Namseelee (Migration)

[2020] AATA 5014

Namseelee (Migration) [2020] AATA 5014 (27 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Arisa Namseelee

CASE NUMBER:  1919040

DIBP REFERENCE(S):  BCC2019/1979603

MEMBER:Damien O'Donovan

DATE:27 November 2020

PLACE OF DECISION:  Canberra

DECISION: The decision under review is set aside and the visa application is remitted for determination in accordance with this decision.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, study and work history – change of study area and future business plans – family ties to home country – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, 500.212(a)

CASES

Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061

Saini v Minister for Immigration and Border Protection [2016] FCA 858

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 27 June 2019 to refuse to grant Ms Namseelee, the visa applicant, a Student (Temporary) (Class TU) Subclass 500 visa under section 65 of the Migration Act 1958 (the Act). The applicant is a Thai national who applied for a temporary Student visa on 17 April 2019. The delegate refused to grant the visa on the basis that, in light of the applicant’s study and employment history, she was satisfied that the applicant was seeking to extend her stay in Australia for the primary purpose of work rather than to obtain a qualification that will enable her to pursue career opportunities in Thailand. Consequently, the delegate was not satisfied that the applicant met the ‘genuine temporary entrant as a student’ criteria.

LEGAL FRAMEWORK

2. In broad terms, a visa cannot be granted to the applicant unless the Minister (or his delegate) is satisfied of the matters set out in section 65 of the Migration Act 1958 (Migration Act). The requirements in section 65 include the requirement that the other criteria prescribed by the Migration Regulations 1994 (Migration Regulations) have been satisfied.

3. In the present case the delegate was not satisfied that the applicant met the criteria specified in clause 500.212 in Schedule 2 of the Migration Regulations. The clause provides:

500.212

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)…

(iv)any other relevant consideration; 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.

4.    The drafting approach taken in relation to the regulation obscures rather than illuminates the decision-making task. As a consequence, I have set out below what I understand to be the test laid down by the regulation and what it means in practical terms for the assessment of a visa application.

5.    The regulation requires the Tribunal to be satisfied of the following:

a.That the applicant is a genuine applicant for entry and stay as a student. This can be contrasted with a person who is a non-genuine applicant for entry and stay as a student. A person who applies to stay as a student, but whose true intention is to use the study as a means of working in Australia or seeking a path to stay permanently in Australia and who is indifferent as to the course they study, could not easily be regarded as a genuine applicant to stay as a student in Australia. A person with a genuine interest in a specific course but whose primary motivation for staying on as a student is to work (and in the absence of that work would leave Australia) is probably not a genuine applicant for entry and stay as a student either. However, much depends on the circumstances of each case and an evaluative judgment is necessary in relation to this criteria;[1]

b.One essential component in reaching the conclusion about genuineness, is satisfaction that the applicant intends at the point of consideration of the application to stay in Australia temporarily. The Tribunal must be satisfied that the applicant is a genuine applicant because he or she intends to stay temporarily. The conclusion about genuineness must be supported by reasons which include satisfaction that the applicant intends to stay temporarily. This idea was expressed by Justice Logan in Saini v Minister for Immigration and Border Protection[2] in the following terms:

…the presence of the conjunction, ‘because’ indicates that this overarching satisfaction must be reached by reason of particular criteria specified in cl 572.223(1)(a) and (b).[3]

In other words, if the Tribunal were satisfied that the applicant is a genuine applicant to stay as a student based on relevant grounds, but the reasons for forming that view did not include satisfaction that the applicant intended to stay in Australia temporarily, the Tribunal would not be satisfied of the criteria prescribed by the regulations. It follows then that if the conclusion was reached that the applicant had chosen a course that was useful and relevant to him or her and important to future career prospects but the view was also formed that he or she intended to stay in Australia permanently because (for example) he or she had a relationship they wished to pursue in Australia, then an essential component would be lacking for the grant of the visa.  The Tribunal must be satisfied that the applicant is genuine for reasons which include (i) that the applicant intends genuinely to stay in Australia temporarily, and (ii) that the applicant intends to comply with the visa conditions, as well as ‘because… of any other relevant matter’. It is unusual that the basis on which a decision maker becomes satisfied of the principal criteria is essential to a favourable decision, but the terms of the regulation compel such a conclusion. As a practical matter it means that if the Tribunal is not satisfied that the applicant intends (at this point) to stay only temporarily,[4] an applicant cannot succeed.

