Sakda (Migration)

[2019] AATA 1665

Sakda (Migration) [2019] AATA 1665 (1 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Passarawadee Sakda
Mr Suthat Naosuk

CASE NUMBER:  1712723

HOME AFFAIRS REFERENCE(S):           BCC2017/784841

MEMBER:David Barker

DATE:1 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 01 February 2019 at 3:42pm

CATCHWORDS
MIGRATION – Student (Temporary)(Class TU) – Subclass 500 (Student) – genuine temporary entrant – gaps in enrolment –economic incentive for seeking to maintain residency – skills and qualifications not essential to future employment or business – lack of academic progression – consistently studied at lower academic level– using student program to maintain ongoing residence for economic reasons – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994, Schedule 2, r 1.12, cls 500.211 to 500.218

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 29 May 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 28 February 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they were not satisfied the applicant intends to stay in Australia temporarily.

4. The applicants appeared before the Tribunal on 17 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicants were assisted in relation to the review by their registered migration agent.

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

   Background

7. The applicant is a national of Thailand and is 32 years old. The second named visa applicant, her husband, is also a national of Thailand. He is 31 years old.

8. The Department delegate’s decision record, a copy of which was provided with the review application, states that the applicant came to Australia in December 2012 on a Subclass 570 Student visa to undertake a General English course. The delegate noted that the applicant has been since then granted another student visa and has completed a Certificate IV in Marketing, Diploma of Marketing and Advanced Diploma of Marketing. The delegate noted that at the time she applied for the Subclass 500 (Student) visa in February 2017, the applicant proposed to study a Diploma and Advanced Diploma of Leadership and Management.

9. A written statement addressing genuine temporary entrant issues, which was provided to the Department with the visa application, stated:

   My name is Passarawadee Sakda and my husband is Suthat Naosuk. We are writing this letter because I am determined to further study Diploma and Advanced diploma of Leadership and Management at Australian Academy of Commerce. The course structure fits my career aims. Studying this program can help organization to achieve goals efficiently which would facilitate my career progression. The knowledge gained from this program would support me as a Department Manager and would also support me to lead and manage my family business in the future. I’m interested in the importance of management. The success of the companies can be measured, resource productivity can be utilized, and quality of life for employees can be improved. The skills gained from this business program are likely to include:

   ·     Manage people performance

   ·     Identify and evaluate marketing opportunities

   ·     Manage quality customer service

   ·     Interpret market trends and developments

   ·     Manage risk

   ·     Ensure a safe workplace

   ·     Manage operational plan

   ·     Undertake project work

   ·     Manage recruitment, selection and induction processes

   ·     Develop and use emotional intelligence

   I choose to study at Australian Academy of Commerce College because it can providing me the expected knowledge and the duration of course is suitable. Education system in Australia is known for world-class education system. The classroom environment would maximize students’ creativities and provides open discussion whereas the classroom environment in Thailand is totally different. Students memorize the books and take most of time reading and listening to the teachers in order to pass the examination. It affects the stress for me. Australian education is a great education system which perfectly combines multicultural environment. It would open another world for me, and would make me get a good experience. It promotes my academic talents and also makes a great opportunity for my career. I would have more confidence and social skills.

   In Thailand there is a high competition rate of employment, which recruit high-performance employee. This course (Diploma & advanced diploma of leadership & management) is very important for working as a Department Manager, which has a significant role in organization management. Most companies in Thailand also prefer employees who graduate overseas.

   Studying in Australia makes it easier to climb into management-level positions with higher salaries compared to studying in Thailand. It contributes a good connection with others when I expand my business. Australian education system will promote my leadership, decision-making skill and confidence. Our significant ties to my home country are work employment and our two-year-old son which my mom are taking care of. Our parents are very old and all of my big family members are in Thailand.

10. On 11 September 2018 the Tribunal wrote to the applicant inviting her to attend a hearing on 17 October 2018. That invitation among other matters, requested the applicant to provide an explanation of any gaps in her enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether she intends genuinely to stay in Australia temporarily as required by cl.500.212(a) and asked her to provide a written statement addressing this issue by referring to Direction No.69, which was attached.

