Ratana (Migration)

[2017] AATA 2397

Ratana (Migration) [2017] AATA 2397 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Wanyarat Ratana

CASE NUMBER:  1517268

DIBP REFERENCE(S):  BCC2015/3288061

MEMBER:Mark Bishop

DATE:8 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 08 November 2017 at 8:15am

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – Study  in many unrelated fields – Personal, family, financial affairs well managed in her absence – Good job offer – Family business in Thailand

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 572.223

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 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 to the Department of Immigration for the visa on 9 November 2015. The delegate decided to refuse to grant the visa on 11 December 2015. 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 because the applicant was using the Student visa program to circumvent permanent migration programs. Further the delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student in Australia temporarily.

4. The applicant appeared before the Tribunal on 27 October 2017 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 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. The Tribunal wrote to the applicant on 27 September 2017 requesting the applicant provide the following information (1) A copy of current Certificate of Enrolment (COE) (2) Documents that showed the applicant was currently enrolled in a course (3) Document that show past studies in Australia, attendance certificates, academic transcripts and certificates of completion and (4) An explanation of any gaps in enrolments and relevant documentary evidence.

11. The applicant complied with this request.

12. The applicant provided a detailed statement to the Tribunal.

13. The applicant provided a copy of the decision record to the Tribunal.

14. At hearing the applicant was:

    ·Given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as required by the Regulations;

    ·Informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Ministerial Direction No. 53 as relevant to the applicant and any other relevant matter;

    ·Informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are here for stay as a student, whether they are genuine, and whether they are for a temporary stay in Australia;

    ·Given an overview of of the considerations laid out in Direction No.53 as outlined above;

    ·Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the Tribunal hearing;

    ·Informed that all subclasses of the Class TU have equivalent ‘genuineness criteria’ and that if the criterion was not met, it would likely not be met for each of those subclasses.

15. The Tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Findings

16. Being reminded of the considerations laid out in Direction 53, the applicant was encouraged to identify factors and considerations which in the applicant’s view might or would incentivise the applicant to cease residence in Australia.

17. On the applicant’s evidence, and by reference to relevant considerations laid out in Direction 53, the applicant’s oral evidence and written material provided by the applicant to the Department and Tribunal, the applicant has had, and continues to have incentive to cease residence in Australia:

    ·The applicant has articulated the background circumstances to the applicant’s choice to study in Australia (written submission to the Department, written submission to the Tribunal and oral evidence);

    ·The applicant has for many years close family members outside Australia, including brother, sister, parents and cousins in Thailand;

    ·The applicant has a partner in Australia;

    ·The applicant has articulated a plan to utilise the skills, experience, knowledge and acumen gained in Australia in pursuits outside Australia. The applicant provided a detailed written business plan to open and run a restaurant in Thailand;

    ·Alternately the applicant gave oral evidence supported by written references of offers of employment in Thailand in an existing family business or in a proposed new family enterprise.

    ·She explained she came from a wealthy family as did her partner with significant assets in Thailand and her family supported her financially in Australia, particularly in the early years. She provided documentation of substantial cash assets in Thailand and advised the Tribunal of various property holdings.

    The applicant gave evidence that before coming to Australia in September 2009 she had already completed a Bachelor’s degree in Humanities and after graduation from University worked in a management capacity in an international restaurant chain in Thailand.

18. The applicant came to Australia proposing to study English as that was a critical prerequisite to gaining high salary employment in Thailand. At completion of her English language training and in consultation with her family she decided to enrol in a Certificate IV in Business and then a Diploma in Business. A reason for this further study was that her English language skills were not yet adequate to gain the position she sought in Thailand.

19. At the end of September 2011 the applicant graduated from her Business studies. She returned home and said she looked for employment. A priority was a higher salary. She could not obtain the high paying job. She advised the Tribunal her English language skills were not yet adequate.

20. The Tribunal for the first time raised the option of staying in Thailand and settling for a job with a lesser salary in the hospitality sector. She resisted this suggestion. The Tribunal pressed the point that everyone starts at the bottom and a desire for a high salary job was insufficient reason. Again the applicant resisted this suggestion saying there was significant family pressure to improve her English language skills in a foreign country.

21. The applicant returned to Australia and pursued further studies in initially a Diploma in Electronic and Communications and then a Certificate IV in a similar field leading to a Diploma in IT. After some 18 months the applicant had substantially completed the relevant Diplomas and acquired a set of new skills in demand in Thailand. At his stage the applicant decided the course/s was unsuitable and stopped studying.