[1] Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 at [14]

[2] [2016] FCA 858 (“Saini”)

[3] Ibid at [23]

[4] ‘Temporarily’ however needs to be understood in the broad sense identified by Justice Logan in Saini at [30] where he noted that because the regulations provide for visas which permit a longer stay for further study ‘it is possible for there to be, at the time of decision, an intention to seek some further visa which will nonetheless lead to nothing more than further temporary residence’.

6. Under section 499 of the Migration Act, the Minister may give directions 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. A person or body must comply with any direction given. The Minister has made a direction in relation to the genuine temporary entrant criterion. It is Ministerial Direction No. 69 – Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications (the Direction) and it sets out the factors that must be taken into account when determining whether the prescribed criteria in paragraph 500.212 (a) have been satisfied.

7. As noted above, the criteria in clause 500.212 and the Direction reflect a concern that a student visa may be used for a purpose other than facilitating a temporary stay in Australia to undertake study. Consequently, the criteria are framed in such a way that the applicant for the visa must satisfy the delegate (and now the Tribunal) that, at this point in time they genuinely intend to stay temporarily (recognising that that intention may later change), and that their purpose in coming to Australia is to undertake study.

8.    A person’s intention at any given time is a fact, but often one not easily discerned. Sometimes what a person says about their intentions may not honestly reflect their intentions. Surrounding facts may cast doubt upon the stated intentions. Consequently, the Directions draw attention to surrounding circumstances which may raise doubts in a decision maker’s mind about the true intentions of the visa applicant, whatever they may say.

9.    A non-exhaustive list of circumstances where further scrutiny may be appropriate are listed in the Directions as follows:

a.Where information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

b.Where the applicant or a relative of the applicant has an immigration history of reasonable concern;

c.Where the applicant intends to study in a field unrelated to their previous studies or employment; and

d.Where there are apparent inconsistencies in information provided by the applicant in their Student visa application.

1. The Direction notes that a Student visa should be refused if the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

2. The Direction also directs attention to the applicant’s circumstances which in turn may cast doubt upon whether the applicant is a genuine temporary entrant. The Direction identifies the applicant’s circumstances in Australia relative to the applicant’s circumstances in their home country as a matter of interest. If the course is of little value to the applicant’s future on return to their home country (criteria 7) or the material advantages of living in Australia for the applicant are such that the student visa looks like it is primarily intended to maintain the applicant’s residence in Australia rather than for the purpose of facilitating study (criteria 8) this can also undermine acceptance of the genuineness of the applicant’s intention to enter and stay as a student temporarily.

3. The Direction provides that when considering the applicant’s circumstances in their home country, decision makers should have regard to:

   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 ties to their home country (which assists in being satisfied that the applicant has a reason and desire to return home once study is complete);

   c.Whether economic circumstances of the applicant would present as a significant incentive for the applicant not to return to their home country;

   d.Military service commitments in their home country; and

   e.Political and civil unrest in the applicant’s home country.

4. The Directions also indicate that decision makers should have regard to the applicant’s circumstances in Australia. If there are strong reasons to believe that the applicant has strong reasons to intend to stay permanently after their study has finished, then this also goes to the genuineness of their application to enter and stay as a student. The Direction focusses on:

   a.The applicant’s ties with Australia which would present 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 visa is being used to maintain ongoing residence;

   d.Whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome – ie is the relationship contrived for a successful visa outcome – if so, it casts doubt on the genuineness of both persons; and

   e.The applicant’s knowledge of living in Australia and their intended course of study and the associated education provider.