11. Prior to and at the hearing the Tribunal received documents from the applicant including:

    ·     evidence of her current and past academic study in Australia;

    ·     evidence of her business interests in Thailand;

    ·     travel records;

    ·     a birth certificate for the applicant’s son, born 12 March 2015 in Randwick, NSW;

    ·     photographs;

    ·     evidence of financial remittances sent by the applicant from Thailand to Australia; and

    ·     a written statement from the applicant.

12. The written statement from the applicant stated:

    I graduated from Suan Dusit Rajabhat University in Thailand with Bachelor of Business Administration course (Business Computing). After graduating, I have been working with Royal Thai Army Radio and Television from 1 Oct 2007 to 20 December 2012 as a Marketing Officer.

    By time passing, Thailand upgraded all Analog TV to Digital TV national wide. All companies are restructured and reduced their workforce size. The employment became very competitive. I was hesitated with my future. At the same time, the company I formed with my elder sister's business is doing well. I started thinking to further my study for my future. Both me and my sister want me to learn more advanced management and marketing skills to manage and expand our business. This is the whole purpose of coming down to Australia to study.

    Comments on the refusal record:

    Why have I gone back to Thailand during my study very often?

    Although I completed my undergraduate study in Thailand, I found studying in Australia very challenge to me. It took me more than half year to study English before I was ready to study my main course. I was very busy with my study. Then in 2015, I found myself pregnant with my partner. After giving birth my child, I had to breastfeed him for 6 months. I became busier and was running around among my place, school and hospital. I was luckier to have my partner to support and look after me. My husband thought I was the one benefits more from study. So he sacrificed his own study plan to support. I did not go back for holiday because I want to concentrate to learn from my course. I felt overloaded, therefore I applied for study break and took my baby back to Thailand during. Then I left her to my parents to look after so I can catch up my study.

    Another consideration is finance. Ticket from Australia to Thailand will cost no less than 800 dollars. I do not want to waste money to pay for the ticket. And travelling on plane for hours is not an enjoyable thing for me. I tried to avoid it.

    I booked a ticket to go back to see my son before the visa refusal. However, I postponed the ticket when my visa was refused. I managed to travel on September 2017 on Bridging Visa B.

    I also would like to address that the business in Thailand. The case office concerned that I did not go back to look after my business. As shown on the business documents, I am only one of the owners. My sister is holding majority of the share. She is looking after the business. I am planning to open new branch after my study.

    Why I did not choose to study in higher education.

    First, I want to study practical knowledge. In my opinion, postgraduate course is for people who would like to do research. I want to learn very practical and applicable skills and knowledge. For example, one of the subjects I choose in my Diploma of Leadership and Management course is Lead and manage team effectiveness. Before choosing this course, I am very interesting to learn this subject. Although I have been working in Thailand for five years, I still have so many questions about how to manage a team using rules and procedures. In my previous workplace, my managers used a lot of his personal emotion and preference. It created so many troubles. I was very struggling to cope with this. And my study in bachelor course did not teach me that. I keep thinking if I am going to manage my own business, how I can manage in a better way than his. In my course, I also did receive training in the real industry environment.

    Second, I was not sure whether I can handle postgraduate study. When I was studying English at the first place, I thought about studying master. But I realized very soon I should not rush into studying master course. On one hand, my English is not good enough. On another hand, I am not familiar with Australia teaching method. And I talked to teachers and classmates, I found that postgraduate course will not meet my goal to learn hands-on experience. In fact, my study in both Australia Pacific College and Australia Academy of Commerce met my expectation.

    I enjoy studying in Australia Academy of Commerce. The school is very strict. The teachers are very experienced and friendly. They like to share their real work story with us. They taught us not only knowledge on books, also experience in real life. I learn how to do marketing plan, design incentive program to motive employees, managing customer service and so on.

    I have never missed class and I completed all the course in Australia previously. And I am having satisfying academic performance and attendance in my school.

