Sayumpron (Migration)

[2020] AATA 6105

Sayumpron (Migration) [2020] AATA 6105 (18 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mudthana Sayumpron

CASE NUMBER:  1921934

HOME AFFAIRS REFERENCE(S):          BCC2019/1697372

MEMBER:D Triaca

DATE:18 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 18 December 2020 at 11:51am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– vague details about her future plans – genuine temporary entrant criterion not met–applicant has not completed course– no strong incentive to return to her home country– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 500.212

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 Home Affairs on 24 July 2019 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 5 April 2019. 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.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant appeared before the Tribunal on 17 December 2020 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 applicant was 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Genuine applicant for entry and stay as a student (cl.500.212)

8. 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?

9. 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, which is attached to this decision, 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.

10. 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.

11. Whilst not defined in the Regulations, the word genuine may be taken to mean ‘authentic, real or true’ in according with its ordinary and natural meaning. The Regulations specify two constituent elements of a genuine student visa applicant. First, a genuine applicant is one who intends genuinely to stay in Australia temporarily. The applicant must demonstrate an intention to stay in Australia for a limited time only, not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student.[1] Secondly, a ‘genuine applicant’ is a person who intends to comply with any conditions to which the visa may be subject.[2]

    [1] See Singh [2019] (Migration) AATA 2993 at [13]

    [2] See the discussion of the meaning of ‘genuine applicant’ in Vu Vu (Migration) [2019] AATA 5740 (18 December 2019) [22] – [25] upheld on appeal in Vu Vu & Ors v Minister for Immigration and anor [2020] FCCA 2292

12. The issues in this case arose in the following circumstances, the applicant is a 33 year old citizen of Thailand. She first arrived in Australia on 30 June 2018 on a visitor visa. On 5 April 2019 she applied for a student visa, proposing to study English at Sunshine Coast International College. On 5 April 2019 a delegate of the Department refused his application (delegate’s decision). On 24 July 2019 he applied to the tribunal for a review of the delegate’s decision and he provided the tribunal with a copy of that decision.

13. The tribunal has read and had regard to documentation provided by the applicant to the Department and the tribunal including the delegates decision, application for a student visa, family book, work certificate, confirmation of enrolment, academic transcript, title deed, passport, bank statement Commonwealth Bank, Identification card, Form 956, bridging visa information and certificate of overseas student health cover. On 14 May 2020 the Tribunal wrote to the applicant and invited her to provide further information pursuant to s.359(2) of the Act. On 28 May 2020 the applicant responded in writing (359 Response). The Tribunal has read and had regard to the applicant’s 359 Response, together with further documents filed in support including confirmation of enrolment, statement of attainment in relation to English language courses she has studied.

14. The applicant is currently enrolled in General English at Pacific English Institute. She is due to complete this course in May 2021. She says she would like to study further English courses following that and then study business before returning home. She is not currently enrolled in any further courses. When asked specifically when she plans to leave Australia, she says 2 or 3 years. She says she is waiting on the economic situation in Thailand to improve on account of COVID-19.

15. There are a number of matters that weigh heavily against granting the application.

16. First, the Tribunal does not accept the applicant’s evidence to the effect that she is unable to find a suitable English language course in Thailand. She says that English is not taught properly in Thailand due to the different accent and poor pronunciation. The Tribunal considers it unlikely that the applicant is unable to learn English in Thailand. Whilst it accepts there may be some collateral benefits in learning English and living in an English speaking environment, the Tribunal considers that the applicant has derived such a benefit already having lived here for close to two and a half years. She says she studied ‘basic English’ in Thailand that did not include grammar. There is nothing to suggest that she cannot learn English in Thailand if this is her wish, including grammar. The Tribunal considers that she has not advanced reasonable reasons for not undertaking study in her home country.

17. Secondly, the applicant arrived in Australia in 2018. She enrolled in a General English course in April 2019. She did not complete this course. She says that she had difficulty understanding the course. She says she did not have funds to study further as she was waiting for funds from her family in Thailand and she had to wait for the harvest season to receive further funds from her family. She says that she was not supported effectively by the institute and the institute did not motivate her. She got advice from a friend to move to a different institution, which she ultimately did. The Tribunal considers her failure to complete the first General English course she enrolled in reflects a lack of application to her studies and weighs against the application.

18. Third, the applicant ceased studying in any form in October 2019 and did not recommence her studies until about May 2020. Her reasons for not studying during this period were that she was ‘demoralised’ by the delegate’s decision and funding issues. The Tribunal does not consider that she had reasonable reasons for simply not studying over a six-month period. It is likely that this gap in her studies also breached her student visa condition 8202 which includes the requirement that she achieve satisfactory course progress and course attendance.

