Takanchan (Migration)

[2017] AATA 2401

Takanchan (Migration) [2017] AATA 2401 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ratdawan Takanchan

CASE NUMBER:  1612667

DIBP REFERENCE(S):  BCC2016/1838782

MEMBER:Penelope Hunter

DATE:13 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 13 November 2017 at 10:19am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Inconsistent evidence – Provided general evidence to course relevance – Little insight into the courses – Strong financial ties and incentive to remain

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 25 May 2016. The applicant proposed to undertake study in a package of courses including a Certificate IV in Business, Diploma of Leadership and Management, and an Advanced Diploma of Leadership and Management, with course dates from 9 May 2016 to 11 March 2018.

3. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

4. In response to a request for further details in relation to the application from delegate of the Minister the applicant also submitted a statement of attainment general English course, an interim Student Transcript Diploma of Human Resources Management issued 16 February 2016, a letter from the Wales Institute confirming her enrolment, progress and attendance and a letter of submission. In a letter of submission of the applicant raised the following;

   i.She came to Australia to study a Business Diploma and English.  Her first Confirmation of Enrolment (CoE) was cancelled as it started before her arrival in Australia. After that she finished her English course in the Diploma of Business was cancelled as the college did not accept her due to her English.

   ii.The applicant undertook study with another provider where she did another English course. She subsequently did a Certificate II, III and IV in Human Resources. After that she was doing a Diploma with the college. She wanted to do a Diploma of Business and left the college because there was no hope of doing the course there. Her CoE was cancelled due to the false commitment the College.

   iii.The applicant chose to attend the Wales Institute and where she shook study of the Diploma of Leadership and Management. Before taking the study she did proper research to find out whether the course was in line with her original intentions to undertake study in business. She wishes to have a Diploma level qualification before she returns to Thailand so that she can make herself more presentable in the job market.

   iv.The applicant claimed to complete all her courses with dedication.

   v.The applicant had no employment record in her home country  before she came to Australia after finishing her studies. She is yet to start a career her intention is to start her own business and self-manage the business. However she might start with some job related to management to improve her skills and that is the reason she is undertaking the study.

5. The delegate decided to refuse to grant the visa on 25 July 2016. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl. 572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia as a student temporarily. In their decision, a copy of which the applicant has provided to the Tribunal, the delegate based their decision on the following findings;

   i.The applicant was granted her initial student visa, subclass 573 offshore on 8 April 2013. She subsequently arrived in Australia on 20 April 2013, on 9 September 2014 she was granted a further student visa valid until 14 July 2016. In the time of the applicant had been residing in Australia is a holder of a student visa she had only completed Vocational Education and Training (VET) courses up to a Certificate IV level. The applicant had not made significant progress or achieved a reasonable level of completion for a student whose primary purpose for being in Australia was to study and progress academically.

   ii.The applicant did not study the Diploma of Business course that she was previously enrolled in and her Diploma of Human Resources Management was cancelled by her education provider for non-payment of fees.

   iii.The applicant had not provided any substantial reasons as to why she did not study the Diploma of Business course. The applicant had been enrolled in a Certificate IV in Human Resource prior to her Diploma of Human Resources. It was not clear to the delegate why she enrolled in a course for almost 2 years if she had no intention to complete it.

   iv.The delegate was not satisfied the applicant had provided an acceptable and explanation for her changing education providers.

   v.The applicant had not provided substantial reasons why she had chosen to study her courses. Although she had stated she would like starter in business she not provided any details of a business plan. She had not demonstrated a clear and substantial improvement arising from the proposed study that would outweigh the significant time and monetary commitment that the course would require.

   vi.There was a lack of apparent value to the courses for the future of the applicant which indicated that she did not genuinely intend to stay in Australia temporarily and that she was using the student visa program as a means of maintaining residence.

6. On 22 August 2017 the Tribunal wrote to the applicant and invited her to attend a hearing to give evidence and present arguments on 20 September 2017. The applicant did not attend the hearing and the nominated time and the Tribunal dismissed the application.

7. On 21 September 2017, the Tribunal received an application to reinstate her application for review. On 4 October 2017, the Tribunal determined to reinstate the application

8. The applicant appeared before the Tribunal on 19 October 2017 to give evidence and present arguments.

9. At the hearing the Tribunal explored with the applicant about her study history and study and career intentions. The applicant was asked courses that were completed and at the hearing she provided a Statement of Attainment from Lloyds International College of a 23 week English course issued 30 March 2014, a letter of completion from Bridges Business College confirming the applicant was enrolled in the Diploma of Human Resources Management commencing on 19 May 2014, Certificate IV in  Business  issued 17 November 2016, and a Certificate of Completion of  a Diploma of Leadership and Management issued 5 October 2017. The Tribunal raised concerns with the applicant about study plan and her reasons for undertaking her courses. The applicant also discussed with the Tribunal her immigration history, ties in Australia and her home country, the issues of concern for the delegate and other relevant matters.