    My intention to go back to Thailand

    The case officer concerns my intention to go back to Thailand. I would like to prove my intention and plan to go back to Thailand.

    Firstly, I have not advantage in Australia. Although I have been studying here for years, I do not think I can compete with local candidates. I am not a native speaker. My experience in Thailand Is not transparent to Australia workplace. I tried to look for part-time job here and I did not success. If I go back to Thailand, I can be very successful.

    I plan to expand the business. I will manage my company using knowledge I learn from here. And I will be a person who can speak fluence English, who are educated in foreign country, who have working experience in national well-known company. I have beautiful blue print in the front of me in Thailand not in Australia.

    Second, my sister, my five brothers, my parents and my child are all in Thailand. I have not relatives here. I only have my partner who is attached to my visa. I missed my child a lot. I video him every day. He grows up in Thailand. He is now studying in early childhood centre. He is very happy there. I have no plan to bring him to Australia to struggle coping with new environment. I promised him I will go back after I complete my study.

    Conclusion:

    I would like to claim that I am a genuine student. Since arriving Australia, I have never breached any visa conditions. I completed all my study successfully. I will return to Thailand with my husband to expand my business and reunite with my son and family. I would like to ask the Member to send my application back to Department of Home Affairs, so I can finish my advanced diploma. I applied for exemption, so I am planning to complete my Advanced Diploma in 2020.

13. The Tribunal gave the applicant time following the hearing to provide further documentary evidence and submissions for the Tribunal to consider before a decision was made in this matter, including financial documents to support her claims in relation to her and the second named visa applicant’s income earnings in Australia.

14. On 29 October 2018, the Tribunal received account statements from bank accounts held jointly and separately by the applicant and the second named visa applicant with the Commonwealth Bank (CBA).

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 intends genuinely to stay in Australia temporarily.

16. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student 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?

17. In considering whether the applicant satisfies cl.500.212(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.

18. 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.

19. With regard to whether the applicant has sound reasons for not undertaking the study in her home country or region if a similar course is already available there, I accept that there is a vocational benefit to the applicant from her developing fluency in a second language, such as English and that this may be of benefit to her future employment or business ventures in her home country. I am not however satisfied that the applicant has demonstrated the lack of availability of a similar leadership and management program in Thailand.

20. With regard to the extent of the applicant’s personal ties to her home country and whether they would serve as a significant incentive to return to her home country, I am satisfied that the applicant has strong familial ties to her home country and also some business interests there. Her son is in the care of her mother and elder sister. She has numerous siblings in Thailand and also is a partner in a business on-selling government lottery tickets, which her elder sister is also involved with. She also has a significant familial connection to Australia, as she is residing here with her husband. However, I am satisfied her cumulative ties to Thailand provide her with an incentive to return there at some stage.

21. With regard to the economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to her home country, I have a concern, when the difference between the Thai and Australian economies is taken into account, because of the relative earning capacity the applicant and second named visa applicant have in these respective countries, that the applicant may have an economic incentive for seeking to maintain her residency in Australia.

22. In response to my putting this concern to her during the hearing, the applicant said she was single when she came to Australia and one of ten children in her family. She said that she and her husband reside in rental accommodation in the Sydney CBD and that he works as an Uber driver whilst she studies and works for 15 hours per week. She said that she worked in a Thai restaurant for a year and a half and since she returned to Australia after taking her son to be cared for by her family in Thailand in 2015 she has worked as a barista earning a net weekly income of between $350 and $400 per week. She said her husband earns around $1,000 per week as an Uber driver and that before that he worked as a chef in the Thai restaurant in St Ives where she used to work.

23. She said that her parents gave her some land, which she wants to sell so as to expand her business opportunities in Thailand. She said her sister and other family members continue to support her studies in Australia by sending her money, as her and her husband’s income does not fully cover education costs and their combined living expenses. The applicant gave evidence that her elder sister operates a factory that employs 500 staff. She said that ‘Thason Ltd’ is a business which on-sells government lottery tickets. She said that she and her sister have two other partners in this business. In her written statement, the applicant states her sister is operating the business whilst she is in Australia and that she will open a further branch of the business when she returns to Thailand.

