MEESAWAT (Migration)

[2018] AATA 3243

MEESAWAT (Migration) [2018] AATA 3243 (10 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wirawit MEESAWAT

CASE NUMBER:  1706899

HOME AFFAIRS REFERENCE(S):           BCC2016/3650844

MEMBER:Stephen Witts

DATE:10 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 10 July 2018 at 3:06pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – study history – studied similar courses in home country – unfinished courses – ability to maintain personal relationships – amount of time in Australia – knowledge of courses – relevance of course to future career – details of business or career plan – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), 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 and Border Protection on 20 March 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 2 November 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 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.

4. The applicant appeared before the Tribunal on 27 June 2018 to give 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 the applicant intends to stay in Australia temporarily.

   Genuine applicant for entry and stay as a student (cl.500.212)

8. 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?

9. 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.

10. 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.

11. At the hearing the Tribunal had a discussion with the applicant regarding issues for consideration outlined in Ministerial Direction 69.

    Background

12. According to the delegate’s decision record, supplied by the applicant, the applicant first arrived from Thailand on 25 July 2011 on a student (class TU subclass 572) visa. Since his arrival here in Australia the applicant has held either a student visa or associated bridging visa. On 20 March 2017 the delegate refused the applicant’s application for a student visa.

13. According to the applicant, since his arrival here, he has been enrolled in the following courses: a General English course finished in February 2012, a Certificate III in Commercial Cookery completed in May 2013, a Certificate IV in Hospitality (Commercial Cookery) enrolled in January 2012 but not completed, a Diploma of Hospitality enrolled in July 2013 but not started, an English for General Purposes course completed in October 2013, a General English (Intermediate) course completed in March 2014, an Advanced Diploma of Hospitality completed in September 2016, a Certificate III in Patisserie completed in September 2017, a Certificate IV in Patisserie completed in April 2018, and a Diploma of Hospitality Management finished in September 2018.

14. The applicant is currently enrolled in an Advanced Diploma of Leadership and Management due to complete in May 2019.

    Circumstances in home country

15. The applicant stated that he first came here from Thailand in 2011 because he “wanted to know English and learn cooking”. The applicant stated that he chose to study here because there was “better cooking in Australia” and the “sweets are better.” The Tribunal was concerned by this testimony as no other specific evidence was put by the applicant as to why he chose to move here to study for a period now of seven years. The Tribunal finds that this indicates that the applicant does not intend genuinely to reside in Australia temporarily.

16. The applicant stated that he completed high school back in his home country and then studied hotel management for a period of two years before he decided he wanted to leave Thailand and come to Australia to study cooking. The fact that the applicant has already studied hospitality management back in his home country prior to coming to Australia to study multiple similar courses at VET level indicates to the Tribunal that the applicant does not genuinely intend to achieve academic qualifications whilst residing in Australia temporarily. The Tribunal finds that the applicant is not seeking to undertake a course that will assist the applicant to obtain employment as the applicant has already studied a hospitality course at a similar level in his home country which indicates that the applicant does not genuinely intend to reside in Australia temporarily.

17. The applicant has a mother and father, both public servants nearing retirement, and a sister back in his home country. He stated that he remains in contact every day via Facebook and Skype and did not have any problems maintaining his personal relationships from here in Australia. The Tribunal finds that this indicates that the applicant is maintaining his personal relationships here from Australia very adequately and does not have an incentive to remain temporarily in Australia.

18. There is no significant relevant evidence regarding the following factors indicated by Ministerial Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, economic or political circumstances in the home country, civil unrest in the home country, circumstances in the home country relative to Australia or any other country, and the applicant’s circumstances in the home country relative to others in that country.

    Circumstances and study in Australia and the value of the proposed course to the applicant’s future

19. The applicant stated that he did not have any family members in Australia and that he lived in the City of Melbourne with friends. He testified that since his arrival here in 2011 he has been back to his home country on three occasions for up to 2 weeks each time. The Tribunal is concerned by this evidence as it indicates that the applicant is happy here in his current situation and does not have an incentive to remain in Australia temporarily.