5. The Directions also indicate that Decision makers should have regard to the value of the course to the applicant’s future. Again, if a course has no real value to an applicant, that casts doubt upon the genuineness of their desire to study the course and suggests that their intention is merely to facilitate an extended stay in Australia. An application submitted to facilitate a longer stay in Australia rather than to undertake the course in which the person enrols indicates that the applicant was not a genuine applicant for entry and stay in Australia as a student.

6. The Direction identifies the following features as raising concerns:

   a.Whether the course to be undertaken is consistent with the student’s 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;

   b.The relevance of the course to the student’s past or proposed future employment either in their home country or a third country;

   c.Remuneration the applicant could expect to receive in the home country or a third country compared with Australia, using the qualifications gained from the proposed course of study.

7. The Direction also notes that the applicant’s immigration history may reflect on the genuineness of the intention to stay temporarily. Under the Direction an applicant’s immigration history refers to both their visa and travel history. The decision maker should have regard to previous visa applications for Australia or other countries. Presumably if a person has a long history of seeking to settle in countries other than their home country then that casts doubt on whether the desire for a Student visa is born of a particular desire to study the course in which the applicant is enrolled or a more general desire to escape their country of origin and remain in Australia permanently.

8. Also whether the applicant has complied with the conditions imposed on previous visas and left before their visas ceased is noted as relevant, as is the amount of time the applicant has spent in Australia and whether the Student 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.

9. Decision makers are also directed to have regard to any other relevant information provided by the applicant or otherwise available to the decision maker.

10. The Direction only addresses one aspect of the regulation – whether the applicant’s intention is to stay temporarily.

11. The broader scope of the regulation has been the subject of recent consideration by the Federal Court. In  Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (“Eros”) Allsop CJ emphasised that the opening phrase of clause 500.212 contains a whole idea or concept: ‘a genuine applicant for entry and stay as a student’ and that ‘this expresses a criterion that will involve value judgments about the applicant and his or her genuineness to enter and stay as a student.’[5]

    [5] Eros at [14].

12. His honour also emphasised that the criterion in (a) is concerned with how long the applicant intends to stay in Australia and nothing else.[6]

    [6] Ibid at [29].

13. His Honour makes clear in his judgment that it is necessary for the Tribunal to reach conclusions about whether the applicant genuinely intends to stay as a student even if the Tribunal is satisfied that a temporary stay is intended. It was because no findings on the genuineness of the stay as a student were made that the Tribunal decision under consideration in Eros was set aside.

14. If after consideration of the facts the Tribunal is not satisfied as to the genuineness of the applicant’s stay as a student, or that the stay will not be temporary, the application must be rejected.  There is no inconsistency between the Direction and the Eros decision.

Facts

1. The applicant is a Thai national. She was born in Khon Kaen Province on 25 January 1979. She has never married. She lived in Thailand until October 2016.

2. She holds a bachelor’s degree with honours in Business Administration (Marketing) from Ramkhamhaeng University. She graduated in 2006. After graduation she worked for a Thai company specialising in event management called Splash Impact Co Ltd in Bangkok. After co-ordinating an event for Samsung which involved dealing with a team from South Korea as well as Thailand where the language used was English, the applicant decided that she needed to improve her English to improve her career prospects. She decided to undertake an English language course in Australia. She paid for the course with financial assistance from her family.

3. She studied English at Ashton College in Footscray from 10 October 2016 to 20 November 2017. To support herself the applicant worked in a restaurant some evenings. She did not need to work as she had enough savings to cover living expenses. In February 2017 she commenced work at Sawasdee Thai Massage.

4. At the end of her first language course the applicant felt that her result was poor and decided to do another year of English. She enrolled at Australian National College but continued to work for Sawasdee. Her language course ran from 9 February 2018 to 17 March 2019.

