SONGSRI (Migration)

[2019] AATA 1587

SONGSRI (Migration) [2019] AATA 1587 (29 April 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Prapaporn SONGSRI

CASE NUMBER:  1718632

DIBP REFERENCE(S):  BCC2017/2139532

MEMBER:Peter Booth

DATE OF DECISION:  29 April 2019

DATE CORRIGENDUM

SIGNED:28 June 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

That the member ’29 April 2019’ on the front page of the decision record is to be deleted, and replaced with:

’Peter Booth’.

Peter Booth
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Prapaporn SONGSRI

CASE NUMBER:  1718632

HOME AFFAIRS REFERENCE(S):           BCC2017/2139532

MEMBER:29 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 29 April 2019 at 5:18pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not entitled to appear before the Tribunal – genuine temporary entrant – regression in level of study – immigration history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.211

CASES
Hasran v MIAC [2010] FCAFC 40

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 1 August 2017 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 17 June 2017. At the time of application, Class TU contained two subclasses:

   ·Subclass 500 (Student); and

   ·Subclass 590 (Student Guardian).

3. 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.

4. 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 the applicant was not a genuine temporary entrant.

5. On 17 January 2019 Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the application in review in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 31 January 2019 or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information, and the applicant would lose any entitlement they might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

6. The review applicant did not provide the information within the prescribed period, and no extension of time was requested. In these circumstances, s.359C applies, and pursuant to s.360(3), the review applicant is not entitled to appear before the Tribunal.

7. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

8. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. 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?

12. 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.

13. 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.

14. The applicant did not respond to the Tribunal’s invitation to provide information.  No other relevant material, save for the department file and the decision under review, is before the Tribunal.

15. The Tribunal has had regard to decisions of the Minister’s delegate dated 1 August 2017.  Relevant matters disclosed in the department file are as follows:

    ·The applicant was granted an initial Student visa on 8 February 2013, valid until 19 April 2013 to study Certificate I and II in English as a second language.

    ·She arrived in Australia on 27 April 2013.

    ·She was granted another student visa to study Certificate IV in massage therapy practice and a Diploma of Remedial Massage.

    ·She did not complete these courses but continued studying general/business English.

    ·The applicant then applied for another student visa to study ‘English and Certificate IV in Business’.  This was refused.

    ·The applicant had completed a Bachelor degree in Business Administration in her home country, and worked as ‘head of production’ for 14 years.

    ·The applicant did not state how she intended to pursue a career, upon her return to her home country.

16. The Tribunal does not consider that the applicant is a genuine temporary entrant, for several reasons.

17. There is little evidence regard the applicant’s circumstances in her home country save that she has a Bachelor degree and considerable work experience.  However, a mature age student who is pursuing vocational courses, and English language courses, represents a regression in study rather than a progression, in the Tribunal’s view.  The Tribunal gives this significant weight. 

18. There is no evidence as to the applicant’s potential circumstances in Australia.  The Tribunal gives this factor no weight.

19. There is little evidence as to the applicant’s intention and the value of the courses to her.  The Tribunal gives this little weight.

20. The applicant’s immigration history discloses several visas for vocational study in Australia.  This series of visa applications by a well-qualified and experienced person, but only for the purposes of vocational study, does not suggest that the applicant is motivated for genuine study purposes.

21. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for a further stay, as full-time student.  It appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application, only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.  

22. The Tribunal has also given regard as to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia, temporarily. 

23. The Tribunal has considered all information provided by the applicant in support of the applicant’s application.  On balance the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in the applicant’s home country, potential circumstances in Australia, the value of the proposed course to the applicant’s future, the applicant’s immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

24. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than a view to a genuine interest in study and overall academic progress.  The applicant appears to be using the student visa program as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.

25. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69:

    ·economic circumstances of the applicant;

    ·any potential military service in the China;

    ·political or civil unrest circumstances in the China;

    ·remuneration the applicant could expect to receive the China or a third country compared with Australia;

    ·circumstances in the China relative to Australia or any other country; and

    ·the applicant’s circumstances in the China relative to others in that country.

26. 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).

27. 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

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

    Peter Booth
    Member