Yarach (Migration)

[2018] AATA 2179

Yarach (Migration) [2018] AATA 2179 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chonnaput Yarach

CASE NUMBER:  1619566

DIBP REFERENCE(S):  BCC2016/1650607

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          6 March 2018 at 4:25 pm (VIC time)

DATE OF WRITTEN RECORD:                4 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector visa) – Genuine Temporary Entrant – Failed to provide requested evidence – Significant study gaps – Maintaining ongoing residency in Australia – Dependent visa – Relationship breakdown– Poor study record – Decision under review affirmed

LEGISLATION
Migration Regulations 1994, Schedule 2, cl 572.223

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 November 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).

2. At the hearing on 6 March 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. To be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the regulations.

4. You applied for a student visa on 5 May 2016. Your application was refused on 4 November 2016 because having considered your circumstances, the delegate was not satisfied you met the Genuine Temporary Entrant criteria and therefore did not satisfy clause 572.223 which is a criterion that must be satisfied for an applicant to be granted a visa.

5. You appealed the decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.

6. To satisfy 572.223 an applicant must be both a genuine student and a genuine temporary entrant.

7. To be a genuine student you must be engaged and applying yourself to a meaningful programme of study, progressing academically down an identifiable path.

8. To be a genuine temporary entrant your circumstances must indicate a genuine intention to remain in Australia temporarily.

9. When considering if an applicant meets the genuine temporary entrant criteria, decision-makers must have regard to what is known as Ministerial Direction No. 53 and the issues in that direction. They were detailed in the primary decision and they include:

   ·     Your circumstances

   ·     The value of your course/s to your future

   ·     Your Immigration history

   ·     Your incentive to stay in Australia or return home

   ·     If you are using the student visa programme to maintain ongoing residence in Australia

   ·     Any other relevant matters

10. This is not meant as a checklist but as a guide for decision-makers to weigh up an applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criteria.

11. The role of the Tribunal is to take a fresh look at your application, consider your circumstances and the issues in Direction No.53 and be satisfied you are a genuine student who intends to stay in Australia temporarily.

12. You told the Tribunal you had read and understood the primary decision which was discussed in detail. We read from the decision and it appeared you understood why the decision had been made.

13. The primary decision and its detailed references to the issues of Direction No 53 put your notice of the issues in your case.

14. With the hearing invitation we advised we would assess whether you met the genuine temporary entrant requirements again putting you on notice of the issues we would consider and asked you to provide a statement addressing the issues in Direction No. 53.

15. Your agent provided a submission detailing your study history in Australia however it did not address the issues in Direction No 53 and we have discussed some of those issues here today.

16. The study history you provided indicates some significant study gaps, for example from 12 February 2010 to 15 October 2010, from May to September 2011 and from March 2012 until January 2013.

17. You were asked to provide an explanation of these gaps in studies but no explanation was provided and when I ask you about them today you are unable to provide any satisfactory explanation.

18. The Tribunal does not believe such gaps in studies are the behaviour of a genuine student, they are a breach of a condition of your visa and the fact you failed to provide the requested evidence is not the behaviour of somebody keen to be granted a visa to study.

19. You came to Australia as a 28 year old in 2009. Before coming you said you had qualified and worked as an Industrial Technician and had a business working on mobile phones. You said you had done a certificate in electronics but that your business failed.

20. You said in a statement that you came to Australia to learn a trade and gain an advantage in the Thai job market. You arrived enrolled to study Automotive Mechanical Technology as you wished to gain a qualification as a mechanic.

21. You did not study that course but decided instead to study a Certificate IV in Business which you commenced in October 2010.

22. You were then enrolled in a number of short, relatively inexpensive courses;  Diploma of Business, Diploma of Management, Certificate IV in Marketing, Diploma of Marketing and an Advanced Diploma of Marketing which you completed in December 2014.

23. As discussed, the Tribunal questions why the courses you chose to study contained units you had previously completed in other courses however you got no recognition of prior learning, for example the Certificate IV in Marketing you were granted for completing 10 units, 4 of which you had previously completed in the Certificate IV Business. Of the 10 units in the Certificate IV in Business, 6 of the units were contained in other courses you had previously studied.

24. This leads the Tribunal to find that either you did not research the courses you chose to study, or alternatively you chose those courses not in the pursuit of academic progression but to maintain residence in Australia

25. Your last student visa was as a dependent on your then partner’s visa. That visa was granted in May 2015 and you told the Tribunal you got that visa because you had been with your partner for approximately two years before that.

26. You also told the Tribunal that that relationship broke down in August 2015, yet you remained on that dependent visa until it expired on 5 May 2016. There is no evidence you notified the Department of your change in status and you applied for this visa on the day that that visa expired. So you remained on that visa illegitimately and the timing indicates your motivation was not academic progression but to remain resident in Australia.

