notes that as above the applicant did not indicate that she was having any problems maintaining her family relationships from here. The Tribunal finds that the extent of the applicant’s personal ties to her home country do not serve as a significant incentive for the applicant to return to her home country and this also lends weight to the contention that the applicant is seeking to use student visa program to circumvent the migration program.
In regard to the economic circumstances of the applicant it is noted by the Tribunal that the applicant has been working here for some time as a massage therapist earning, in her statement, up to AU$20,000 per annum which almost covers her living expenses in Australia which she stated are AU$21,000 per annum. The Tribunal finds the economic circumstances of the applicant would present as a significant incentive for the applicant not to return to her home country and that this lends weight to the contention that the applicant is seeking to maintain residence in Australia.
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Stephen Witts
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.

[2020] AATA 4718

11 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction