Yarach (Migration)

[2023] AATA 4867

Yarach (Migration) [2023] AATA 4867 (13 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chonnaput Yarach

REPRESENTATIVE:  Mr Don Susantha Katugampala (MARN: 9601070)

CASE NUMBER:  2218347

HOME AFFAIRS REFERENCE(S):          BCC2016/1650607

MEMBER:Damian Creedon

DATE:13 December 2023

PLACE OF DECISION:  Perth

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

Statement made on 13 December 2023 at 2:49pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit Court remittal – genuine temporary entrant – Direction No.53 – academic history – inconsistent study pathway – unsatisfactory course progress – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 572.223

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 Immigration and Border Protection to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant applied for the visa on 5 May 2016. The delegate decided to refuse to grant the visa on 4 November 2016. 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 (Cth) (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).

3. 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 Migration Regulations 1994 (the Regulations).

4. The applicant applied to the Tribunal for a review of the delegate’s decision by an application lodged on 21 November 2016.

5. On 6 March 2018 the Tribunal affirmed the delegate’s decision (First Tribunal Decision). 

6. The applicant appealed the First Tribunal Decision to the (then) Federal Circuit Court of Australia (FCCA) by an application filed on 28 March 2018.

7. On 8 November 2022 the FCCA made orders, inter alia, that the applicant’s application be remitted the Tribunal for reconsideration.

   Reconsideration

8. The applicant appeared before the Tribunal on 12 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

9. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

10. At the conclusion of the hearing the applicant sought and was granted until 30 October 2023 to provide further information to the Tribunal.

11. On 30 October 2023 the applicant sought and was granted an extension of 14 days to provide the further information to the Tribunal.

12. On 13 November 2023 the applicant sought and was granted a further extension of 7 days to provide the further information to the Tribunal.

13. The applicant provided the further information by email dated 7 December 2023.  The further information is considered by the Tribunal in its analysis below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

15. 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)     …

    Does the applicant intend genuinely to stay in Australia temporarily?

16. 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.

17. 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.

18. In Kumar v Minister for Immigration and Border Protection[1] the Full Court of the Federal Court held that the Direction requires that, in reaching the state of satisfaction required by the subsequently enacted but analogous cl 500.212(a) of the Regulations, the decision maker should turn his or her attention to each factor during the decision-making process and consider whether and how that factor should be brought to bear in reaching that decision.[2]  The Court went on to note that:

    [The Direction] does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case.  Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.[3]

    [1] [2020] FCAFC 16 (24 February 2020).

    [2] Kumar, Para [82].

    [3] Kumar, Para [96].

    Overview of evidence

19. The applicant is a 42-year-old Thai national who first arrived in Australia on 24 July 2009 as the holder of a Student (TU570) visa.

20. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

21. The delegate’s decision record notes the following information:

    You were granted your initial Student (Class TU subclass 570) visa offshore on 3 July 2009, which was valid until 12 March 2010. You subsequently arrived in Australia on 24 July 2009. Departmental records indicate that since your initial arrival onshore you have held either a student visa or associated bridging visa.

22. The applicant’s Provider Registration and International Student Management System (PRISMS) record shows that since arriving onshore the applicant has successfully completed the following courses:[4]

    [4] On 7 December 2023 the applicant provided the Tribunal with copies of his qualifications, and/or transcripts of his results, for each of the courses marked with an asterisk.

Course Name	Date Commenced	Date Completed
General English Beginner to Advanced	17/08/2009	12/02/2010
Certificate III in ESL (Further Study)*	15/03/2010	31/07/2010
Certificate IV in Business*	15/10/2010	14/04/2011
Diploma of Business*	15/09/2011	14/03/2012
Diploma of Management	15/05/2012	14/11/2012
Certificate IV in Marketing*	15/01/2013	14/07/2013
Diploma of Marketing*	15/07/2013	14/01/2014
Advanced Diploma of Management*	15/01/2014	01/01/2015
Certificate III in Commercial Cookery*	19/12/2016	23/04/2017
Certificate IV in Commercial Cookery*	1/05/2017	13/12/2017

1. The PRISMS record also showed the applicant as having completed a Diploma of Hospitality Management between 19 February 2018 and 15 July 2018, however the applicant stated in oral evidence that he did not finish this course.  The applicant otherwise confirmed the accuracy of his PRISMS record.

