Pluempridaphorn (Migration)

[2019] AATA 2207

Pluempridaphorn (Migration) [2019] AATA 2207 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arunocha Pluempridaphorn

CASE NUMBER:  1723116

HOME AFFAIRS REFERENCE(S):           BCC2017/2824697

MEMBER:Warren Stooke AM

DATE:1 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 March 2019 at 4:46pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – member of a family unit – multiple courses completed – significant gaps in study progress – repetition of subject areas – overall academic progress –relationship not declared in previous applications – little incentive to return to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
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 16 September 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 8 August 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 applicant has been using the student visa program to prolong their stay in Australia and they do not intend to stay in Australia as a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 21 February 2019 to give evidence and present arguments.

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

6. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

7. The applicant confirmed to the Tribunal that he had a copy of the delegate’s decision and had read the decision. He stated that the delegate’s reason was the refusal of my partner’s visa.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 temporary entrant for entry and stay, as a member of a family unit.

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

10. Clause 500.312 requires as follows:

          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, 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?

11. 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.

12. 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.

13. The applicant is a 37 year old from Thailand, who was granted an initial Student (Class TU Subclass 570) visa on 29 September 2010 and arrived in Australia on 20 October 2010.

14. Pursuant to s359AA, the Tribunal provided the applicant with a copy of the Provider Registration and International Student Management System (PRISMS) record pertaining to the applicant’s scope of studies since arriving in Australia and identified that the applicant has previously been enrolled in the following Course(s).

    ·8985B887 Advanced Diploma of Business

    ·81E2CD14 Diploma of Business

    ·679C7A94 Advanced Diploma of Information Technology Business Analysis

    ·7741BF56 Diploma of Business

    ·77419E98 Certificate IV in Business

    ·679C6639 Diploma of Website Development

    ·679C5273 Certificate IV in Information Technology

    ·5D7C3C91 Diploma of Business

    ·5D6F7A48 English for Academic Purposes (Intermediate to Advanced)

    ·5D71FB74 English for Academic Purposes (Intermediate to Advanced)

    ·48BE1B99 Diploma of Management

    ·486E1616 Certificate IV in Marketing

    ·48BE1127 Certificate III in Business

    ·48BE0663 English Language Programs (Beginner to Advanced)

    ·42B3AC19 General English (Beginner to Advanced)

15. The Tribunal explained to the applicant the relevance of the PRISMs record and offered additional time to comprehend the content. Further, the Tribunal established with the applicant that the applicant had not participated in any studies between 11 October 2013 and 30 June 2014 (a period of 8 months); 6 June 2015 to 15 October 202015 (a period of 4 months); 29 April 2016 to 11 July 2016 (a period of 2.5 months) and had not studied since 5 September 2017, which is a period of 1 year and 4 months, whilst holding a Bridging Visa. In this regard, the Tribunal acknowledges that there is no obligation placed upon the applicant to participate in studies whilst on a Bridging Visa, but the Tribunal notes the applicant had permission to study during this period.

16. The applicant was asked by the Tribunal when he intended to return to Thailand and he responded that he would be leaving “next month”, as the applicant had finished his relationship with his partner. On the basis of this response the Tribunal asked the applicant if it was his intention to withdraw his application or to continue with the hearing of his case and he responded that he would continue with the hearing of his case.

17. The applicant stated that he was working for 5 hours per week in a massage parlour in Sunshine and that he was paid remuneration of between $350 and $400 depending upon the generosity of the clients.

18. The applicant confirmed to the Tribunal that he does not have family in Australia and that he shares with his partner and that they are still living together.

19. The applicant stated that his parents in Thailand are divorced and that he has no contact with his father and his mother is retired. The applicant stated that he does not have any siblings.

20. The applicant gave evidence that he wanted to study at university but the agency had advised that he could not apply because he had been a long time here.

21. The applicant, in response to the question as to whether there was any reason to preclude him from returning to Thailand, stated that he had “not much family there”. He said that he had previously lived in South Africa and he left South Africa with residual issues that may result in those people following him on return to Thailand. In this regard, no detail was offered to the Tribunal regarding the circumstances of this issue.

22. The applicant confirmed that he had completed an English course; Diploma in Marketing; Diploma in Business; Certificate IV in Business; Certificate IV in Information Technology and Diploma in Management and Marketing.

23. The applicant stated that he had previously worked in administration in an office and that he did not know what to do when he went back to Thailand, but he would get some job.

24. The applicant was asked if it was his motivation to stay in Australia permanently and he responded – “Yes I do, but I think it is difficult and I have no chance.”

25. The Tribunal notes that the applicant lodged his visa application on 8 August 2017 shortly before the then current Student (Class TU subclass 572) visa expired on 9 August 2017.

26. The applicant was offered the opportunity to make further comment and the hearing concluded without any further comment.

