Phoparisuth (Migration)

[2018] AATA 5569

Phoparisuth (Migration) [2018] AATA 5569 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms On-uma Phoparisuth

CASE NUMBER:  1710208

HOME AFFAIRS REFERENCE(S):           BCC2017/789971

MEMBER:Stephen Witts

DATE:29 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (class TU) Student (Subsequent Entrant) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl.500.312 of Schedule 2 to the Regulations.

Statement made on 29 November 2018 at 2:29pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – long-term relationship with primary student visa holder – intend to return to home country upon boyfriend’s completion of study – working as a massage therapist – length of stay in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.312

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 2 May 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 28 February 2017. 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.500.312 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa.

4. The applicant appeared before the Tribunal on 26 November 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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 applicant for entry and stay as a member of the family unit of a person who holds a student visa.

   Genuine applicant for entry and stay as a student (cl.500.312)

7. Clause 500.312 requires as follows:

   The applicant is a genuine applicant for entry and stay as member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa, 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?

8. In considering whether the applicant satisfies cl.500.312(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.

9. 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.

10. At the hearing the Tribunal had a discussion with the applicant regarding the relevant considerations outlined in Ministerial Direction 69.

11. According to the applicant’s evidence she first arrived in Australia from Thailand on a student visa in February 2013. She stated that she is currently on a bridging visa and during her time here has applied for a Student (Subsequent Entry) visa on 28 February 2017 which was rejected by the delegate on 2 May 2017. She also stated that she has applied for a Partner visa on 12 May 2017 which was also rejected by the delegate.

12. According to the applicant’s evidence she originally came to Australia to improve her English and that she was planning to return to Thailand to work in her relative’s business.

13. The applicant stated that she has a mother and a father, and a sister and niece back in her home country that she remains in regular contact with. She also stated that she has a sister who lives here and is currently on a 457 visa. She stated that her sister has been here since 2012.

14. The applicant stated that she did not have any issues of concern back in her home country that would prevent her from returning home.

15. According to the applicant’s evidence she stated that:

    “I would like to stay in Australia for my boyfriend. If not for this I would have gone home a long time ago.”

16. She also stated that her boyfriend, the primary student visa holder, is due to finish his course in January 2019 and that at that point they intend to travel to Thailand and live in that country for a period of time. She stated that she wants to return home to be with her family and to work in her family’s business in the LPG gas industry.

17. The applicant also provided evidence of her continuing relationship with her partner of over three years including relationship certificates, photographs and other evidence that authenticates that the applicant is currently in a relationship with the primary student visa holder.

18. According to the applicant’s evidence she is not studying at the moment and is working as a massage therapist for a few hours a week earning up to $100 per week.

19. According to the applicant since her arrival here in 2013, and on her initial student and bridging visas, she has completed Certificates I, II and III in English and a Certificate IV in Massage Therapy Practice. She completed this course on 27 May 2016.

20. According to the applicant’s evidence she is currently in a relationship with Mr Marcel Backes, a man of German origin, who is her current partner holding a student visa who is currently studying a Diploma of Light Mechanical Management which is due to complete at the end of January 2019.

21. The applicant stated that she wishes to return home at the end of her boyfriend’s course in January 2019.

22. At the hearing Mr Backes provided evidence that he is currently enrolled in this course and is due to complete in January 2019 and that at that point he and the applicant intend to travel to Thailand and reside there.

23. The applicant provided evidence that she has visited Thailand on a number of occasions to see her family since her arrival here in 2013 and has taken her boyfriend back to Thailand on several occasions to spend time with her family. She also stated that she visited Malaysia in 2017.

24. The applicant provided two witnesses at the hearing. These were her sister Ms Orowan Phoparisuth and Mr Backes, her boyfriend.

25. The applicant’s sister gave evidence that, in her opinion, the applicant was a genuine temporary entrant, was in a genuine long-term relationship with her boyfriend, and would return home in January 2019 with her boyfriend.

26. The applicant’s boyfriend gave evidence that he is due to finish his course in January next year and just wants to remain here in Australia with his girlfriend, the applicant, until he finishes his course in approximately eight weeks’ time and that the pair of them will leave Australia at this point.

27. The Tribunal, although concerned by the applicant’s period of time here in Australia accepts the applicant’s evidence that she will return home to her home country with her boyfriend in January next year. Both the applicant and her boyfriend put to the Tribunal that they would not remain here in Australia beyond the date of his study completion at the end of January 2019 which, according to the witness, corresponds with the end of his student visa. Overall, the Tribunal finds the applicant’s evidence credible.

28. The Tribunal finds that the applicant is a genuine temporary entrant until this date, when both the applicant and her boyfriend have given evidence before the Tribunal that they will leave Australia as of that time. The Tribunal notes that this is only some few weeks away and on that basis is prepared to accept that the applicant is being genuine in her protestation that she intends to leave here in a few weeks. On that basis, the Tribunal accepts the applicant’s evidence that she will leave Australia soon after the end of her boyfriend’s study in January 2019.

29. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.500.312.

    Conclusion on cl.500.312

30. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa as required by cl.500.312.

31. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Student (Temporary) Subclass 500 (Student) (Subsequent Entrant) visa.

32. 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

33. The Tribunal remits the application for a Student (Temporary) (class TU) Student (Subsequent Entrant) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.312 of Schedule 2 to the Regulations.

    Stephen Witts
    Member