Voeiyawatjamai (Migration)

[2020] AATA 6031

Voeiyawatjamai (Migration) [2020] AATA 6031 (28 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Patiparn Voeiyawatjamai

CASE NUMBER:  1820221

HOME AFFAIRS REFERENCE(S):          BCC2018/2159939

MEMBER:Michael Biviano

DATE:28 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 28 August 2020 at 5:30pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – evidence of enrolments – three arrivals on Visitor visas – change of career path – previous degree in Thailand – maintaining ongoing residence in Australia – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212

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 21 June 2018 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 18 May 2018. 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.

3. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the reason that he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 31 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 applicant for entry and stay as a student.

   Genuine applicant for entry and stay as a student (cl.500.212)

8. 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?

9. 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.

10. 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.

11. The applicant is a 27-year-old Thai national who obtained a Tourist (Class FA Subclass 600) visa on 1 May 2017. He came to Australia on 26 May 2017 on a tourist visa and departed on 24 August 2017. He returned to Australia for a second time on a tourist visa on 22 September 2017 and departed on 18 December 2017. Again on 18 February 2017 he returned to Australia for a third time on a tourist visa.

12. The applicant gave evidence that on each occasion he stayed with his aunt and uncle in Australia, and during each visit they showed him around and also gave him an insight as to how people live in Australia.

13. On 18 May 2018 he applied for a Student (Class TU) (Subclass 500) visa.

14. The Decision Record of the delegate of the Department of Home Affairs dated 25 June 2018, which was provided to the Tribunal by the applicant, confirms the applicant made the current application for a Student Class TU Subclass 500 visa on 18 May 2018 (Decision Record). Further, the Decision Record confirms that the applicant has resided in Australia on a tourist visa and a bridging visa.

15. The Decision Record confirms that at the time of applying for the visa, he was proposing to study a General English course, followed by a General English (Elementary to Upper Intermediate) course, and his studies would have concluded on 21 June 2019.

16. On 9 December 2019 the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student information about the courses he was studying and had studied in Australia, together with information about his entry and stay in Australia in accordance with s.359(2) of the Act (the Response). The Response included the following supporting documents:

    a.Passport extract;

    b.Confirmation of Enrolment (CoE) numbered AC446920 to study the Certificate IV in Business at Westminster College commencing on 12 August 2019 with an expected completion date of 9 August 2020;

    c.CoE numbered AC448A90 to study the Diploma of Leadership and Management at Westminster College commencing on 10 August 2020 with an expected completion date of 8 August 2021;

    d.CoE numbered AC448A92 to study the Advanced Diploma of Leadership and Management at Westminster College commencing on 9 August 2021 with an expected completion date of 7 August 2022; and

    e.Transcript of the applicant from King Mongkut’s Institute of Technology Ladkrabang, Bangkok, dated 30 June 2015.

17. Shortly after the hearing, the applicant submitted further documents to the Tribunal in support of his application. The documentation included CoEs and documentation from education providers about the English courses that he had undertaken at Victory Institute. The Tribunal accepts that he has undertaken those courses.

18. Prior to coming to Australia, the applicant obtained a Bachelor of Engineering at King Mongkut’s Institute of Technology, which he completed in May 2015.

19. The Decision Record confirms that the applicant had declared in his application for his visa that he had been previously employed as a General Manager for Baan Kanom Pung from 1 June 2015 to 7 May 2017. The applicant in the Response did not disclose that employment and his evidence at the hearing was that he could not find a job in Thailand because of his poor English skills and he needed to complete English studies in Australia to improve his job prospects in Thailand. The Tribunal finds that the applicant’s evidence and application are inconsistent.

20. The applicant gave evidence that he had only decided to study in Australia on his third visit to Australia and that he had a return airline ticket to Thailand when he came out to Australia. He claimed that on his third visit he spoke to his aunt and uncle and told them he wanted to study in Australia, and his uncle and aunt agreed to pay for the tuition costs.

21. However, the applicant’s evidence on this issue is inconsistent with what occurred. The applicant came to Australia 3 times on a tourist visa on the basis that he would remain in Australia for 3 months and then leave the country. He admitted on the second visit to Australia he looked at schools at which he could study English, and where his sister could study in Australia. He examined and researched the schools and their cost. Having undertaken that research, and then deciding to return to Australia within 6 weeks of his visit to Australia, the Tribunal is not satisfied that the applicant came to Australia on his third visit as a tourist, rather he came for the purpose of study which was inconsistent with the purpose of the tourist visa. If the applicant intended to study in Australia, he should have applied for a study visa offshore.

22. The applicant, having completed the English courses, enrolled to study a Certificate IV in Business, a Diploma in Leadership and Management, and then an Advanced Diploma of Leadership and Management at Westminster College (Westminster Courses). The enrolments in those courses conclude on 7 August 2022, which will result in the applicant having been in Australia for 5 years and 3 months, which is a long period of time and inconsistent with the stay being temporary.

23. The applicant gave evidence that he is studying the Westminster Courses to improve his English skills and leadership skills which would enhance his prospects to obtain employment as an engineer in an international company back in Thailand.

