Poowang (Migration)

[2018] AATA 608

Poowang (Migration) [2018] AATA 608 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Papawadee Poowang

CASE NUMBER:  1621762

DIBP REFERENCE(S):  BCC2016/2001555

MEMBER:Warren Stooke AM

DATE:2 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 02 March 2018 at 8:51am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether the applicant genuinely intends to stay in Australia temporarily – Lack of academic progress – Repetition in courses – Adverse migration history – Time spent in Australia unlawfully

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 2, cl 572.223(1)(a)

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 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 9 June 2016. The delegate decided to refuse to grant the visa on 30 November 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations. The delegate found that the applicant had been in Australia for an extended period of time without demonstrable academic progress, participated in a series of repetitious courses, showed a lack of clear and solid education plan relative to the stated goals, participated in low level and low cost courses, had not maintained an appropriate connection with the home country and that the applicant was not a genuine temporary entrant having extended the study plan for the purposes of the visa application only in order to secure a student visa rather than due to a genuine interest in the area of study and overall academic progress.

4. The applicant appeared before the Tribunal on 28 February 2018 to give evidence and present arguments. The applicant sought to have Ms Ward, sworn in as a witness, which the Tribunal agreed to accept, given that Ms Ward was unable to represent that applicant, as she is not a registered migration agent. 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 decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

7. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)     the Minister is satisfied that 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)     …

8. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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 to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. At the commencement of the hearing the Tribunal confirmed that the applicant had provided the Tribunal with a copy of the delegate’s decision of 30 November 2016 with the application for a review of the decision, had read the decision and understood the content of the decision.

11. The applicant provided the Tribunal with an explanation, as to her understanding for the refusal of the visa application by the delegate, including the long term stay in Australia and gaps in the periods when study was undertaken.

12. The applicant is a 32 year old from Thailand, who lives in Caroline Springs and has been studying in Australia since 18 January 2011.

13. The applicant advised the Tribunal that she had a current certificate of enrolment to undertake an Advanced Diploma in Hospitality Management, as a full-time student.

14. The Tribunal notes from the decision of the delegate and the PRISM’s record, which was provided to the applicant pursuant to s359AA for comment, that the applicant has undertaken a myriad of different hospitality streams since commencing studies in January 2011. The following schedule provides an overview of those courses:

    ·English for General Purposes (Beginner to Upper Intermediate) 2-50 weeks

    ·General English

    ·Certificate III in Hospitality (Commercial Cookery)

    ·Certificate III in Hospitality (Patisserie)

    ·General English (4-52 weeks)

    ·Advanced Diploma of Hospitality

    ·Certificate III in Commercial Cookery

    ·Certificate IV in Hospitality (Commercial Cookery)

    ·Certificate IV in Commercial Cookery

    ·Certificate III in Hospitality

    ·Certificate IV in Hospitality

    ·Diploma of Hospitality, and

    ·Advanced Diploma of Hospitality

15. The applicant provided oral evidence that she had first studied patisserie and then changed to cookery to help with the original studies. She then changed to hospitality, as she felt she had too much cookery.

16. The applicant confirmed to the Tribunal during a review of the PRISMs record that she had not taken part in any study between 22 February 2013 and the 14 July 2013, which was a period of almost 5 months. The only reason given by the applicant for this non study period was that she had finished with Holmesglen and then had a gap.

17. The applicant advised the Tribunal that the purpose of the studies was to build a resort in her home country, against the background that the Thai authorities were promoting business opportunities. The applicant confirmed that she has no business plan and has not applied for any jobs.

18. Evidence was provided that studies and qualifications from Australia were highly regarded overseas.

19. The applicant informed the Tribunal that she intended to return to Thailand in March 2019, when she finished the current course, as “these courses will be enough”.

20. The delegate noted in the decision that the applicant had departed Australia on two occasions since arriving in Australia for a period of 154 days. And that the applicant did not hold a valid visa between 2 March 2015 and 23 March 2015. Since, the delegate’s decision the applicant informed the Tribunal that she had returned to Thailand from 16 February to the 26 February 2018, which brings the total period of departures to 164 days in the 7 years since arrival in Australia. The applicant advised the Tribunal that she has Australian resident friends that she has met through her auntie, who is an Australian resident, living in Packenham with her husband, who is also an Australian resident.