22. The Tribunal again raised the issue of taking her new set of skills in English, Business and IT back to Thailand and gaining employment. The applicant strongly resisted this idea explaining she still had 6 months to run on her visa and she wanted to gain a further certificate.

23. Direction 53 indicates that reasonable changes to career trajectory should be accommodated.  On the evidence before the Tribunal the applicants study history is spread over many fields, most of which are unrelated in any substantive way. The applicant advised the Tribunal she took up her courses in Business and IT because of significant family pressure from Thailand. She felt for cultural reasons and out of respect for her mother little option but to comply with these requests.

24. The applicant down-played any suggestion that she had the capacity to pursue studies in a field of her choice. The applicant appeared to the Tribunal to be a capable, intelligent, well informed and independent minded woman. The applicant appeared to the Tribunal to be a woman of purpose. The Tribunal has some doubts the particular reason for pursuing study in a range of fields as outlined above is solely related to familial respect. The tribunal has some doubt as to whether the applicant is a genuine applicant for entry and stay as a student.

25. The Tribunal notes the applicant claims her career pathway has now changed because she is pursuing a career she now likes, rather than a career suggested by her parents. In this context the tribunal has regard to cl.12 (a) of Ministerial Direction Number 53. The Tribunal notes the applicant has been working in cafes and restaurants in both Thailand and Australia since 2008 as her own CV, references, job offers and detailed statement of 6 October 2017 outline. Mostly the pathway is well trodden.

26. The applicant spent the next two years in Australia studying marketing at a Diploma and Advanced Diploma level. All courses were conducted in English. In addition the applicant had significant work experience in both western and Thai restaurants as a cook, chef, and waiter and had considerable exposure to clients and customers alike.

27. The Tribunal suggested again to the applicant she now had a significant set of skills in English, Business, IT and Marketing. In addition the applicant agreed she now had significant work experience in both Thailand and Australia in the hospitality industry. The Tribunal suggested at the end of 2015 (after 6 years study in Australia) the applicant was well suited to gaining employment in her home country.

28. Initially the applicant informed the Tribunal she was unable to obtain employment in the marketing field in Thailand and now wanted to operate her own business. After further questions from the Tribunal the applicant said she had been offered a marketing position in a large book company in Thailand.

29. She rejected the offer because an employee informed her that the book business was in decline and at some unspecified time in the future she might lose her job. At this stage the applicant had a useful set of skills in English, Business, IT and Marketing. She had been offered employment in a field of her choice. She rejected the offer for the most nebulous of reasons.

30. The Tribunal asked the applicant exactly what she had achieved after 7 years residence in Australia. She agreed she had a set of skills sufficient to obtain employment in business management or marketing in Thailand. She said she had looked for employment and did not like what was on offer. In a nutshell she said she had spent her entire time in Australia studying in fields suggested by her parents not totally inconsistent with her own  desires to become more proficient in English.

31. The applicant then informed the Tribunal she wanted to own and operate her own business.

32. Instead of making her departure to action that plan of opening her own business the applicant proposed further stay and study in the form of a successive courses in Commercial Cooking (Certificate III and IV) leading to a Diploma and Advanced Diploma in Hospitality. The applicant explained she wanted to gain further experience and learn.

33. This package course of study in the hospitality is the fifth attempt at study in a different field. Asked why after all this time she desired to return to the hospitality industry having worked in that industry after graduation from University the applicant explained she had discovered she liked her work, it enabled her to think and she felt she could use her creative instincts.

34. The Tribunal notes these are generally regarded as features of employment and generally core elements of Business, Marketing and IT.

35. By September 2017 the applicant had concluded the bulk of her package of courses was well qualified as a chef and had significant exposure to hospitality management theory. In addition she had enjoyed continuous work as a chef and waiter in several Thai, western and fusion restaurants in Australia.

36. The applicant agreed she had a package of skills that would result in employment in Thailand. The applicant agreed with a suggestion from the Tribunal that she had sufficient knowledge, experience, qualifications and references to return home and gain employment.

