Teppitak (Migration) - [2021] AATA 3633

Teppitak (Migration) [2021] AATA 3633 (19 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Nattakan Teppitak
CASE NUMBER:  1929710
HOME AFFAIRS REFERENCE(S):          BCC2019/4467817
MEMBER:Deputy President J.L Redfern PSM
DATE:19 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 19 July 2021 at 12:10 PM
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – whether the applicant meets the genuine temporary entrant criterion – applicant invited to provide information under s.359(2) of the Act – applicant provided written consent for the Tribunal to proceed to a decision without a hearing – Tribunal not satisfied that the applicant has intention genuinely to stay temporarily – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth), ss. 65, 359, 359C,360, 363A, 379A and 499
Migration Regulations 1994 (Cth), Sch 2 cl.500.2
CASES
Bala v Minister for Immigration and Border Protection [2019] FCA 600
Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40
Singh v Minister for Immigration & Anor [2018] FCCA 3423
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 69, 18 April 2016
President’s Direction, Conducting Migration and Refugee Reviews, 1 August 2018
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 October 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
I affirm the decision under review. My reasons follow.
BACKGROUND AND RELEVANT LAW
The applicant is a 37-year-old national from Thailand. She applied for a student visa on 6 September 2019. In her application for the visa, the applicant stated that she was enrolled in a Diploma of Project Management from August 2019 and following this, the Advanced Diploma of Program Management, commencing in August 2020 and finishing in August 2021. It is recorded in her application that the applicant has completed five courses in Australia since March 2012. According to the applicant, she wanted to acquire these qualifications so that she could work with her cousin who was the co-founder of a business consultancy group in Thailand.
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.
For the visa to be granted, the applicant is required to meet the primary criteria set out in cl.500.2 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. These primary criteria include requirements relating to enrolment (cl.500.211), access to funds and financial capacity (cl.500.214) and being a genuine applicant for entry and stay as a student (cl.500.212). The applicant must also satisfy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Teppitak (Migration) [2021] AATA 3633
Case: [2021] AATA 3633
Decision Date: 19 July 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) reviewed a decision concerning the applicant, a 37-year-old national from Thailand, who applied for a Subclass 500 (Student) visa. The applicant sought to undertake a Diploma of Project Management followed by an Advanced Diploma of Program Management in Australia, stating her intention to use these qualifications to assist her cousin's business consultancy group in Thailand. The core of the dispute revolved around whether the applicant met the genuine temporary entrant (GTE) criterion, a requirement for the visa under Schedule 2 of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant satisfied the primary criteria for a Subclass 500 visa, specifically the genuine temporary entrant criterion as stipulated in clause 500.212(a) of the Migration Regulations 1994, and whether she genuinely intended to stay in Australia temporarily and comply with visa conditions. The Tribunal was required to consider the applicant's circumstances in her home country and in Australia, the value of the proposed course to her future, and her immigration history, in accordance with Direction No. 69 issued under section 499 of the Migration Act 1958.

The Tribunal affirmed the decision not to grant the visa. The Deputy President considered the applicant's extensive history of study in Australia since 2012, including multiple changes in her course of study, and her previous visa status as a dependent on her partner's student visa. While the applicant stated her intention to return to Thailand to work with her cousin and expressed a desire to spend her life with her family, the Tribunal was not satisfied that these stated intentions were genuinely held. The Tribunal noted that the applicant had provided consent to proceed to a decision without a hearing, and based on the material before it, concluded that the applicant had not demonstrated a genuine intention to temporarily remain in Australia for the purpose of study.

Orders

Orders of the court

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Background

Background to the litigation

I affirm the decision under review. My reasons follow.BACKGROUND AND RELEVANT LAW The applicant is a 37-year-old national from Thailand. She applied for a student visa on 6 September 2019. In her application for the visa, the applicant stated that she was enrolled in a Diploma of Project Management from August 2019 and following this, the Advanced Diploma of Program Management, commencing in August 2020 and finishing in August 2021. It is recorded in her application that the applicant has completed five courses in Australia since March 2012. According to the applicant, she wanted to acquire these qualifications so that she could work with her cousin who was the co-founder of a business consultancy group in Thailand. 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. For the visa to be granted, the applicant is required to meet the primary criteria set out in cl.500.2 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. These primary criteria include requirements relating to enrolment (cl.500.211), access to funds and financial capacity (cl.500.214) and being a genuine applicant for entry and stay as a student (cl.500.212). The applicant must also satisfy health insurance and public interest criteria and, if required by the Minister, to satisfy specified English proficiency requirements.[1] Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. All criteria must be satisfied at the time a decision is made on the application.[1] Clauses 500.215, 500.213 and 500.217 respectively of Schedule 2 to the Regulations. Clause 500.211 provides that an applicant must meet one of the alternative grounds contained in the clause, including the requirement to be enrolled in a ‘course of study’ which is defined in cl.500.111 to mean, amongst other things, study in a full-time ‘registered course'. A ‘registered course’ means 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 (reg 1.03 of the Regulations). Clause 500.212 requires that the applicant be a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily[2] and intends to comply with any condition this subject to which the visa is granted.[3] There is a further requirement that the applicant meet any other relevant matter.[4] There are no other relevant matters prescribed and this is a broad provision which allows the decision-maker to have regard to other relevant factors that might indicate the applicant is not a genuine student. Departmental guidelines, which are not binding but instructive, state that the decision-maker should only refuse to grant a visa under cl.500.212(c) if the applicant satisfies all other Schedule 2 criteria, including the genuine temporary entrant criterion. [2] Clause 500.212(a) of Schedule 2 to the Regulations.[3] Clause 500.212(b) of Schedule 2 to the Regulations.[4] Clause 500.212(c) of Schedule 2 to the Regulations.