24. The applicant has changed his career path initially from engineering to business to leadership and management. The courses that the applicant has undertaken are not connected and not complementary to one another. They do not lead to a career path or position in employment. The studying of a Certificate IV in Business does not lead to a job as an engineer. If the applicant’s primary objective was to improve his English skills, then he should have undertaken intensive English studies.

25. The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However, this is not the case when an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses. The courses which the applicant has commenced and studied whilst in Australia have all been short VET courses including the Certificate IV and it is his intention to complete a Diploma and Advanced Diploma. The Westminster Courses that he is studying and he intends on studying do not reveal progression in his course of study and are inconsistent with his level of education, which includes a bachelor’s degree back in Thailand.

26. The applicant was questioned about the value of studying the Westminster Courses. The applicant gave evidence that it would assist him in getting a job in Thailand as an engineer in an international firm because he would have improved English skills. The Tribunal, having regard to the applicant’s current qualifications, accepts that these courses will marginally improve his employment prospects and level of remuneration in Thailand, having regard to previous qualifications in Australia and Thailand.

27. When questioned about whether there were other similar courses he could study in Thailand, the applicant claimed he could undertake business and management courses in Thailand, but they were not in English, not as practical as those in Australia and would not give him the confidence the Australian qualifications would give him. The Tribunal is not satisfied that the applicant had reasonable motives to study this course in Australia rather than in his home country.

28. The applicant has lived in Australia for more than 3 years and 3 months. He has a substantial degree of knowledge of living in Australia. The applicant has studied at Westminster College for over one year, and the Tribunal accepts that he has a substantial degree of knowledge about the courses he is studying and intends on studying, and also about the course provider.

29. The applicant has not worked in Australia and does not receive an income, which would not provide him with an incentive to remain in Australia. However, the applicant’s living expenses and tuition costs are being met by his aunt from here in Australia, which would not provide him with an incentive to return home to Thailand.

30. The applicant gave evidence that if he returned to Thailand, he would expect to work as an engineer with English skills earning 20,000 Thai baht per calendar month, which equates to $1,000 per calendar month. The applicant conceded that if he obtained employment in a similar position in Australia, the income that he would receive in that position would be substantially higher than the income he would receive in Thailand which would not present the applicant with a significant incentive to return to Thailand and provide him with an incentive to remain in Australia.

31. The applicant further conceded that the economic conditions in Thailand are not as favourable as those in Australia, which also would also provide a significant incentive for him not to return home to Thailand and provide him with an incentive to remain in Australia.

32. The applicant has returned home to Thailand twice during his stay in Australia, when he returned home between the first and second visits for a total of 11 weeks, over the 3 years and 3 months he has stayed in Australia. The applicant has not been in Thailand since February 2018, and has not returned home in the last 2½ years, and the Tribunal finds that the applicant’s conduct is consistent with him wanting to stay in Australia permanently and not return home.

33. The applicant does not have any assets in Thailand and that would not provide him with a significant incentive for him to return home.

34. In light of the applicant having lived in Australia for the past 3 years and 3 months and that he intends to stay and study in Australia for at least a further 2 years, coupled with his living arrangements, his circumstances in Australia being supported by his aunt and uncle, and that he has the potential to earn a higher level of income in Australia, they present the applicant with a significant incentive to stay in Australia.

35. The applicant in the Response and in evidence confirmed that he did not have any concerns about returning to Thailand and he had no concerns about military service commitments or political and civil unrest in his own country. The Tribunal finds that they do not present as a significant incentive for him not to return home.

36. The Tribunal finds that based on the applicant’s evidence and circumstances in his home country (including the assets of his family, including substantial property holdings, together with his education and the support that he has and would receive from his family back home) relative to others in that country, he is in a good position and that would not provide a significant incentive for him not to return home.

37. The applicant has personal ties in Australia and in Thailand.

38. The applicant gave evidence that his parents reside in Thailand with one of his sisters and that would ordinarily provide him with a significant incentive to return home, however he has not seen them in person since February 2018, which is more than 2 years ago. He claims that he is close with his family and contacts them regularly by telephone and FaceTime. However, he intends to stay in Australia for at least a further 2 years. When coupled with his circumstances in Australia, the Tribunal finds that such ties do not provide a significant incentive for him to return home to Thailand.

39. The applicant has substantial ties to Australia. He has stable living arrangements and has lived in Australia for a substantial period of time. He is living with his aunt and uncle, who are supporting him financially. His sister is also living in Australia with another uncle, which is another relative in Australia, who he claims he is close to. His sister is also studying in Australia and has a student visa. The applicant claims that he is looking after his sister which presents as a strong tie to Australia. The applicant also has friends in Australia. The Tribunal finds that those ties demonstrate that he has a strong incentive to remain in Australia rather than to return home.

40. The applicant in his Response has not identified that he was refused any other visa or had a visa cancelled in Australia or elsewhere.

41. The applicant gave evidence that he is not in breach of any of his visa conditions.

42. Based on the above matters, the Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily and it considers that the primary objective of the application is to maintain an ongoing residence in Australia and to remain in Australia permanently.

43. The applicant has been in Australia for a considerable period time and wishes to stay for at least a further 2 years. On the basis of the above, the Tribunal is not satisfied that the applicant intends to remain in Australia temporarily.

44. 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) of the Regulations.

45. 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

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

    Michael Biviano
    Member

    
    

    Attachment – 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.