27. You came here in 2009, eight and a half years ago to study to become a mechanic - study that would normally take 3 years. If you had come to train to qualify as a chef that training could also have been completed in about three years.

28. You say you started working as a chef in 2009 and cooking became your passion. You did not start studying cooking or hospitality studies until 2016. The Tribunal finds it implausible that you would spend 7 years studying unrelated courses if cooking was your passion and you were already working in that field.

29. The Tribunal finds you have been working as a cook, studying unrelated courses and only after many years decided to study cooking and even then you have not managed to complete your most recent course in the scheduled time.

30. You have not completed courses in any discipline you came here for as a  mechanic or as a chef and now seek to remain longer

31. You say your parents are separated and you need to go home and look after your mother. While that may provide some incentive to return, you appear settled in Australia. You have provided a range of references stating you have worked since shortly after you arrived.

32. One of those references states you worked as a cook from 2009 to 2013 for 20 hours a week. You also provided a CV that shows that during that same period you worked as a cook for 20 hours a week, from February 2010 to December 2010 you were working as a casual in the production department of Accent Global factory in Clayton, from January 2011 to June 2011 you were working as a casual curtain assembler at Gilligan’s Blinds and from August 2011 to June 2012 at Oaks on Lonsdale. So if you were working 20 hours a week as a cook and also doing those other roles, you were clearly working a lot more than the 40 hours per fortnight you are permitted to work on a student visa. The fact you have had such disregard for your visa conditions means I am not satisfied you would abide by conditions attaching to any future visa.

33. While you say it is your intention to return home, having been here for over 8½ years you now seek to remain longer. Your words and your actions seem to be different. The Tribunal believes your current circumstances present as a strong incentive to remain in Australia and does not believe you have provided evidence of any incentive to return which outweighs the issues we have discussed and your immigration history

34. You were asked to provide evidence of current enrolment and you provided evidence you are enrolled in a Diploma of Hospitality Management scheduled to run until 15 July 2018 however that course commenced on 15 February this year and your enrolment in that course was subject to you completing units in the Certificate IV you have not completed in your previous course which was scheduled for completion in December 2017.

35. You provided the Tribunal today evidence you have submitted four assignments at the end of February 2018 for assessment in the Certificate IV however you have provided no evidence you have completed any units in that course and so the Tribunal does not know if or when you are able to start the Diploma of Hospitality Management which enrolment is subject to you having completed the Certificate IV.

36. You have already completed III Commercial Cookery which is the practical element of Commercial Cooking and you have provided evidence you have been working as a cook or chef for over 8 years. You say you wish to start a restaurant. The Tribunal does not believe your proposed studies will add significant value to your future as a cook or to open a restaurant beyond what you have already completed and done on the job.

37. You say Thai people like to see certificates, well the Tribunal believes you have a host of them that you are able to put up on the wall.

38. You have a history of enrolment in short relatively inexpensive courses in unrelated disciplines of Automotive, Business, Management, Marketing and now Hospitality.  The Tribunal does not believe your studies are a defined program leading to a career pathway but rather you are seeking to use the student visa programme to maintain residence in Australia.

39. Since arriving you have had 4 student visas. This application is for your 5^th student visa and you are requesting a visa to stay until at least July 2018 and that is if you had commenced the course that started some weeks ago; this will bring your total time in Australia on temporary visas to more than 9 years.

40. While I accept that some educational and career pathways require extensive study, I am not satisfied you have established your future goals fall into this category. The Tribunal finds it difficult to reconcile your extensive proposed stay in Australia with your claim you are a genuine temporary resident but rather believes you are seeking to use the student visa program to remain resident in Australia.

41. In your first course in Australia, the ELICOS course at Hales, your record shows you only achieved a level of 2 in each category and your attendance was marked as unsatisfactory, being below 80%.

42. You claim to be an experienced and competent cook, yet your intended Diploma of Hospitality is subject to you finishing units you did not satisfactorily complete in your Cert IV of Commercial Cookery that was scheduled for completion in December last year. The Tribunal believes this indicates you are not a genuine student.

43. You have significant study gaps for which you have provided no satisfactory explanation

44. Student visas are granted with the expectation the visa holder will remain enrolled and studying and progressing academically.

45. As already stated the Tribunal does not believe your study history or academic progress is that of a genuine student and does not believe your responses provides a satisfactory explanation for your behaviour and study gaps which the Tribunal finds is not that of a genuine student.

46. As noted in the primary decision, your previous student visa was current until 5 May 2016 which was the same day you lodged this visa application. The Tribunal finds that the timing of these events indicates your motivation is not academic progression, but to be granted a visa.

47. Having considered your circumstances as a whole, including the issues in Direction No 53, I am not satisfied you are a genuine student or that you intend to stay in Australia temporarily. Therefore I find you do not meet clause 572.223(1)(a).

    DECISION

48. The Tribunal affirms the decision under review.

    Tim Connellan
    Member