20. The applicant stated that he is currently working as a chef for approximately 20 hours per week and is earning $500 AUD per week. He stated that his family were paying for his studies.

21. The Tribunal asked the applicant to outline his current learning in his Advanced Diploma of Leadership and Management and to inform the Tribunal as to what he was learning in that advanced diploma that necessitates a further course of study beyond what he has already studied here since 2011. The applicant responded by indicating that his current course is assisting him in “learning how to be the boss” and “recruiting people”. The Tribunal is concerned by the applicant’s evidence regarding this particular matter of his current study as the applicant was actually unable to describe what he was currently studying and how that would assist him in terms of his future career back in his home country after having already completed a number of hospitality, cooking, and specialist cooking courses. The Tribunal finds that this is evidence that the applicant is using the student visa system to retain residency in Australia and that the applicant does not intend to remain in Australia temporarily.

22. The Tribunal asked the applicant to outline his business and career plan for his future once he finishes studying. The applicant responded by indicating that he wanted to open a “homestay bungalow business” where you can “feed the animals”. When prompted by the Tribunal to indicate how this related to his cooking and hospitality courses the applicant responded that this bungalow business would also have a cooking and hospitality component. The Tribunal is concerned by this evidence as it indicates that the applicant does not have a study plan which he can articulate to the Tribunal to explain all the study he has undertaken since his arrival here in 2011 which amounts to 10 enrolments. The Tribunal finds that the applicant is using the student visa system to maintain residency in Australia.

23. The applicant’s registered migration agent, on behalf of the applicant, in a submission to the Tribunal dated 25 June 2018, stated that the applicant has continued his studies during his time in Australia and that the applicant plans to return to Thailand as his family is based there. The Tribunal is concerned by this evidence as no specific submission was put to the Tribunal to explain the applicant’s course progression during his time here in Australia, his failed or not started courses, and the overlapping nature of some of the courses that he has studied, as to the reasons for this record, and what detailed business or career plan that the applicant may have to actually utilise the skills in future that he has learnt here in his study. The most that was put in this submission is that the applicant wants to open a restaurant and bed and breakfast retreat. This stated intention was not supported by detailed submissions as to how the applicant was going to arrive in a position where he will be able to carry out this stated plan. The Tribunal finds that this indicates that the applicant’s study history and his current course of study is not relevant to the applicant’s proposed future employment either in his home country or a third country. The Tribunal finds that the applicant is using the student visa system to retain residency in Australia.

24. The applicant, in his evidence to the Tribunal stated that he owned land back in Thailand which could be suitable for his bed and breakfast retreat. The applicant also provided to the Tribunal at the hearing a “Business Plan for Bed and breakfast Retreat”. This plan included a statement by the applicant that he owns a plot of land located in his home town where he will build and develop a successful bed and breakfast retreat for tourists who wish to stay in a farm like setting. The applicant asserted that the qualifications he gains from his studies in Australia will give him the necessary skills to run this business. The applicant also asserted that as well as serving Thai cuisine at this retreat he will also serve a variety of western deserts which he has gained knowledge of from his courses here in Australia. The Tribunal does not find this evidence plausible as it is not linked in any demonstrable way with the applicant’s actual study history and course enrolments and is not supported by any evidence given by the applicant at the Tribunal. The Tribunal is also concerned that this plan as presented is not linked to the applicant’s seven-year study record of multiple courses, some of which were not finished, and does not explain why, if the applicant has such a plan, he has not returned to his home country to fulfil it. The applicant has not been able to link his current studies towards an Advanced Diploma of Leadership and Management which will not complete until May 2019 to this business plan. The Tribunal finds that the amount of time the applicant has spent in Australia and his study history here indicates that his student visas are being used primarily for maintaining ongoing residence in Australia.

25. 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).

    Conclusion on cl.500.212

26. 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.

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.

    Stephen Witts
    Member