2. Prior to the hearing the applicant provided the Tribunal with an Overseas Student Confirmation-of Enrolment (CoE) confirming that the applicant is presently enrolled in a Diploma of Hospitality Management which started on 10 October 2023 and is scheduled to end on 22 April 2024.

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

   Applicant’s oral evidence

4. The applicant’s oral evidence to the Tribunal may be summarised as follows:

   a.After the applicant confirmed the accuracy of his PRISMS record the Tribunal asked the applicant about two gaps in his study history:

   i.firstly, between January 2015 and December 2016: the applicant stated that he was a dependent on his partner’s student visa at this time and did not study;

   ii.secondly, between July 2018 and April 2024: the applicant stated that he was awaiting his student “visa outcome” to determine what he should do next.

   b.When asked about his first attempt at a Diploma of Hospitality Management between 19 February 2018 and 15 July 2018 the applicant stated that he did not finish this course as there was “too much homework” and he was stressed about his visa status.

   c.The applicant stated that that he was born in Chiang Mai province in Northern Thailand.  The applicant’s parents are resident in Thailand; he has one sibling, a younger sister, who is also resident in Thailand.

   d.The applicant completed his primary and secondary schooling in Thailand; after completing his third year of secondary school he completed a vocational certificate in “electrical power”.

   e.After completing his vocational certificate, the applicant was employed as a repair technician “repairing mobile phones”.  The applicant held this position until he decided to undertake study in Australia.

   f.When asked why he wished to undertake study in Australia, the applicant stated that at that time he felt that the mobile phone business was “already down” and was unable to provide the applicant with a living. He stated that he wished to find a new occupation and he felt that he would try studying in Australia to gain new experiences.

   g.When asked what pathway he intended to study at that time, the applicant stated that he tried “different types of occupations”, but finally decided upon cookery as having the potential to “expand” in his home country. When pressed by the Tribunal the applicant confirmed that he arrived at this conclusion in 2016.

   h.When asked what specifically about cookery attracted the applicant, he stated to the effect that chefs were in demand in Thailand, and he wished to obtain qualifications to support his experience.

   i.When pressed, the applicant stated that his family does not have a history of working in that industry in Thailand.

   j.When asked what his future career plan is should he completed his proposed Diploma of Hospitality Management, the applicant stated:

   Someone I know has invited me to go back and work in a hotel, but a certificate would be required to support my job application.

   k.The applicant stated, when pressed, that the hotel is in the “Bangkok area”; when asked whether the hotel has a name the applicant stated, “not yet”.  When further pressed the applicant stated that the hotels exist, but there are “many choices”.

   l.When asked if he planned to undertake any other courses in Australia after his existing course, the applicant stated:

   I am not sure yet; probably after graduation I might return immediately.

   m.The applicant put to the applicant that the course finished in “six or seven months” and asked the applicant whether he had any plans to find employment in that time; the applicant stated:

   Yes.

   n.When pressed for details on his plans the applicant stated that he would apply to “four or five places” after completing his course and deciding which was “suitable” for him.

   o.When asked whether he had obtained relevant work experience in Australia, the applicant stated that he had, having worked in the cookery industry in Australia in a Thai restaurant.  The applicant stated that “fusion/Thai” cuisine is becoming popular in Thailand and that he could adopt his experience.

   p.When asked whether he could obtain employment in Thailand now with his existing suite of qualifications, the applicant stated that it would be “difficult” for him to look for a job.  When pressed as to why, the applicant stated that restaurant require a minimum of a diploma-level qualification.

   q.The Tribunal then put to the applicant his PRISMS record in accordance with s.359AA noting that it was not concerned with entries recorded as “cancelled” or with the gaps in the applicant’s study.  In respect only of the certificate and diploma-level courses the applicant has completed in Australia, the Tribunal put to the applicant that it may conclude that the applicant had undertaken these courses, or series of courses, simply to maintain resident in Australia, and that this may be the reason or a part of the reason for affirming the decision under review.