1. I have reviewed the bank records provided by the applicant following the hearing, to determine the extent to which they support her contention she does not have an economic incentive for seeking to maintain her residency in Australia:

   ·The CBA account held in both the applicant and second named visa applicant’s names shows funds transferred between this account and other accounts. There is no information which sheds light upon the reason for these transactions and there is no indication the joint account is used to pay for any regular living expenses;

   ·The applicant’s husband’s individual CBA account shows deposits of around $7,395 in June 2018, $7,438 in July 2018, $7,967 in August 2018, $5,431 in September 2018 and $5,565 in the period from 1 October 2018 to 17 October 2018. Whilst not all of these deposits are earnings from his work as an Uber driver and some small amounts are identified as gifts, it is apparent that the second named visa applicant’s weekly income is higher than the amount claimed by the applicant during the hearing;

   ·The applicant’s individual CBA account supports her claim with regard to her earnings from part-time employment. There are also transactions between this account and accounts with the descriptors ‘avi’, ‘Nong’ and ‘da’. There is no information which sheds light upon the reason for these transactions or who or what the descriptors refer to. There are also periodic cash deposits into the applicant’s account;

   ·Remittance receipts provided with the review application indicate an amount of 204,420 Thai baht (current Australian equivalent $9,009.46) on 12 July 2017 and a further amount of 200,000 Thai baht (current Australian equivalent $8,815.60) were remitted to the applicant on 9 December 2017. It is not apparent from these documents who remitted these funds from Thailand;

   ·A letter from a financial institution, Mwing, states the applicant transferred funds from Thailand to Australia, amounting to $3,623.15 on 6 December 2014 and $5,905.51 on 19 March 2015.

2. The remittance receipts provided with the review application appear to provide some support with regard to the applicant’s claim she has received some financial support from Thailand during 2017. It is not clear from these receipts who remitted the funds to the applicant, but I am prepared to accept her claim it was members of her family. The document from “Mwing” in my view does not support the applicant’s claim with respect to this issue, as it would appear to indicate the applicant was the source of funds remitted to Australia in late 2014 and early 2015. It is not apparent from the banking records that the applicant has received any financial support from relatives in her home country in the periods during 2018 covered by these records. I acknowledge there are transactions between accounts, but there is no clear basis to be satisfied that these transactions reflect funds sent to the applicant by relatives in her home country to support her education or regular living expenses in Australia. There are sufficient transfers from the parties’ accounts held separately and jointly to other unidentified accounts to raise the concern that the parties may be accumulating savings in those accounts.

3. After considering the available evidence, I am not persuaded it demonstrates the applicant and her husband are at the present time reliant on financial support from relatives in their home country. I acknowledge the applicant and her husband do not appear to have high cumulative employment earnings by Australian standards, but if their relative earning capacity in their home country is taken into account, I have a concern their employment earnings here are higher than they would be earning for equivalent employment in Thailand. I am satisfied this higher earning capacity and the potential savings the parties may be accumulating in Australia provide them with an economic incentive for maintaining their residency in Australia.

4. With regard to military service commitments that would present as a significant incentive for the applicant not to return to her home country, or concerns with regard to political and civil unrest in her home country, I accept that neither the applicant nor the second named visa applicant have any such concerns.

5. With regard to whether the primary and secondary applicants have entered into a relationship of concern for Student visa purposes, I am aware of no evidence which would raise concern with respect to this issue.

6. With regard to whether the applicant is seeking to undertake a course of study that is consistent with her current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in her home country, I invited the applicant to comment on the delegate’s concern that it was not apparent why she needed to undertake more studies in Australia after completing a Certificate IV, Diploma and Advanced Diploma of Marketing. The applicant gave evidence that she initially only wanted to study in Australia for six months, but after completing the initial English language course, she considered her skills in English to not be adequate and she decided to study further. The applicant said that her elder sister, who is her mentor, advised her to do a business course and that this encouraged her to study the marketing courses. The applicant said that after she completed the marketing courses she spoke to her sister again, who advised her that there would be a benefit from her studying leadership and management. The applicant essentially contends that at each point she has achieved a previously identified study goal she has been persuaded by her elder sister to undertake further study and I do not find this explanation persuasive.

