TEABMUNG (Migration)

[2021] AATA 750

TEABMUNG (Migration) [2021] AATA 750 (24 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Nipaporn Teabmung
Mr Kittichai Teabmung

CASE NUMBER:  1815348

HOME AFFAIRS REFERENCE(S):          BCC2018/1301272

MEMBER:Peter Haag

DATE:24 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

As the Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the criteria for a Subclass 500 (Student) visa, the Tribunal also remits the application of the second named applicant for reconsideration, with the direction that he satisfies the requirements of cl.500.311 of Schedule 2 to the Regulations.

Statement made on 24 March 2021 at 6:43pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Tribunal’s jurisdiction not properly engaged – notice obligations – administrative error – incorrect address for correspondence – genuine temporary entrant – reasons for not undertaking the study in home country – personal ties to home country – untranslated documents – economic circumstances in home country – applicant’s ties with Australia – value of course – Marketing and Communication – career plan – recruitment/human resources consultant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

CASES
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16

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 15 May 2018 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 19 March 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.

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 the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia as a student.

4. The applicants appeared before the Tribunal on 24 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kittichai Teabmung.  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 representative.

   BACKGROUND

6. On 2 April 2020 the Tribunal affirmed the decision of the delegate not to grant the Student visa to the applicant on the basis the Tribunal was not satisfied the applicant was enrolled in a course of study at the time of decision. This issue is decidedly different from the issues currently under consideration by the Tribunal.

7. On 13 January 2021 the applicant’s representative informed the Tribunal that they had only recently become aware of the refusal decision. The applicants’ representative also informed the Tribunal that through a Freedom of Information inquiry of the Tribunal, along with other inquiries, the representative discovered the Tribunal’s correspondence relevant to the review hearing, including notification of the applicant of the decision of 2 April 2020, had not been communicated to the applicant. The relevant omissions resulted from an administrative error by Tribunal staff that resulted in an incorrect address for correspondence being uploaded into the applicant’s review file. 

8. The applicant submitted through her representative, that the Tribunal’s failure to comply with various notice obligations provided in the Act meant the Tribunal’s jurisdiction was not properly engaged.  Therefore, the review hearing should be properly commenced, and the applicant invited to appear before the Tribunal to give evidence and present submissions in support of the visa application. Tribunal decided that its jurisdiction had not been properly engaged, consequently, the decision of 2 April 2020 was a nullity from the beginning and of no effect. On 19 January 2021 the Tribunal gave written notice of that decision to the applicants and the Department of Home Affairs.

9. Furthermore, the Tribunal accepted the applicant’s submission that it was open to the Tribunal to proceed to determine the review on the merits. This submission combined with the applicant’s participation in the review process, including her participation in the review hearing, satisfies the Tribunal of the applicant’s consent to the jurisdiction of the Tribunal to determine the application for the Student visa in the present review. This conclusion is strengthened by the applicant’s evidence to the Tribunal that she consented to the Tribunal’s jurisdiction to hear and determine the visa application in this proceeding.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 temporarily in Australia as a student.

12. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

13. In this review the applicant provided a copy of the delegate’s decision to the Tribunal and the Tribunal has read that decision.

14. The applicant reasons that the education system in Australia is reputed to be of a high standard and that qualifications gained in Australia will assist her to work effectively in business in her home country. The applicant reasons further that her studies in the English language, will assist her to engage creditably with English speaking businesspeople and businesses in her home country, Thailand, a country that is currently attracting significant investment from global companies. The Tribunal is satisfied the applicant has reasonable reasons for not undertaking the study in her home country or the region.

15. The applicant is in regular communication with members of her immediate family in Thailand and her relationship with them is close and supportive. The applicant spent time in Thailand in September and October 2018 visiting with her family.

16. The applicant’s mother and grandmother own significant land holdings in Thailand. The land is currently being used for two purposes: rice cultivation and pig farming. The applicant has sought to support this evidence with copies of untranslated land title documents.