Evidence

Evidence Before The Court

For an applicant to respond thus it is necessary for them to expressly choose this option in the online form. I am therefore satisfied that the applicant has consented to the review without a hearing and there is nothing before me to suggest that this consent is other than informed. Accordingly, having regard to the applicant’s consent and the relevant legislative provisions, I have decided to proceed to determine the review on the basis of the material provided by the applicant to the Department and to the Tribunal.OUTLINE OF EVIDENCE The application for the applicant’s student visa was lodged online and submitted by a migration agent. The applicant answered all questions in the application and the following is a summary of the information provided in the application and in the accompanying documents:(1)The applicant had resided in the Khao Yoi District in Thailand. She has three immediate family members who resided in Thailand, being her parents and younger brother. The application does not make reference to any relatives living in Australia. (2)The applicant has a Bachelor of Arts from Silpakorn University in Thailand and she has completed a number of courses in Australia, including an English course in 2012, and an Advanced Diploma of Marketing (October 2015 to October 2016).(3)In answer to the question about whether she had visited any countries in the past 10 years, the applicant answered ‘yes’ being Australia, Laos and Thailand nine times from 2012 for short periods for a ‘family visit’. (4)In answer to the questions about whether she had ever been convicted of any offence, the applicant responded to the negative, including in answer the question about whether she had ever been removed, deported or excluded from any country. (5)The applicant provided a number of documents in support of her application, including financial information, health insurance details, details about her previous qualifications and transcripts of the courses completed, including a transcript of her bachelor degree completed in Thailand, a family tree for the Teppitak family and a letter said to be from the General Manager of a company known as Much More Marketing Co, Ltd dated 2 September 2019 offering her the position of Project manager in the company’s ‘new marketing scheme in Malaysia and Laos in 2021 and 2022’. The applicant also provided a document, translated into English, dated 26 June 2019 purporting to be a certificate in relation to the registration of Much More Marketing Co Ltd, which was stated to have been registered on 5 July 2018, with one of the directors being the General manager who signed the letter of 2 September 2019.(6)In addition to this documentation, the applicant provided a statement in support to the following effect. (7)The applicant stated that she graduated from university in March 2006 and after she graduated, she got a job at Philip Morris where she worked as a customer sales and service support officer for about three years. The applicant stated that she wanted to improve herself and therefore decided to enter the Australian working holiday program. After her work finished, she decided to return to Australia as a student and enrolled in an English program which commenced in March 2012. She also enrolled in a Diploma of Accounting but changed her study to Diploma of Information Technology (Multimedia) because she believed her English was not good enough for the Diploma of Accounting. She then updated this course to a Diploma of Digital Media Technologies and then subsequently enrolled in a Diploma of Business and Advanced Diploma of Management. She encountered difficulties and in 2015, after careful consideration, decided to change her study plan to study English and then an Advanced Diploma of Marketing which she completed in October 2016. (8)During her study in Australia, the applicant stated that she was in the relation relationship with someone and they had been together for about five years. Her partner decided that she wanted to return to study and the applicant changed her visa to be a dependent on her partner’s student visa from 2017 to 2019. However, they broke up after this and, in discussion with her family, she was told that her cousin, who was a co-founder of Much More Marketing Co Ltd, wanted someone to help with her company. She discussed this with her cousin who advised her to obtain project management qualifications. After consultation with her family she decided to do this. (9)The applicant further stated that her future was very difficult to predict but she believed her education in Australia would benefit her in the long-term to return to Thailand after completing her Advanced Diploma of Program Management. The applicant stated that she loved Thailand and that she wanted to spend the rest of her life with her family and friends and that she had no plans to live permanently in Australia.

Decision

Reasons for decision

Given the above findings, I find 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 decision not to grant the applicant a Student (Temporary) (Class TU) visa.J.L Redfern PSMDeputy PresidentAttachment – Direction No.69DIRECTION 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 2016Peter DuttonMinister for Immigration and Border ProtectionNote: 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 - PreliminaryName of DirectionThis 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.CommencementThis Direction commences on 1 July 2016.InterpretationAct 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) visaStudent Guardian visa means a Subclass 590 (Student Guardian) visa.ApplicationThis 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.PreambleThe 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; andb.the applicant’s immigration history; andc.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; andd.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 temporarilyPart 2 of Direction No. 69 - DirectionsAssessing the genuine temporary entrant criterion1.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; andb.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; andd.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 circumstances6.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 country9.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; ande.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 Australia11.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; ande.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 future12.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; andb.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; andc.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 history13.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; andii.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; andiv.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-complianceIf the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant15.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 matters16.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.

Ratio Decidendi

Legal Principle Established

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