   r.The applicant stated that when he first came onshore, he did not have any knowledge of business and that he wished to obtain that knowledge first, and that later he discovered that a certificate in cookery was required.

   s.The Tribunal then asked the applicant at the time he was studying marketing and business what he thought his career would be; the applicant stated in response that he wanted to “go back” to run his “personal business”; when pressed as to this plan, the applicant stated that he was thinking of “many things”, but that “COVID changed everything” and he needed to look for a job or employment, and that this is what prompted him to pursue qualifications in commercial cookery.

   t.The applicant stated that initially he wanted to establish his own business, but that COVID made this impossible, and instead he had to find a job, for which a diploma-level qualification was required.

   u.When asked whether, when he completed his Certificate IV in Commercial Cookery in December 2017, it was therefore an option for him to then return to Thailand to commence his own business, the applicant stated:

   At that time, I was unable to figure anything out yet but there were many choices around that time.

   v.When pressed, the applicant confirmed that he started a Diploma of Hospitality Management in February 2018.  When further pressed as to why he started that course at that time, the applicant stated:

   At that time when I applied for my visa there were different courses connected to each other, certificate iii, certificate iv and diploma.

   w.When pressed, the applicant confirmed that he meant a package of courses.  The applicant confirmed that he did not complete the Diploma of Hospitality Management at that time because there were problems with “a lot of homework” and his visa status.

   x.The applicant confirmed his belief that in the post-COVID world a Diploma is necessary for him to obtain employment in Thailand.

   Post-hearing submissions

5. By a letter dated 7 December 2023 the applicant submitted (materially):

   The Applicant under reference is a genuine student and despite the setbacks faced as a result of the Student Visa being refused, followed by a lengthy and drawn-out Tribunal and the Federal Court process, the Applicant continued to pursue his education at every juncture.

   The Applicant’s genuine intention was to study and obtain the required qualifications which was imperative to his career and future in the hospitality sector. The Applicant did not at any point misuse and/or in any manner disregard his intentions to pursue his education in Australia.

   …

   The Applicant’s intention to pursue his education in Australia was to establish himself independently. Obtaining the relevant qualification in Australia on a valid visa is critical for his future, The Applicant is hoping to clear his name and record of any refusals.

   After completing the said diploma, the Applicant will firmly commit to utilizing his expertise and knowledge to make valuable contributions to his native hospitality sector upon returning to Thailand. Currently Thailand’s tourism sector is booming post the pandemic and it is only expected to grow in the next few years. With these positive trends comes various opportunities in the food and beverage sector coupled with an Australian education, his opportunities in Thailand will be endless.

   With prior work experience in Australia and Thailand, the Applicant possesses the industry connections to set up his own business/venture upon his return.

   Analysis and findings

6. The applicant has been resident in Australia since his arrival onshore on 24 July 2009, some 14 years ago.  In that time, he has held a succession of temporary and associated bridging visas.  He presently holds a bridging visa pending the outcome of his application for a Student visa. 

7. The applicant’s evidence to the Tribunal is that he came onshore to obtain Australian qualifications and to enhance his employment prospects in his home country. Of themselves, although they are somewhat generic, these reasons suggest a rational and reasonable motive for an international student to choose to study in Australia and they weigh modestly in the applicant’s favour.

8. During his oral evidence the Tribunal raised two particular concerns with the applicant: firstly, that the applicant’s academic history does not disclose a consistent subject pathway; and secondly, that it does not disclose academic progress consistent with genuine academic pursuit.

9. In respect of the first concern the applicant claimed in oral evidence that he tried “different types of occupations” before settling upon cookery.  The applicant did not address the second concern directly, but instead relied upon “COVID” as necessitating his obtaining further diploma-level qualifications.

10. Notwithstanding that the Tribunal makes reasonable allowance for changes in the applicant’s study and career pathway, it finds the applicant’s explanations, both individually and in combination, vague and unpersuasive.

