Somboonsri (Migration)
[2021] AATA 983
•4 March 2021
Somboonsri (Migration) [2021] AATA 983 (4 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Miss Juthamas Somboonsri
Master Flynn Punnatat Charoenket
Mr Preeda CharoenketCASE NUMBER: 1903675
HOME AFFAIRS REFERENCE(S): BCC2018/4312092
MEMBER:Amanda Upton
DATE:4 March 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Statement made on 04 March 2021 at 1:12pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – lengthy stay in Australia – consistent employment in Australia – several unfinished courses – value of the course to future career – maintaining ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.212, 500.311CASES
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Shoukat v Minister for Home Affairs [2020] FCA 194STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 January 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 3 October 2018. 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.
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) because they did not consider the applicant to be a genuine temporary entrant for entry and stay in Australia as a student.
The applicants appeared before the Tribunal on 13 October 2020 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed. The Tribunal’s reasons incorporate reference to the documentary evidence and other information found on the Tribunal and Department files that have been found to be material to the determination of the issues in the case.[1]
[1] The Tribunal notes that it is not required to make explicit reference to every piece of relevant information before it because not all relevant considerations will be material to the Tribunal’s ultimate determination. See Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, [30]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [49] (Bell, Gageler and Keane JJ); Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16, [88]-[95]; Shoukat v Minister for Home Affairs [2020] FCA 194, [25] (O’Callaghan J); Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant for entry and stay in Australia as a student.
Genuine applicant for entry and stay as a student (cl.500.212)
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?
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.
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.
Entry and Visa History
The applicant in this case is a Thai woman who first arrived in Australia in October 2005, 15 years ago as the holder of student visa. The applicant then was the holder of a student dependent visa whilst her husband was studying.
Time Onshore
The applicant has returned home six times since arrival in Australia, she has also visited Nepal during this period of time.
Study History
Prior to arriving in Australia, the applicant had completed her secondary schooling in 2005. She has no previous work experience in her home country.
Since her arrival in Australia, the applicant has completed;
· General English
· Diploma of Hospitality Management (2008)
· Advanced Diploma of Leadership & Management
The applicant has been enrolled in but did not complete;
· Diploma of Business
· Bachelor of Hospitality Management
· Bachelor of Business
· Diploma of Event Management
The applicant is currently enrolled in a Graduate Diploma of Management scheduled for completion in October 2021 taking her time onshore to a period of 16 years. The applicant considers that she can enter second year university at the completion of the course and this is what she intends to do. The applicant intends to apply for a Bachelor of Business which would conclude in 2024.
Evidence in Support of Application
In support of her application, the applicant has provided a number of documents.
The Tribunal has considered these documents and the evidence given by the applicant in reaching its decision.
Applicant’s circumstances in their home country
The Tribunal has had regard to the applicant’s circumstances in Thailand as follows;
Reasons for not studying in home country
·The applicant considers that an international degree is valued and shows she is focused internationally, not just domestically.
·She considers that obtaining international work experience would also help her obtain employment in her home country.
·She plans to work with a friend in his business of delivering infrastructure to live events. She considers that she will fulfil the role of managing operational elements and business growth
Personal ties to home country
·The applicant’s parents live in Thailand. She keeps in contact with them on a regular basis as well as her extended family and close friends.
·The applicant has no significant property or assets in either Thailand or Australia. The applicant’s husband expects that he will inherit land in Thailand from his parents.
Economic Circumstances in Australia as incentive not to return home
·The applicant has been consistently employed in Australia in various hospitality roles. The applicant maintains her employment but she is not working currently due to the pandemic. She expects that she will return to work when the circumstances allow it.
Military service or civil/political unrest concerns in home country
·The applicant raises no such concerns.
The Tribunal is unable to accept that applicant’s assertion about study in her home country, it is a claim made without supporting evidence.
The Tribunal is troubled by the length of time that the applicant has spent onshore, being 16 years and her intention to remain for a number of years to complete Bachelor level. The Tribunal considers that the fact in and of itself is indicative of an intention to remain on a more permanent basis and inconsistent with a claim to be a temporary resident.
