LUEANGWATTHANAKUN (Migration)

[2018] AATA 1370

LUEANGWATTHANAKUN (Migration) [2018] AATA 1370 (11 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SUKONTIP LUEANGWATTHANAKUN

CASE NUMBER:  1700703

DIBP REFERENCE(S):  BCC2016/2632387

MEMBER:Penelope Hunter

DATE:11 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 April 2018 at 9:52am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant criterion – Completed a Bachelor degree in Economics from her own country – Poor academic performance – Failure to complete Screen and Media courses – Change in field of study – Works part time in Australia – Attempt to maintain ongoing residence status

LEGISLATION
Migration Act 1958 ss 65, 499

Migration Regulations 1994 Schedule 2 cl 500.212

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 11 January 2017 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 for the visa on 9 August 2016. 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.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.

4. The applicant appeared before the Tribunal on 8 March 2018 to evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

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

   CLAIMS AND EVIDENCE

7. The applicant is a citizen of Thailand and arrived in Australia on 24 November 2012.

8. The applicant it for the visa in order to undertake study in a Diploma of Accounting, with course dates from 20 June 2016 to 17 December 2017.

9. The applicant had attained a Bachelor of Business (Economics) from Khon Kaen University (Thailand).

10. In her application, the applicant set out that she believed that studying the Diploma of Accounting would make her have better opportunities when applying for higher management positions with the same company or other international organisations.

11. The delegate in their decision, a copy of which the applicant has submitted to the Tribunal, set out the following reasons for refusing the visa;

    i.The applicant’s Provider Registration and International Student Management System (PRISMS) records revealed that she had previously been enrolled in English (Beginner to Advanced), a Diploma of Management, English (Elementary to Advanced), Certificate IV in Screen and Media, Certificate IV in Accounting and Diploma of Screen and Media. The records reflected that she had only finished her English courses and the Certificate IV in Accounting since her arrival in November 2012.

    ii.The last two student visas for the applicant were granted so that she could complete courses in Management and Screen and Media. The applicant had not completed either of these courses, and instead has changed her field of study to Accounting and not provided any substantial reasons as to why she had chosen the course or how it will benefit her future career.

    iii.The applicant had only maintained enrolment in short inexpensive courses since her arrival in 2012, without progressing to a higher level of study.

    iv.The applicant had also not responded to a request for comment and had not provided supporting documentation for her application which was not considered to be the behaviour of a genuine student.

    v.The migration record of the applicant was also of concern, as since her arrival in 2012 the applicant had only departed Australia for 57 days, and the applicant had not provided any evidence of her ties to her home country.

12. Prior to the Tribunal hearing the applicant submitted a record of achievement confirming that the applicant had studied English for 15 weeks from 31 October 2016 to 17 February 2017, 10 weeks from  15 May 2017 to 21 July 2017 and a further 10 weeks from 24 July 2017 to 29 September 2017, a Certificate of completion of a Diploma of Accounting and transcript, Certificate of completion of a Certificate IV of Accounting and transcript, Certificate of completion of a Diploma of Management and record of results, Certificate of attainment and attendance in four English courses from 3 December 2012 to 13 September 2013. In a statement that accompanied her documents the applicant set out the following information;

    i.Since her arrival in Australia she had been constantly enrolled. The applicant submitted evidence of these studies including a record of achievement confirming that the applicant had studied English for 15 weeks from 31 October 2016 to 17 February 2017, 10 weeks from  15 May 2017 to 21 July 2017 and a further 10 weeks from 24 July 2017 to 29 September 2017, certificate of completion of a Certificate IV of Accounting and transcript, certificate of completion of a Diploma of Management and record of results, certificate of attainment and attendance in four English courses from 3 December 2012 to 13 September 2013.

    ii.The applicant had completed Diploma of Accounting and provided certificate of completion and transcript,

    iii.The applicant was currently enrolled in an Advanced Diploma of Accounting at Crown Institute of Business and Technology. A Confirmation of Enrolment was provided with course dated from 8 January 2018 to 9 June 2019 issued on 22 January 2018.

    iv.Her new course was consistent with previous courses she had undertaken in Australia and overseas. The applicant submitted a transcript from her Bachelor degree in Economics.

    v.She hoped to graduate with and advanced Diploma in Accounting and find employment in the field of accounting or in the financial sector. Her Australian qualifications would assist her greatly as they are highly valued in most Asian countries. Individuals with Australian tertiary qualifications can usually earn a higher amount of pay.

    vi.She was employed part-time at the Dee Why Hotel.

13. At the hearing the Tribunal explored with the applicant her study history and study and career intentions. The applicant was asked why she had enrolled in a further course and the relevance of her further studies to her career and academic goals. The Tribunal raised concerns with the new enrolment of the applicant, when she formed the intention to attempt further study and the relevance of her previous studies. The applicant also discussed with the Tribunal her immigration history, ties in Australia and her home country, the issues of concern for the delegate and other relevant matters.

    RELEVANT LAW, FINDINGS AND REASONS

14. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine application for entry and stay as a student as defined in the legislation.

15. 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?

16. 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 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.

17. 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.

18. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

19. The Tribunal accepts that the applicant has completed several courses in Australia and that since she applied for the visa the applicant has engaged in and continued her studies. This is the general expectation of all applicants in Australia on student visas.