27. In considering whether the applicant met the genuine temporary entry criterion the Tribunal has had regard to the factors, consistent with clause 500.312 and Ministerial Direction No 69 and these factors have been used to weigh up the applicant's circumstances as a whole, in reaching a finding about whether they satisfy the genuine temporary entrant criterion. These considerations include:

    (a) The applicant has had significant gaps in his study progress that have not been the subject of a formal application and deferral grant. As such, the applicant is in breach of 8202 (enrolment/course progress/course attendance) and 8516 (continue to satisfy criteria);

    (b)The courses undertaken by the applicant have been in the VET sector and were of limited duration and at low cost. As such, the Tribunal is not satisfied that the applicant has made significant progression in the courses undertaken to proceed beyond the VET sector. Also, the repetition of subject areas would suggest to the Tribunal that the applicant is using the study stream to maintain residency rather than to pursue any career objective. This finding was supported by the applicant’s inability to state what he would do upon return to Thailand, where no specific career option was enunciated by the applicant;

    (d)The Tribunal concurs with the delegate’s assessment that the applicant is using the student visa programme for purposes of securing a further visa rather than due to a genuine interest in study and overall academic progress. In this regard, the applicant stated he intended to return to Thailand next month and did not outline any intention as to his future intentions for a career or otherwise;

    (e)The applicant confirmed that he has no strong ties to his home country and a motivation to remain in Australia, but stating he had no chance. As such, the Tribunal is not satisfied that it is the intention of the applicant to leave Australia, after almost 9 years of residency, which is a considerable period of time given that no career of future aspirations post study have been put to the Tribunal. This evidence confirms to the Tribunal that the applicant is using the visa stream to maintain residency;

    (f)The Tribunal considers that the applicant's de-facto relationship claims, which they have indicated they had been together for "many years", however Departmental and Tribunal records indicate that the applicant did not declare a relationship in the previous visa applications until lodgment of this application on 8 August 2017. The Tribunal, therefore has concerns on the bona fides of this relationship and the Tribunal holds the view that the applicant has lodged this visa application only in order to secure a student visa, as a member of a family unit to maintain ongoing residence in Australia and that the applicant does not genuinely intend to stay in Australia temporarily.

28. The Tribunal has considered the applicant’s immigration and study history, which does not show continuity or academic progress, against the original visa objective. As such, the Tribunal is not satisfied that the applicant is a ‘genuine applicant for entry and stay’ in Australia, as a member of a family unit. The Tribunal notes that the status of the relationship has not been estabished

29. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily, as a member of a family unit. Accordingly, the applicant does not meet cl.500.312(a).

    Does the applicant intend to comply with visa conditions?

30. For the applicant to meet cl.500.312(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

31. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

32. The Tribunal regard’s the applicant’s past performance and breach of visa conditions as not commending the applicant to be likely to comply with future visa conditions. In this regard, the applicant discontinued studies with significant gaps between engagements in courses of study. The Tribunal finds that the applicant is not a genuine temporary entrant, as a member of a family unit, as required under the Migration Act 1958.

33. On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.312(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

34. For the applicant to meet cl.500.312(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.312(a) and (b)).

35. The applicant raised in the hearing an alleged concern that he may be followed upon return to Thailand, by unspecified parties with whom he had dealings with in South Africa. The Tribunal has considered this assertion and does not give it any weight in the overall balance, when addressing whether the applicant is a genuine temporary entrant. As such, the Tribunal is satisfied that the overwhelming evidence is that the applicant has used student visas to prolong residency in Australia and with the elapse of almost 9 years since the applicant arrived in Australia and the lack of ties to the home country, the applicant’s assertion regarding being followed, is not accepted by the Tribunal as having any credibility.

36. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a member of a family unit because the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

    Conclusion on cl.500.312

37. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a member of a family unit, as required by cl.500.312.

38. 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

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

    Warren Stooke AM
    Member

    DIRECTION 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 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: 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 - Preliminary

    Name of Direction

    This 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.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act 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) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This 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 eithis a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The 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; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any othis relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whethis 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 temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.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 whethis the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whethis, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any othis relevant information provided by the applicant (or information othiswise available to the decision maker).

    3.Decision makers may request additional information and/or furthis evidence from the applicant to demonstrate that they are a genuine temporary entrant, whise closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances whise furthis 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 furthis 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; and

    d.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 othis relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.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 country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whethis the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available thise. Decision makers should allow for any reasonable motives establihed by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whethis 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; and

    e.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 othiss in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    c.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    d.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    e.whethis the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    f.whethis the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Whise 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; and

    g.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 future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whethis the student is seeking to undertake a course that is consistent with their current level of education and whethis 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; and

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

    c.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 history

    13.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 othis countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whethis 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; and

    ii.if the applicant has previously applied for visa(s) to othis countries, whethis the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or othis countries, including: i. if the applicant previously travelled to Australia, whethis they complied with the conditions of their visa and left before their visa ceased, and if not, were thise circumstances beyond their control;

    i.whethis the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    ii.the amount of time the applicant has spent in Australia and whethis the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whethis the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iii.if the applicant has travelled to countries othis than Australia, whethis they complied with the migration laws of that country

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.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 othis relevant matters

    16.Decision makers should also have regard to any othis relevant information provided by the applicant (or information othiswise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be eithis beneficial or unfavourable to the applicant.