The Tribunal finds that the applicant’s potential economic circumstances in Australia as demonstrated by her, and the secondary applicant’s consistent and ongoing employment outweigh their financial ties to their home country. The Tribunal notes that the applicant has potential interest in family property however does not consider this to be a financial tie that provides an incentive to return to their home country.
The Tribunal acknowledges that the applicant has family who reside in Thailand however does not consider that she has established that these family ties constitute an incentive to return particularly considering that the applicant’s immediate family is with her in Australia.
Applicant’s potential circumstances in Australia
The Tribunal has had regard to the applicant’s potential circumstances in Australia, based on the evidence provided at the hearing, as follows;
Applicant’s ties with Australia
·The applicant’s immediate family including her husband and son are with her in Australia as is her sister.
·The secondary applicant completed his study in 2018. He is currently working part time doing parcel delivery.
·The applicant’s son was born in Australia. He is in grade 1 at school.
Evidence visa program being used to circumvent the migration program
·The applicant has been enrolled in a number of vocational level courses some that she has completed and some she has not. Thy are of varying subject matter.
Primary and secondary applicants relationship of concern
·The applicant’s spouse and child are included in the visa application as dependent persons.
Applicant’s knowledge of living in Australia, their intended course and level of research into their intended course.
·The applicant has the aim of completing a Bachelor degree and chose her education provider as she feels that it provides the best pathway to do that.
·The applicant visited a number of providers before selecting her current one.
The Tribunal considers the applicant’s study history and the time that she has spent onshore in Australia and concludes that these circumstances are an indication that the applicant is using the student visa program to circumvent the migration program.
The Tribunal gives significant weight to the fact that the applicant’s spouse and children are with her in Australia, as a factor that serves as a disincentive for the applicant to return to Thailand.
Value of the course to the applicant’s future
The Tribunal has had regard to the value of the course/s of study to the applicant’s future as follows;
Is the course consistent with the applicant’s current level of education?
·The applicant has been enrolled in a number of short vocational courses of which to date she has only completed one. The current course is consistent with her current level of education although is inconsistent with the courses at Bachelor level that she has been enrolled in but failed to complete.
Will the course assist the applicant to obtain employment or improve employment prospects?
·The applicant states that she wishes to ultimately obtain a Bachelor level qualification in Events and Business Management which she will then use to obtain employment in her home country.
·
She is of the belief that a Bachelor qualification is the minimum requirement to obtain employment and told the Tribunal that her friend requires a Bachelor or Master degree to do the job with her friend as it is an event leader position.
Relevance of course to past study?
·The applicant has previously completed a course at vocational level and enrolled in numerous others that are tangentially relevant to her current course, in that leadership & management skills may be said to supplement already held qualifications or experience generally.
The Tribunal does not consider that the applicant has established the value of the course to her future. The Tribunal is unable to accept how the applicant says the course is of value as she he has not provided any detailed or compelling evidence as to her plans or goals against which to assess this fact. The Tribunal is unable to conclude that there is any connection between career goals and the current course of study.
The Tribunal considers in circumstances in which the proposed study offers no apparent value to the applicant’s future, it is likely that the applicant’s purpose engaging in further study is to maintain an ongoing residence in Australia and thereby circumvent the natural ordinary migration process.
Immigration History
The Tribunal has had regard to the applicant’s immigration history. There is no evidence of other visa refusals or cancellations.
Any other relevant matters
There is no further evidence before the Tribunal relevant to the application.
The Tribunal considers that an applicant who is a genuine temporary entrant in Australia for the purpose of studying and to progress academically will be able to demonstrate circumstances that evidence a genuine intention to remain temporarily as a genuine student.
The Tribunal acknowledges that these things will be different in each individual case and may change over time with respect to an individual applicant. The Tribunal considers that the applicant has failed to establish such circumstances and as such the Tribunal does not accept the applicant’s claim to be a genuine temporary entrant
Considering the above individually and collectively, 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).
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.
As the primary applicant is found not to meet clause 500.212(a), the dependant applicants do not satisfy cl 500.311. Accordingly, no further enquiry is required with regards to the dependant applicants.
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
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Amanda Upton
MemberAttachment – 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.
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