17. The applicant also claims that an untranslated document she provided to the Tribunal is a written promise to transfer family assets to her and her husband. Relevantly, the applicant was informed in writing on 23 February 2021 as part of her invitation to attend the hearing, that all documents not in the English language should be accompanied by a translation from a qualified translator.

18. In the absence of translations of the land title documents and the promise to transfer these property assets to the applicant and her husband, the Tribunal is unable to give significant weight to the untranslated documents, or the applicant’s claim that the owners of the land are willing to immediately transfer the land to applicant and her husband.

19. The applicant has personally estimated the value of the land owned by her mother and grandmother at AU$891.304.  The applicant has not established that this is an expert valuation or that it is any more than her own inexpert opinion as to the value of the property. The Tribunal attaches little weight to the applicant’s claim as to the value of the land.

20. The applicant was an active member of a Buddhist temple in Thailand and she is in regular contact with members of the temple, and she claims she sometimes donates money from Australia to the temple. The applicant provided no evidence that verifies that these donations were made, and the Tribunal gives no significant weight to her evidence on this matter.

21. The applicant is in regular contact with friends in Thailand.

22. The applicant regards herself as responsible for caring for her mother in her old age.  The applicant has a close relationship with her husband’s family; the applicant and her husband communicate regularly with them.

23. The Tribunal accepts the applicant’s personal ties to her home country would serve as an incentive to visit her home country from time to time, however, the Tribunal is not satisfied the applicant’s personal ties to Thailand would serve as a significant incentive to return to Thailand.     

24. In addition to studying, the applicant is currently employed in the spa and massage industry. In giving regard to the applicant’s evidence relevant to her economic circumstances in Thailand, on balance, the Tribunal is not satisfied the applicant’s economic circumstances in Thailand relative to Australia would present as a significant incentive for the applicant not to return to Thailand.

25. There is no evidence of military service commitments that would present as a significant incentive for the applicant not to return to Indonesia; and, there is no evidence of civil unrest in Indonesia that may induce the applicant to apply for a Student visa as a means of obtaining entry to Australia for the purpose of remaining. The Tribunal gives these considerations neutral weight in this decision.

26. The applicant is being assisted in Australia by her spouse and he is a secondary applicant for the Student visa. There is no evidence that other members of the applicant’s family reside in Australia. The applicant spends time with friends in Sydney and dines out with them about once per month. The applicant occasionally participates in Buddhist festivals and temple activities in Sydney.

27. The difference in general living standards in Australia relative to general living standards in Thailand is a matter of common knowledge. Nevertheless, the Tribunal is not satisfied the applicant’s ties with Australia would present as a strong incentive to remain in Australia.

28. The applicant has established a residence in Australia and her spouse resides with her. The applicant has demonstrated a realistic level of knowledge of living in Australia. The applicant has also demonstrated a realistic level of knowledge of her courses of study and the associated education providers.

29. The applicant arrived in Australia with her spouse on 21 May 2016 as the holder of a Student visa.  According to the evidence, since that time the applicant has successfully completed the:

    ·    General English (Beginner to Advanced)

    ·    Diploma of Leadership and Management

    ·    Certificate IV in Human Recourses

    ·    Diploma of Human Resources Management

    ·    Advanced Diploma of Human Resources Management

30. Currently the applicant is studying the Certificate IV in Marketing and Communication. That course is scheduled to end on 17 December 2021.  The evidence establishes the applicant has obtained approval from her course provider to undertake the Diploma of Marketing and Communication and the Advanced Diploma of Marketing and Communication. If the applicant were to complete both courses of study, her stay in Australia would be to 28 February 2025.

31. A material consideration in this review is whether the applicant’s current package of courses in Marketing and Communications is relevant to her future employment in Thailand to the extent that the qualifications to be gained from those courses will assist her to obtain employment or improve her prospects of employment in accordance with her stated employment plan.  In considering these matters the Tribunal is required to allow for reasonable changes in the applicant’s career or study pathway.[1]

    [1] Ministerial Direction No.69, cl.12a.