10. The Tribunal discussed with the applicant at the hearing her study history and the reasons for her proposed courses. It explored her circumstances in Australia, in her home country as well as the other relevant criterion for consideration under Direction 53.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

13. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)     …

14. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

15. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

16. Having considered the applicant’s claims against all the factors specified in Direction 53, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

17. The Tribunal acknowledges that the applicant has completed several courses since her arrival in 2013, however study and the completion of courses is the general expectation of all applicant’s in Australia on student visas. Overall the Tribunal found the evidence of the applicant to be inconsistent and that she had little insight into the courses that she had undertaking and was proposing to undertake. Furthermore she could only provider to the Tribunal general evidence as to their relevance to her future career. When discussing her study history, the applicant claimed she had only had one CoE cancelled previously. Her evidence to the Tribunal was that the reason for this was because she had not paid fees. The applicant claimed that she subsequently paid all fees. She was unable to satisfaction explain to the Tribunal, the information contained in the decision record of the delegate of six previous cancelled CoEs. The applicant’s evidence was also inconsistent with the early submissions you provided to the delegate. To the Tribunal she suggested that that some stage someone must have enrolled in these courses in her name. There is no evidence of the applicant having completed any courses prior to her English course in March 2014, this was a 12 week course. Yet the applicant arrived in Australia in April 2013. The initial visa granted to the applicant was a Subclass 573 visa, as recorded in the decision of the delegate. In her evidence the applicant had no knowledge of any course at this level. She generally claimed to have enrolled in courses at the suggestion of her agent.  The applicant was also unable to answer with any spontaneity about the question she had undertaken and could not identify courses without prompting from the relevant documents for her. The Tribunal was not satisfied that she had engaged with any of the courses of study she had undertaken.

18. When the Tribunal question the applicant on why she had chosen to study in Australia she claimed that she wanted to study business. She claimed that there was a better future in Australia. However in her various courses study the applicant had completed only one business course, the Certificate IV. In her home country she claimed that she had worked in a factory making books. This was inconsistent with her submission to the delegate that she had not previously worked. The applicant did not provide a satisfactory explanation to the Tribunal as to whet she was currently undertaking studies in Leadership and Management. She claimed only that it was about business. It found her evidence as to her reasons for course changes and undertaking her studies unsatisfactory. The applicant could not identify what about this as she wants to learn and other than stating to the Tribunal that she wants to run a business in a home country. In her evidence the applicant was unable to identify particular details as to the type of business she wish to engage in, where it would be situated in when she would be in a position to undertake this. She told the Tribunal that maybe she would have a small shop. 

19. During the hearing the applicant informed the Tribunal that she remained in Australia not only to study but to look after her children as well. The applicant confirmed when questioned by the Tribunal that she had to support them financially and this was from the work she undertook in Australia. The applicant claimed to have two children, aged 8 and 9, and she was separated from her husband. She was the sole breadwinner and her children were living with her family. In Australia she is working in a massage shop and has been employed by this business for over 2 years. The applicant conceded when questioned by the Tribunal that there was a financial incentive for her to remain in Australia. When asked further about her circumstances in Australia, the applicant claimed that her sister was also living and working in Australia. She was not living with her sister, but they visited each other regularly. She also has some friends in Australia when she arrived. On her evidence, the Tribunal finds that the applicant has a strong financial ties and incentive to remain in Australia.

20. The Tribunal has also considered the evidence also of her ties to her home country. Although the applicant has children, a sister and her parents in her home country, she has not returned to visit them since her initial arrival in 2013. The applicant also gave evidence that she did not have any assets or property in her home country. When asked whether she intended to return home once she had completed her current courses, the applicant said that she was looking for some other things to study. It was clear from the applicant’s evidence that she had no immediate intention to return to her home country upon the completion of her current course in 2018. The Tribunal is not satisfied that her family connections to her home country act as a significant incentive for her to return.

21. Overall, the Tribunal finds that the applicant’s potential circumstances in Australia provide incentive for her to remain for purposes other than that of a genuine student. From the evidence of the applicant the Tribunal finds that the applicant is using the student visa program to maintain residency in order that she can work in Australia and circumvent the intentions of Australia’s migration program.

22. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

23. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Penelope Hunter
    Member