11. In respect of his future career prospects, the applicant referred to working in a hotel, however when pressed he was unable to name the hotel or provide any particulars in relation to it other than that it was in the “Bangkok area”.  He also referred to a proposed “business/venture” in his post-hearing submissions; the applicant stated:

    With prior work experience in Australia and Thailand, the Applicant possesses the industry connections to set up his own business/venture upon his return.

12. Despite being pressed at the hearing, the applicant has provided no evidence of the existence of any cogent plans for such business or venture, or how he proposes to generate income therefrom.  The lack of such evidence is of concern to the Tribunal, given that, at the time of the hearing, the applicant is some six months from finishing his studies in Australia. 

1. Overall, while the Tribunal is mindful that it must allow for reasonable changes to career or study pathways, it is not persuaded that the vague and generic claims made by the applicant in respect of his future career path are consistent with a positive study or career plan or that they represent a reliable expression of the applicant’s motives in making an application for a student visa.

2. Similarly, the applicant’s study history lacks consistency and overall achievement.  In his time onshore he has enrolled to study vocational-level courses in business, marketing and cookery and he is now enrolled to undertake further vocational-level studies in hospitality management.  The Tribunal considers that if the applicant was committed to persevering with and completing qualifications in Australia, he has already had every opportunity to do so.  Put simply, the Tribunal does not consider his academic progress of nine[5] vocational courses in 14 years to be that of a genuine student.

   [5] Excluding the applicant’s English-language courses.

3. The Tribunal accepts that, having lived in Australia for over 14 years, the applicant has sufficient knowledge of living here.  However, his knowledge of his proposed course provider(s) and his proposed course(s) of study, as outlined across his evidentiary materials, are basic in nature and generic in their expression.  Overall, the evidence lacks sufficient particularity to give the Tribunal confidence that the applicant’s choices in this regard are informed by genuine study and career goals or are made with the object of adding value to his future.

4. The applicant’s evidence is that he worked as a mobile phone technician in Thailand.  There is nothing in the materials before the Tribunal to suggest any relevance or connection between any work experience the applicant may have had in Thailand and his proposed course of study in Australia.  The Tribunal acknowledges that the applicant has worked as a cook in Australia and accepts that this experience is of some relevance to his proposed study.  Overall, however, the Tribunal places minimal weight on this factor in the applicant’s favour.

5. There is no evidence or information before the Tribunal of any military service or civil or political incidents that would act as a clear incentive for the applicant to remain in Australia and the applicant expressly claims to have no such concerns.  The Tribunal places some small weight on this factor in his favour.

6. The applicant’s parents and sister are resident in Thailand.  The Tribunal accepts that these personal ties, particularly to his parents, provide him with an incentive to return to Thailand at the conclusion of his studies.

Conclusion

1. The applicant has now been onshore for over 14 years.  In that time, he has completed:

   a.two certificate III-level courses;

   b.three certificate IV-level courses;

   c.three diploma-level courses; and

   d.one advanced diploma-level course.

2. The Applicant is currently enrolled in a further diploma-level course.  Considering all the evidence before it, the Tribunal finds that he has failed to progress academically in a manner consistent with genuine academic pursuit, and he has failed to adequately account for his lack of progress.

3. The Tribunal has read and had regard to each of the applicant’s written submissions, to his oral evidence, and to all of the materials he has provided, but has not found in them any persuasively expressed career or study pathway, even allowing for reasonable changes over time.  The Tribunal considers the applicant’s evidence in this regard to be inconsistent, vague, and generic. 

4. The Tribunal accepts that the applicant came onshore well qualified to begin study in Australia, and with genuine intentions to do so, and that he has personal ties to his home country, particularly his family ties there. 

5. Ultimately, however, the applicant’s lack of academic progression and unconvincing evidence as to his study and career goals persuades the Tribunal to the conclusion that his Student visa application is intended primarily for maintaining residence in Australia. 

6. 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).

7. 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

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

   Damian Creedon

   Member