Pitakchaisombat (Migration) [2022] AATA 1432 (4 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Sonwitchaya Pitakchaisombat
CASE NUMBER: 2113476
HOME AFFAIRS REFERENCE(S): BCC2020/125481
MEMBER:T. Quinn
DATE:4 May 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 04 May 2022 at 2:58pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – timing of enrolments – reasonable academic progress – limited value to benefit future career – applicant remains onshore after course completion – employment in Australia – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359, 363, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212CASES
Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Khan v Minister for Immigration & Another [2019] FCCA 565
Manna v Minister for Immigration and Citizenship [2012] FMCA 28Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Tshering v Minister for Home Affairs [2019] FCCA 2667
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112STATEMENT 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 (‘the delegate’) on 23 September 2021 to refuse to grant the applicant a Student visa.[1]
[1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa to undertake study in Australia on 22 January 2020 (‘the application’).[2]
[2]At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 23 September 2021, the delegate refused to grant the visa on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[3]
[3]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy…
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CaseChat Overview and Summary
The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking review of a decision to refuse a Subclass 500 (Student) visa. The applicant, a Thai national, had been in Australia on successive student visas since February 2014 and had enrolled in a Diploma and Advanced Diploma of Leadership and Management, which he had since completed. The core of the dispute revolved around whether the applicant met the criteria for a genuine temporary entrant.
The legal issues before the Tribunal were whether the applicant genuinely intended to stay in Australia temporarily and whether the chosen course of study held value for his future career prospects. The Tribunal was also required to consider and apply Direction No. 69, issued by the Minister under section 499 of the Migration Act 1958, which provides guidance on assessing the genuine temporary entrant criterion for student visas.
The Tribunal reasoned that while the applicant's completion of his courses, particularly during the uncertainty of the COVID-19 pandemic, demonstrated he was a genuine student, this did not automatically satisfy the genuine temporary entrant criterion. The Tribunal noted that the applicant had remained in Australia on bridging visas since his initial arrival in 2014, undertaking further study after completing his prior qualifications in Thailand. The Tribunal placed significant weight on the fact that the applicant had remained onshore for an extended period, suggesting the student visa program might be used to maintain ongoing residence in Australia, a factor explicitly considered under Direction No. 69. Furthermore, the Tribunal found that the chosen course of study had limited value to the applicant's future career prospects in his home country, as he already held a Bachelor's degree in a related field.
Consequently, the Tribunal found that the applicant did not meet the criteria for a Subclass 500 (Student) visa, specifically the genuine temporary entrant requirement. The decision under review was therefore affirmed.
The legal issues before the Tribunal were whether the applicant genuinely intended to stay in Australia temporarily and whether the chosen course of study held value for his future career prospects. The Tribunal was also required to consider and apply Direction No. 69, issued by the Minister under section 499 of the Migration Act 1958, which provides guidance on assessing the genuine temporary entrant criterion for student visas.
The Tribunal reasoned that while the applicant's completion of his courses, particularly during the uncertainty of the COVID-19 pandemic, demonstrated he was a genuine student, this did not automatically satisfy the genuine temporary entrant criterion. The Tribunal noted that the applicant had remained in Australia on bridging visas since his initial arrival in 2014, undertaking further study after completing his prior qualifications in Thailand. The Tribunal placed significant weight on the fact that the applicant had remained onshore for an extended period, suggesting the student visa program might be used to maintain ongoing residence in Australia, a factor explicitly considered under Direction No. 69. Furthermore, the Tribunal found that the chosen course of study had limited value to the applicant's future career prospects in his home country, as he already held a Bachelor's degree in a related field.
Consequently, the Tribunal found that the applicant did not meet the criteria for a Subclass 500 (Student) visa, specifically the genuine temporary entrant requirement. The decision under review was therefore affirmed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The Direction is a lawful direction of the Minister.[14] The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[15] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, the Tribunal notes well established case authority as to the proper approach by decision makers to guidelines such as the Direction[16] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[17] [14] In accordance with section 499 of the Act. [15]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].[16]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).[17]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is a 40-year-old male Thai citizen who first arrived in Australia on 21 February 2014 on a student visa.[18] The Tribunal notes that the applicant lists his arrival as 19 August 2015 in the questionnaire. However, he has also provided a copy of an English certificate dated 11 July 2014 to the Tribunal. The Tribunal has proceeded on the basis that the applicant arrived in February 2014 as it considers the timing of the applicant’s study in Australia indicates that that arrival date is more likely. The applicant has remained onshore since his arrival on three further student visas.[19] [18]See the questionnaire and the delegate’s decision.[19]See delegate’s decision. Prior to coming to Australia, the applicant completed a Bachelor of Technology (Radio and Television) in 2005 in Thailand.[20] [20]See the questionnaire and the delegate’s decision. The applicant’s application which is the subject of this review was to undertake a Diploma and Advanced Diploma of Leadership and Management with a cumulative completion date of February 2022. Due to delays in this matter coming before the Tribunal, the applicant has now commenced and completed both of his courses.[21] The applicant has supplied a corroborating certificate in relation to his Diploma course and a transcript of results dated 3 December 2021 indicating he had competed ten units in his Advanced Diploma at that time. The Tribunal commends him in this regard which is very much to his credit given he has been residing onshore on a bridging visa, managing the uncertainty of the outcome of this application, during a Global Pandemic for the last two years. This is evidence that he is a genuine student and the Tribunal has placed weight in his favour accordingly.[21]See applicant’s response to the s359(2) letter and submissions of 31 January 2022.
Decision
Reasons for decision
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. Therefore, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.T. QuinnMemberAttachment – Direction No.69DIRECTION 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 2016Peter DuttonMinister for Immigration and Border ProtectionNote: 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 - PreliminaryName of DirectionThis 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.CommencementThis Direction commences on 1 July 2016.InterpretationAct 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) visaStudent Guardian visa means a Subclass 590 (Student Guardian) visa.ApplicationThis 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.PreambleThe 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; andb.the applicant’s immigration history; andc.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; andd.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 temporarilyPart 2 of Direction No. 69 - DirectionsAssessing the genuine temporary entrant criterion1.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; andb.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; andd.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 circumstances6.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 country9.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; ande.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 Australia11.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;d.whether 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; ande.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 future12.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; andb.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; andc.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 history13.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; andii.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; andiv.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-complianceIf the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant15.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 matters16.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.
Ratio Decidendi
Legal Principle Established
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