21. The applicant gave evidence that she is supporting herself through part-time work, as a kitchen hand and is paid $18.00 per hour, plus superannuation, for not more than 20 hours work per week. The part-time work was advised to be both to support herself and to get some experience.

22. The applicant provided evidence to the Tribunal that both her mother and father are Thai government officials and that she has two younger brothers, who all live in Thailand. Both parents will be recipients of pensions from the government when they retire.

23. The applicant provided a written submission that apprised the Tribunal of some prior emotional issues concerning the relationship between her parents in the period 2014 to 2016, which gained support from the school the applicant was attending regarding internal counselling. The applicant advised in that submission that the family is now “back to the peace”.

24. The statement also included the following, which the Tribunal has considered in its deliberations:

    “As I was holding a bridging visa A during the appeal process. I was not sure if I re-enrol in the course. I kept self-studying and practicing in Commercial Cookery. I successfully passed the assessment for my application for the RPL, and obtain Australian qualifications for Certificate Ill in Commercial Cookery in September 2017, and Certificate IV in Commercial Cookery in November 2017.”

    “I believe that I have been a genuine student. My future is to complete the Advanced Diploma course and return to my family with my husband and we both will contribute in our family's resort business on our land of 11 Rai in Nong Khai, Thailand.”

25. The applicant advised the Tribunal that her only ties in Australia are her aunt and uncle, who have been in Australia for more than 10 years and enjoy residency status.

26. The applicant confirmed in evidence that in terms of returning to Thailand that she “should not have a problem”.

27. The applicant also confirmed in evidence that it was not her motivation to remain in Australia permanently and that there is not any reason that would preclude the applicant from returning to Thailand.

28. The applicant stated to the Tribunal – “if I go back the resort plan may be impacted”, and she stated that she had no substantial business to support her parents, however, it was confirmed evidence that her parents have government official jobs and a future pension, which the Tribunal notes contradicts this assertion.

29. The Tribunal provided the applicant with an opportunity to put any other information to the Tribunal and the applicant asked that she has a “chance to finish the study”.

30. The witness for the applicant declined to provide any comment to the Tribunal.

31. The myriad of courses undertaken by the applicant, with repetition in essentially the same discipline, within the low level VET sector and at low cost, leads the Tribunal to the conclusion that the applicant has been using the student program to maintain residency and to circumvent the alternative permanent residency programs. The lack of substantive academic achievement over a period of 7 years reinforces this conclusion.

32. The Tribunal is also satisfied that the abstention from study between 22 February 2013 and the 14 July 2013 demonstrates that the applicant is not serious about her study and attaining the stated objectives. In this regard, the Tribunal has considered the written material regarding the domestic circumstances of her parents in the home country and legitimately questions why the applicant did not return to the home country, if the concerns were that substantive. The evidence has shown that the applicant only departed Australia for a total period of 164 days in the 7 year period on three occasions only, which is also not the expected behaviour of a genuine temporary entrant.

33. As noted in the delegate’s decision, which was confirmed by the applicant in evidence, the applicant remained in Australia as an unlawful non-citizen for a period of 20 days between 2 March 2015 and 23 March 2015. The Tribunal agrees with the comments of the delegate that “this demonstrates a lack of consideration, adherence to and respect of the Migration Regulations”.

34. The Tribunal is concerned that the applicant has immediate family with Australian residency and that this is a significant tie that would discourage the applicant from returning to her home country, despite the fact that there are no stated reasons to preclude the applicant from returning to her home country, which was confirmed in evidence.

35. The applicant has claimed that the current Advanced Diploma in Hospitality, if not completed, may have an impact upon her future plan to build a resort in her home country. The applicant confirmed in evidence that she has no business plan to support this contention and accordingly the Tribunal is satisfied that the alleged plan, if real, could be executed on the basis of the contemporary qualifications held by the applicant in hospitality management.

36. The Tribunal is not satisfied that the behaviours exhibited by the applicant, since arriving in Australia on 18 January 2011, are consistent with the behaviours expected of a genuine temporary entrant and that the applicant is using the Student visa education program to circumvent permanent entry programs available for that purpose. Further, the Tribunal is satisfied on the evidence that there are no advised reasons that would impact upon a decision which would require the applicant to return to Thailand, in the context of Direction 53.

37. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

38. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Warren Stooke AM
    Member