5. It was while working as a massage therapist that the applicant decided to abandon her plans to return to Thailand and work in marketing. She decided to become a masseuse specialising in therapeutic massage (as opposed to Thai massage). In early 2019 the applicant and three friends decided to establish a business. A company called Dabua Group Co Ltd was set up. The promoters were the applicant, Miss Pattama Kasung, Mr Montri Katasila and Miss Juleeporn Rattanachan. The registration was effected on 1 April 2019.

6. In her application for the Student visa the applicant described this decision in the following terms:

   Recently,My friends and I have established a company named Dabua Group Co., Ltd….Our first holistic health centre starts on March 26, 2019 located in Kalasin province, Thailand. It includes a massage shop and a small café surrounded by a relax scene of green paddy field. The business has been going very well. We also have deals with the hotels round Kalasin province. They are the main customer referrers during the beginning of our business. We plan to expand our business but we do not have enough qualified staffs. So we agree that I should take a course to get myself a business credibility and go back to Thailand to take care of our future branch in Surat Thani province.

7. In her application to the Tribunal the applicant described the business in the following terms:

I already have a business as previously explained. Although the business is doing financially ok we are unable to properly expand because staff numbers are never fixed and hotels want internationally recognised accreditation. Some hotels will not refer clients to our center…The business activity we want to offer in future is to travel to the smaller hostels to offer remedial massage therapy services to their clients because these hostels will not be able to have a permanent in-house massage therapist. At the same time, we want to offer a service to the larger hotels where we can train their staffs to maintain a high standard in offering remedial massage therapy services to clients.

1. Her description of the business at the hearing differed from these accounts but not in ways which suggest to me that the story is a concoction.

1. To execute the business plan, the applicant decided to enrol in a remedial massage therapy course. It appears that the applicant’s English language proficiency was not sufficient to enrol directly in a remedial massage course and so further English study was required. Through the balance of 2019 the applicant undertook English language studies at Greenwich College and commenced a remedial massage therapy course in January 2020 at Australian Learning Group. She expects to complete the course in January 2022. The course was disrupted to a degree by the onset of COVID 19 and associated restrictions but hands on classes have recently resumed.

2. The applicant described herself as ‘certain’ that she will return to Thailand as soon as her course finishes. She wants to complete her study so that she can return to Thailand to help with the business established by her and her friends.

Consideration

1. I am satisfied:

   (a)       That the applicant intends to stay in Australia temporarily and will return to Thailand as soon as her course in Remedial Massage finishes in January 2022;

   (b)       That she is a genuine applicant to stay as a student who is undertaking a course which is relevant to her future job prospects and has specific plans to return as soon as possible to Thailand when her course is finished.

2. I make these findings on the basis of the clarity of her business plans and the relationship between the study she is undertaking and her business plans in Thailand.

3. While there are a number of matters, which I discuss below, which raise some doubt in my mind as to the genuineness of the applicant’s stay as a student, having seen the applicant give evidence I am satisfied that she is a witness of truth who has given an honest account of her intentions.

4. The applicant is well educated, with a marketing degree, and she previously worked in the event management industry. When she originally came to Australia her reason for coming to Australia was that she wanted to improve her English to improve her job prospects within the event management industry. Since her arrival in Australia the applicant’s plans have changed completely and her stay has lengthened from a course which was expected to take only a little over a year, to a stay of over 5 years. Her plans now have nothing at all to do with the reasons she originally gave for coming to Australia to study.

5. However, as the Direction acknowledges, plans and intentions can change and the applicant gave a cogent explanation for her decision to change direction. Her work as a massage therapist in Australia has given her an interest in remedial massage and with the co-operation of friends she now has an opportunity to acquire skills which will be useful in the business they have set up. The memorandum of association and other business documentation is consistent with the execution of that plan.

6. On the material before me I am not satisfied that the applicant is obtaining collateral benefits from living in Australia or nor is there material which casts doubt on her having the intention of staying temporarily in Australia for the purpose of studying.

7. On the applicant’s version of events (which I accept) her stay here is largely funded by her savings and money transferred from her family in Thailand to cover the fees of the courses she is undertaking. Her family owns a farm in Thailand which produces rice, sugar cane and vegetables and which appears to be reasonably prosperous. On this account there is no collateral benefit from her continuing to live and work in Australia. The financial flows appear to be from Thailand to Australia.