20. The Tribunal held concerns about whether the applicant was progressing in her studies and her genuine academic and career intentions. The Tribunal asked the applicant why she had come to Australia to study. She claimed that it was close to home and she wished to get a higher education. This was difficult for the Tribunal to reconcile with the fact that she already had a Bachelor degree in Economics from her own country, and in Australia she had only undertaken study at the lower vocational education and training level, in short inexpensive courses. The Tribunal questioned the applicant about what she intended to study when she claimed accounting and management. The applicant did not provide a satisfactory explanation to the Tribunal as to why she did not continue her studies in Management. The Tribunal asked the applicant why she had enrolled in Screen and Media, when she wanted to do management and accounting and she claimed that she had wanted to change career direction, but decided after a while it was not for her. It did not appear to the Tribunal that the applicant could demonstrate a career or academic plan with her initial studies. The time that the applicant had spent engaging in short inexpensive courses at the vocational education and training level without progression indicated to the Tribunal that the applicant was using the student visa program to maintain residence.

21. When asked why she desired qualifications from Australia, the applicant claimed that it would give her a better opportunity. The applicant did not have any evidence to support this claim, and gave evidence only that she wanted to work in the field of financial accounting. The Tribunal found her evidence to be consistently vague and considerably generic when asked questions about her career intentions and study aspirations. In the past in Thailand, the applicant had worked in a bank for 5 years. In Australia she claimed to have undertaken some voluntary accounting work for the friend of her auntie, however she could not remember the name of the business and she was not sure whether it was 2 or 3 years prior to the Tribunal hearing. The Tribunal had concern about the relevance of the applicant’s studies to her actual career intentions. The applicant had also not demonstrated to the satisfaction of the Tribunal that her studies would provide a substantial benefit to her career, considering the time and expense of study in Australia, given her existing qualifications and experience.

22. The applicant claimed that she had returned to accounting because it was the field that she had previously studied in. This raised concerns for the Tribunal that the applicant was enrolling in subjects that would not challenge her academically. The applicant justified starting her studies at the Certificate IV level as she claimed that basis accounting principles were not part of her Economics degree. The Tribunal was not satisfied with this response. When the Tribunal reviewed the academic transcript for her Certificate IV in Accounting it is recorded that the applicant received a credit transfer for most of her subjects. Many of the subjects were similar to those undertaken in her Diploma of Management. The Tribunal was not satisfied that the applicant needed to build a foundation of knowledge. The applicant has now completed her Diploma of Accounting, and prior to the Tribunal hearing she had enrolled in an Advanced Diploma of Accounting. When the Tribunal questioned the applicant as to when she intended to return to her home country, she responded when she had finished her studies in Accounting. The Tribunal considered this response to be vague and questioned her as to what studies she intended. The applicant indicated that she would like to undertake a Masters in the area of Financial Accounting. The Tribunal questioned the applicant as to why she had enrolled in a further vocational education and training course if she intended to do a Masters. The applicant responded that as her visa had been refused it did not work. She did not provide any evidence to support her claims that she was unable to enrol in a Masters course. The applicant also did not provide any evidence to demonstrate the benefit to her career from such qualifications. Once more her evidence was generic, and she submitted with a Masters degree she could get better employment. The applicant had not demonstrated the benefit that undertaking the proposed courses in Australia would provide to her career prospects. Additionally, the Tribunal found it difficult to reconcile the applicant’s claims of desiring an education higher than her existing qualifications when she has continued to maintain enrolment at the vocational education and training level. As she already held a Bachelor’s degree in Economics, the Tribunal is not satisfied that the applicant required several of study at the vocational education and training level before she could progress to the higher education level. The applicant was unable to satisfactorily substantiate her career goals in order to demonstrate the relevance of her chosen studies in Australia to her career intentions, or that her intended courses will actually change or improve her career prospects. Again, it appeared to the Tribunal that the applicant was using the student visa program as a means of maintaining residence in Australia.

23. As to the applicant’s circumstances in her home country, she claimed to have sisters and an aunt living in Thailand. Her parents died around 2016. The applicant has not provided evidence of any travel to her home country since the decision of the delegate. It is noted that she has been living independently in Australia since 2012, and only spent 57 days offshore. The Tribunal is not satisfied that her family connections act as a significant incentive for her to return to her home country. The applicant also claimed to have inherited an interest in her parents’ business which was currently being managed by her sister. There was no evidence provided to support this. However, the Tribunal notes that the applicant did not claim to have a role in this business and in any event the Tribunal is not satisfied that this business interest would act as an incentive for the applicant to return to her home country. The applicant has not provided evidence of any other career or economic incentive to return to her home country.

24. In Australia the applicant claimed not to have any family. She some friends of her auntie and has been living with other Thai nationals in share accommodation. When asked about any relationships in Australia she claimed to have a close friend with whom she had been in a relationship for 3 years. He is also a Thai national studying in Australia. Other than volunteer work for her auntie’s friend, the applicant has been working in customer service at the Dee Why Hotel. She has not obtained any paid work in the area of finance or accounting. The Tribunal considered that the applicant’s potential circumstances in Australia may provide incentives for her to remain in Australia for purposes other than that of a genuine student.

25. The concerns raised above lead the Tribunal to not be satisfied that she is a genuine in her reasons for studying in Australia and why she wishes to undertake the Advanced Diploma of Accounting from 2018. Rather it is of the view she is using the student visa program to maintain residence in Australia. In making this decision the Tribunal has considered all the evidence before it including that the applicant is currently enrolled, has completed some of the courses she has engaged in while in Australia and that she has family ties to her home country, and all the other matters that she has raised, however it is not accepted that she is undertaking her current study for the reasons that she has claimed.

26. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

27. 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

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

    Penelope Hunter
    Member