37. Still the applicant resisted leaving Australia. She wanted to do further study in the field of hospitality management. She agreed she already had a Bachelor level degree, a Diploma in Business and many years of practical experience in the industry. Whilst the Tribunal acknowledges the applicant’s Bachelor level degree is in the field of Humanities, a university education is designed to provide a degree holder with skills in critical thinking and analysis that may be deployed to solve disparate challenges.

38. This level of critical thinking skills, significant exposure to VET education in different fields, many years of practical work in the hospitality industry in two countries at both management and vocational level, formal certificate level qualifications as a cook/chef and theoretical management training at Diploma level in the field of hospitality management suggest the applicant is more than qualified to the running of a restaurant.

39. Indeed the applicant’s own family now recognise her level of competence. The applicant provided to the Tribunal a copy of an offer of employment as a trainer in Commercial Cookery.

40. The offer of employment outlined her duties as starting with “basic foundation along to advance learning. She will prepare lessons how to create fine cuisine from scratch, as well as the cooking, serving and preparing aspects of the business. I was very impressed with her and strongly believe her attributes, including intelligence, interpersonal and multitasking skills will be significant asset for our family business”.

41. Still the applicant found reason to remain in Australia. She wanted to pursue further study in stir fry cooking and grill cooking and gain a further certificate at Advanced Diploma level.

42. The Tribunal notes the applicant has formal qualifications in “producing meat dishes, producing dishes using basic methods of cookery, working effectively as a cook, producing poultry dishes, producing and serving food for buffets and producing Asian cooked dishes.

43. The Tribunal is satisfied a person with many years’ experience working in cafes and restaurants in Australia and Thailand and formal instruction in cooking is capable of stir fry cooking and grill cooking.

44. The Tribunal notes the Advanced Diploma of Hospitality Management contains a range of core units and electives many of which the applicant has already studied and passed in her various other courses. A restaurant or café is a business and the applicant has both experience in a management capacity in a restaurant and a formal Diploma in Business. The Tribunal is satisfied that any gain from completion of the Advanced Diploma of Hospitality Management is marginal.

45. The applicant gave evidence that a brother, a sister and cousins and their families live in Thailand. The applicant has regularly returned to Thailand since coming to Australia in 2009.

46. As the evidence indicates the applicant over a substantial stay in Australia has been able to manage personal relations by living in Australia and regularly visiting Thailand. The applicant’s family have financially supported her for a long time. The family in Thailand still pays course fees. Members of the family have offered her worthy employment in a family company in Thailand. The applicant holds significant property and cash interests in Thailand. The Tribunal does not consider the applicant’s personal connections overseas to be a  sufficient incentive for the applicant to cease residence in Australia

47. The Tribunal certainly has some incentive to return to Thailand. However the Tribunal considers this incentive is outweighed by the fact her personal, family, financial affairs and level of funding in Australia are managed to her satisfaction in her absence.

48. The applicant had a very definite choice when her student visa was to expire in 2015. The Tribunal put to her that she had very clear incentives to return to Thailand and seek paid employment or open her own business. The applicant then had more than sufficient skills, knowledge, training, experience and qualifications to pursue either option.

49. Despite this, the applicant did not yield to her incentives to depart Australia. She applied for another student visa working in the same field she had worked in after finishing university in Thailand.

50. That is, in 2015, the applicant had every personal and professional reason to cease residence in Australia. Instead the applicant chose to pursue study in another different field. The applicant claimed she always intended to leave Australia. If that is and was so, the Tribunal finds the applicant would have departed Australia to set in motion her own plan to open her own business. 

1. In 2017, again, the applicant has every personal and professional reason to cease residence in Australia. She had built on her skill set from 2015. She has more reason than in 2015. She has an additional set of formal qualifications and more years of experience working in the industry. She has an offer of a good job as a trainer at a high salary in a family business in Thailand.

2. The Tribunal is of the view that at regular intervals (2011, 2013, 2015 and 2017) the applicant had sufficient skills, training, experience and acumen to leave Australia and gain employment in Thailand. These dates are significant. Each date represents a time when the applicant had concluded a major course of study. On each occasion the applicant sought to enrol in different courses with the primary view of continuing residence in Australia

3. The Tribunal is of the view that the desire to pursue the Advanced Diploma of Hospitality Management is a continuation of the same plan. As already discussed the Advanced Diploma of Hospitality Management will provide the applicant with marginal gain and little of substance.

4. For these reasons the Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily.

5. 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).

6. 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

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

   Mark Bishop
   Member