8. There is some material which cast doubt on this narrative but it is equivocal and does not provide a basis for a finding that the applicant is not a witness of truth.

9. For example, it is clear from the bank statements which form part of the evidence before the Tribunal that the applicant occasionally makes large cash deposits to her account (for example in 28 February 2020 the sum of $3000 was deposited to her ANZ account). The applicant’s evidence is that this amount (and other similar sums in other months) were given to her by the owner of the massage business she works for so that she can transfer the money back to Thailand on the owner’s behalf.

10. This story is somewhat undermined by the fact that the bank statements provided to the Tribunal show that the money is transferred, not to an account in Thailand but to an account held at an ANZ branch in Bourke Street Melbourne – BSB 013-132. 

44.Further, the explanation that the applicant gave for the business owner handing over large sums to the applicant for transfer were not entirely coherent. The applicant said that she received the money because she worked in the CBD and the business owner did not want to travel there as she was afraid of COVID. Given the date of one of the transfers (February 2020) that is not a credible explanation.

1. If the account is false then that leaves open the possibility that the applicant is earning significant amounts of undeclared cash income in Australia. If this were the case, there would be significant collateral benefits for the applicant staying on in Australia. This however is speculation. The evidence available is not sufficient to allow me to form a firm view that the applicant is being dishonest and that her evidence on these matters should be disregarded. Accordingly, in light of her evidence, I have proceeded on the basis that there is no collateral advantage in the applicant continuing to live in Australia.

2. Another cause for scepticism is that the business case for the applicant remaining in Australia is not strong. She has paid almost $18,000 to enrol in the remedial massage course and before that, spent almost $10,000 on the related English language course she undertook in 2019.

3. She describes the income earned by the business back in Thailand as ‘not a lot’. In other words, the applicant is paying out very large amounts of money to allow her to pursue a business with uncertain prospects back in Thailand. The speculative nature of the business is clear from the fact that it is a tourist business which is being established in a non-tourist area. While there are options for the business to grow – for example through the provision of training in remedial massage to hotels in town – it is unclear whether these sources of revenue will emerge. If the evidence established that the applicant was deriving secondary gain from staying in Australia, that combined with the poor rationale for pursuing the training would lead to the conclusion that the applicant is not a genuine student.

4. However, in the absence of a basis for concluding that there is secondary gain, the weak rationale for the training on its own does not provide a basis for me to reject the applicant’s evidence as to her intentions and plans.

5. The factors which support the conclusion that the applicant is a genuine temporary student include that the applicant gave a reasonable reason for not pursuing the study of remedial massage in Thailand. On her account, this type of massage is not widely practised in Thailand and an international qualification is useful in the tourism industry in Thailand.

6. The applicant also noted that she has immediate family members who are still living in Thailand – her parents and brother and his family are all still there. Accordingly, there are ties which will draw her back to Thailand. There are other significant reasons why the applicant would want to return to Thailand at the end of her course. Her ties to Australia are not strong. She has no family in Australia. She has a business in Thailand, set up with friends which she wants to see succeed. Accordingly, I am satisfied that the applicant intends only to stay in Australia temporarily.

7. While there are some speculative reasons to doubt that the applicant is a genuine applicant to stay as a student, the matters on which there is solid evidence all point to the applicant being a genuine student seeking to stay in Australia for the purpose of study. The evidence of collateral benefits from working are insubstantial and I am satisfied that she does wish to learn remedial massage to pursue her business in Thailand. I am satisfied that as soon as she has completed her qualification, she will return to Thailand just as she said she intends to do.

8. In these circumstances I am satisfied that that applicant meets the conditions in regulation 500.212. I set aside the decision under review and remit the application for determination consistent with this decision.  

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

10. The matter should be remitted for reconsideration.

Statement made on 27 November 2020 at 11:28am

500.212 

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.