19. Fourth, the Tribunal considers the applicant’s plans for the future are vague and non-specific. In relation to her future study, she says she wishes to spend a further 2 -3 years in Australia but has no enrolment beyond her current course and did not nominate a specific course or institution she proposes to study in the future. She alluded to a vague plan to study ‘business’ but it is unclear how what course or where she intends to undertake this further study. In relation to her plan to return to Thailand, she says that she was previously a public servant in Thailand and the pay was poor. She would like to work in a hotel or open her own business, perhaps in a resort where foreigners come to stay. She says that English will help her to do this noting that Thailand is a well-known tourist area. It is difficult to assess the value of the study against the applicant’s plans are vague.

20. The Tribunal accepts that there is generally some value to the applicant in studying the English language. However, in the case of the applicant, the value must be weighed against the fact that she could undertake study in Thailand, she has failed to make the most of the opportunities for study available to her in Australia so far and she has only vague plans in relation to how the study will assist her in the future. She has now had over two years in Australia in which to study and live in an English speaking society. She was unable to say how much further English study she required. The applicant was unable to demonstrate that she would benefit from further study, or that such study would improve her employment prospects in her home country or a third country. It follows that the Tribunal does not accept that the further English study is likely to assist the applicant’s increase the applicant’s remuneration in her home country. In her 359 Response, the applicant claimed her remuneration will increase by 30% upon completing her English course. There is nothing to base this on and the Tribunal places no weight on the statement.

21. The Tribunal places minimal weight on the applicant’s plans to study ‘business’ in the future. There may be some value in the applicant so doing. However, she is not enrolled, did not have plans to enrol and did not demonstrate how ‘business study’ is likely to assist her in the future.

22. There is no evidence in relation to the applicant’s circumstances in her home country relative to others there.

23. The applicant states, and the Tribunal accepts that she has no concerns in relation to political or civil unrest in her home country.

24. The applicant states, and the Tribunal accepts, that she has no concerns in relation to military service commitments in her home country.

25. The applicant’s family in Thailand is stated to be her mother and brother. She says she speaks to them daily. She says all her friends and family are located in Thailand. She returned to Thailand on two occasions in 2018. Notwithstanding her evidence in relation her family ties, the Tribunal considers that the applicant has resided here for over two years, is seeking to remain here for an unspecified further period and appears to be managing her family ties by telephone and social media. In these circumstances, the Tribunal does not consider the applicant’s family ties to her home country operate as a significant incentive for her to return home. This weighs slightly against the application.

26. The applicant’s partner resides with her in Australia. He is not a dependent on the application. He works as a contractor for the NBN, setting up internet in Australia. The Tribunal considers that his presence in Australia is a tie to Australia that may operate as a strong incentive for him to remain here. This weighs slightly against the application.

27. The evidence in relation to the applicant’s economic circumstances is as follows. She does not work in Australia. She is financially supported by her Partner and says she has financial support of her family. She has property in Thailand including a house, land and vehicle. She declared no assets in Australia. The Tribunal does not consider ownership of property constitutes a significant incentive for the applicant to return home. Property may be readily sold or retained and utilised to produce income in the form of rent. Neither scenario is likely to require the applicant to return home. She provided evidence of a bank deposit in the Commonwealth Bank. In circumstances in which the applicant does not work, the tribunal does not consider that economic circumstances operate as a significant incentive for her to return home or remain here. They are neutral to the application.

28. The applicant’s evidence is that she has travelled between Australia and Thailand without any issues. She did not declare any concerning travel history. Save for the possible breach of visa condition 8202, she appears to have complied with the various conditions of her visas since arriving here. The Tribunal gives some weight against her in relation to the breach of condition 8202 simply due to the fact that the effect of the breach was that she remained in Australia on a student visa without studying or working for a period of approximately 6 months. It is difficult to consider this period as anything other than wasted time. It otherwise makes no further adverse findings in relation to her travel or immigration history.

29. When asked to explain her statement that she was ‘demoralised’ by the delegate’s decision, she responded that she was ‘hoping to work and support her family’ The Tribunal considers this evidence concerning as it suggests that the purpose of the applicant’s seeking a student visa was to maintain an ongoing residence in Australia as opposed to any educational benefits. In circumstances in which she has not, in fact, worked in Australia the Tribunal does not make any adverse findings in relation to this evidence.

30. There do not appear to be any further matters relevant to the application.

31. The Tribunal has considered all the evidence before it. It does not consider the applicant to be a genuine applicant. This is a situation in which the applicant’s academic record is poor and her conduct in Australia, in not studying to the courses she was enrolled in when given the opportunity lead the Tribunal to conclude that she is motivated by reasons other than study. It has no confidence that she will apply herself to her study if given the opportunity. Even if she were to do so, there is marginal value in the proposed study, her plans are vague and non-specific and it appears that she should be able to undertaken equivalent study in Thailand. In these circumstances, the application is refused.

32. 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).

33. 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.

    DECISION

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

    D Triaca
    Member

    
    

    Attachment – Direction No.69

    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 either 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 other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia 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 whether the applicant satisfies the genuine temporary entrant criterion.

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

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

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

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

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; 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 other 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.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; 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 others 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:

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

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

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.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.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either 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 other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

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

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

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

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

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    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 other relevant matters

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