7. As to the applicant’s lack of academic progression, given she has consistently studied at a lower academic level in Australia than the higher education sector qualifications she previously achieved in her home country, I note her contention she perceives value from the more skills-based learning available through vocational-level courses and her concern as to her capacity to undertake post-graduate studies. I accept this may have been relevant to the general English and marketing courses which she has studied whilst in Australia, but I am not persuaded she has demonstrated why undertaking her current leadership and management course was preferable to consolidating her higher education qualifications through undertaking a course such as a Master of Business Administration, given she has a Bachelor of Business Administration qualification.

8. The applicant said she met her husband in May 2014 and discovered she was pregnant in August 2014. She said she and her husband decided she should focus on her studies and as a consequence he stopped studying. She said they were married in November 2014 and that she gave birth to their child in March 2015. She said it was difficult for her to both look after her child and study and that they decided to get her family in Thailand to care for their child.

9. In response to the delegate’s concern that notwithstanding her child in Thailand and her business interests there in Thason Ltd, and that her enrolment in a course that would not be completed until 2021 does not display a strong incentive to return to Thailand, the applicant gave evidence she got credits for some subjects and intends to finish her course and return to Thailand in 2020. She said her elder sister has encouraged her to complete her current study and is financially supporting her whilst she studies in Australia.

10. After considering the available evidence with regard to the applicant’s study history in Australia, I accept she has completed courses in which she has been enrolled, but I am concerned that there is an overall lack of academic progression and I have a further concern that she has enrolled in a variety of relatively short vocational courses, which have provided her with less expensive study options than she may have encountered through enrolling in higher education sector courses. This gives rise to the concern as to whether she has sought less expensive study options because she has motives other than study for maintaining her residency in Australia on a series of temporary visas.

11. With regard to the relevance of the course to the applicant’s past or proposed future employment either in her home country or a third country, it is not readily apparent to me why a leadership and management course is necessary for the applicant’s stated future business goal of running a branch of a business selling lottery tickets, given it is not apparent this business would have a large workforce. It is noteworthy that the reference to the applicant’s elder sister owning a factory which employs 500 staff is a separate business from Thason Ltd. Given the applicant’s pre-existing qualifications from the marketing courses and a Bachelor of Business Administration, I am not persuaded the skills and qualifications she may achieve through her current course are essential to her future employment or business opportunities in her home country.

12. With regard to remuneration the applicant could expect to receive in her home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study, it is not apparent to me why the current course in which the applicant is enrolled would significantly enhance the remuneration she could expect to receive from her interest in Thason Ltd, as I am not persuaded the success or failure of this business venture will be reliant on her completing a leadership and management course. As to the extent to which the leadership and management qualifications will enhance the remuneration the applicant could expect to get from employment in Thailand or a third country, I am satisfied the applicant could be somewhat advantaged by these extra qualifications and have accordingly placed some weight on this factor.

13. In making a decision in the particular circumstances of this matter, I have considered all the available evidence, including that the applicant is currently enrolled and successfully completing a Diploma of Leadership and Management which finishes in April 2019 and is enrolled in an Advanced Diploma course which will finish in April 2021, she has family ties in Thailand equal to or stronger than her ties to Australia, that she has successfully completed most of the courses she has enrolled in while on the student visas and all the other matters she has raised. However, for the reasons outlined above I do not accept the applicant is undertaking the current study for the reasons she claims, but rather using it as a pathway to maintain residence in Australia for economic reasons.

14. I am therefore not satisfied that the applicant is a genuine applicant for entry and stay as a student and I am of the view that the student program is only being used to maintain ongoing residence.

15. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

16. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

    The second named visa applicant

17. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria. Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head, or child who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

18. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the secondary applicant is unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.500.212.

19. 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

20. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    David Barker
    Member