32. According to the evidence the applicant intends to return to Thailand upon completion of the current package of courses in Marketing and Communication: the last course being the Advanced Diploma of Marketing and Communication which ends on 28 February 2025.

33. In support of her claim to be a genuine temporary entrant, the applicant informed the Tribunal that she will return to Thailand upon completing the Advanced Diploma of Marketing in February 2025, at which time she will peruse a career in recruitment/human resources.

34. Relevant to the applicant’s evidence as to the value of the studies to her future employment prospects, is the fact that the courses are taught in the English language. In evidence to the Tribunal the applicant acknowledged that her written English is stronger than her spoken English, and that her spoken English requires further improvement.

35. According to the applicant’s written evidence, Thailand is benefiting from substantial investment in its economy generally, including investment in new infrastructure construction. The applicant provided to the Tribunal an expert report prepared by Knight Frank (Thailand) Company which demonstrates that a new major freeway will substantially improve the efficiency of motor vehicle travel between Korat, the applicant’s home province, Bangkok and other commercial centres and population centres in Thailand. And the freeway is ‘on track’ to be completed at the end of 2021.

36. According to the applicant’s evidence the engagement of international companies in commerce and businesses in Thailand has created employment opportunities in Thailand in the recruitment sector.  

37. Furthermore, according to the applicant’s evidence her qualifications in Marketing and Communications, Leadership and Management and Human Resources Management, considered in combination by potential employers in Thailand, will improve her prospects of gaining employment as a recruitment/human resources consultant. The applicant contends foreign investors in Thailand will need advice in relation to staff recruitment and human resources management.

38. The applicant has provided documentation that demonstrates workforce recruitment is an established field of business in Thailand. According to the evidence employment opportunities exists in Thailand for appropriately qualified Thai nationals to work as recruitment/human resources consultants. After considering the applicant’s past qualifications gained in Australia in combination with the proposed studies in Marketing and Communications, the Tribunal is satisfied the applicant’s proposed study is significantly relevant to her employment plan, and that the courses will significantly improve her employment prospects in Thailand.

39. The applicant’s documented market research with recruitment consultancy Robert Walters, Thailand, indicates that if she were seeking employment as a recruitment consultant in the first quarter of 2021, she could expect to receive renumeration that is variously described in the documents as a competitive salary with bonuses. To give more substance to the concept of competitive remuneration the applicant has estimated the renumeration she expects to receive in her first year of employment as a recruitment consultant to be in the order of AU$62,000.

40. There is no evidence that establishes the applicant travelled to countries other than Australia and failed to comply with the migration laws of that country, therefore the Tribunal is satisfied this aspect of the applicant’s immigration history is immaterial to the Tribunal’s reasons for decision, and the ultimate decision in this review: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (Kumar).

41. There is no evidence that establishes the applicant has previously applied for an Australian visa that was not granted. There is no evidence the applicant has previously travelled to Australia and failed to comply with the conditions of an Australian visa. There is no evidence the applicant previously held a visa that was cancelled or considered for cancellation. There is no evidence the applicant has travelled to countries other than Australia and failed to comply with the migration laws of that country.  The Tribunal is satisfied these considerations are immaterial to the Tribunal’s reasons for decision, and the ultimate decision in this review: Kumar.

42. The Tribunal has considered the amount of time the applicant has spent in Australia as a student; the courses the applicant has undertaken in Australia; the duration of those courses; whether the courses complement each other and add to the applicant’s prospects of employment in Thailand; and, whether there is evidence of unreasonable changes to the applicant’s study or proposed employment pathway. These considerations undertaken pursuant to Ministerial Direction No.69, do not satisfy the Tribunal that the Student visa may be used primarily for maintaining ongoing residence.

43. In considering the totality of the evidence, the Tribunal is not satisfied the student visa programme is being used to circumvent the intentions of the migration programme.

44. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

45. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    ·As the Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the criteria for a Subclass 500 (Student) visa, the Tribunal also remits the application of the second named applicant for reconsideration, with the direction that he satisfies the requirements of cl.500.311 of Schedule 2 to the Regulations.

    Peter Haag
    Member