1421133 (Migration)

[2016] AATA 3336

1421133 (Migration) [2016] AATA 3336 (24 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jin Young Ryoo

CASE NUMBER:  1421133

DIBP REFERENCE(S):  BCC2014/2866608

MEMBER:Miriam Holmes

DATE:24 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 24 February 2016 at 9:58am

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 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 to the Department of Immigration for the visa on 29 October 2014. The delegate decided to refuse to grant the visa on 17 December 2014. 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 (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 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily.  

4. The applicant was invited to appear before the Tribunal on 5 February 2016 to give evidence and present arguments. On 29 January 2016 the Tribunal received a response to the hearing invitation noting that the applicant is not able to attend the scheduled hearing but no reason was provided setting out why the applicant was not able to attend. In the email from the applicant’s agent it was noted that the applicant would provide a written statement and other evidence by 1 February 2016. On 4 February 2015 the Tribunal received various documents from the applicant’s agent. On 5 February the applicant did not attend the hearing at the scheduled time and place.  The Tribunal notes the hearing invitation indicates that if the applicant does not attend the hearing a decision may be made on the review without taking any further action to allow the applicant to appear. It has been almost three weeks since the scheduled hearing and the Tribunal has received no other information or communication from the applicant or her agent. The Tribunal did consider whether it should ask for any additional information from the applicant, however the Tribunal set out in its invitation to the hearing the issue under consideration by the Tribunal, a request for documents and invited the applicant to provide a statement  addressing the issue of whether the applicant is a genuine temporary entrant and enclosed a copy of Direction No. 53 setting out the matters the Tribunal was required to consider and notes that it is a matter for the applicant to provide the information in support of their visa application. In the circumstances, the Tribunal proceeded to make a decision taking into account the information available.   

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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)     …

9. 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.

10. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

11. The applicant was born in 1988 in Korea and is now aged 28 years. In the visa application the applicant made no reference to her parents and as there is no other evidence available, the Tribunal can make no finding as to their location, age or working status. Although in the letter submitted to the Department by email on 28 November 2014 the applicant notes that she has a supportive family and her parents have supported her in every step of her life and she has discussed her career plan and her parents will be supporting her emotionally and financially.  In the visa application she noted that her closest relative living in her home country is her sister who currently resides in Korea. In the visa application the applicant refers to her brother, although does not indicate where he resides. In the visa application the applicant records that she has never been married or in a de facto relationship.

12. There is no evidence before the Tribunal in relation to whether the applicant has any financial ties to Korea such as assets, income or employment in Korea.

13. The Tribunal had regard to the applicant’s migration history. The applicant is a citizen of Korea. In early 2005 the applicant arrived in Australia on a Student (subclass 571) visa which was in effect until 15 March 2008. The Tribunal noted this visa subclass is granted for the purposes of overseas student undertaking secondary school studies in Australia. In December 2007 the applicant was awarded her year 12 VCE certificate in Australia.  

14. On 10 April 2008 the applicant was granted a Student (subclass 573) visa whilst onshore. The visa was in effect until 19 April 2010. On 19 April 2010 the applicant was granted a second student (subclass 573) visa that was valid until 30 September 2013. On 30 October 2013 the applicant was granted a third student (subclass 573) visa until 15 March 2016. The Tribunal is considering the applicant’s request for a fourth student visa.

15. Whilst in Australia the applicant has been enrolled in a number of tertiary courses, but she has successfully completed only one course.

    ·Between 25 February 2008 and 12 February 2010 the applicant undertook and completed a Diploma of Health Sciences at Deakin College.

    ·The applicant was enrolled in a Bachelor of Health Sciences but did not complete this course.

    ·Between July 2010 and July 2012 the applicant undertook studies in a Bachelor of Nursing at The Australian Catholic University. The applicant successfully completed some subjects in that period. The applicant did not complete the course.

    ·On 16 October 2012 the applicant was offered a place at RMIT University in their Diploma of Nursing course between 11 February 2013 and 31 December 2014 and Bachelor of Nursing course between February 2015 and December 2016. On 28 July 2014 RMIT University issued a release letter to the applicant as the applicant wished to be released from the program to transfer to another education provider. On the evidence available the Tribunal cannot make any finding as to whether the applicant completed any part of the studies pertaining to the Diploma of Nursing.

16. The Tribunal finds that in the period of 6 years that the applicant held a student (subclass 573) visa which is a visa for higher education, the applicant undertook several health related courses but only successfully completed a Diploma level course over a two year period. Over the remaining four years the applicant failed to complete a tertiary level course and the Tribunal has evidence that the applicant successfully undertook some subjects in the Bachelor of Nursing between 2010 and 2012. There is no evidence the applicant completed any subjects in her studies between 2012 and 2014. The applicant’s history as a student since 2010 indicate that the applicant has failed to progress in her studies, that she has enrolled in multiple courses and failed to complete any course successfully. The Tribunal considers the applicant’s course history and lack of progress between 2010 and 2014 is indicative that the applicant does not intend genuinely to stay in Australia temporarily.

17. For the purposes of the current student visa application the applicant provided to the Department confirmation of enrolment in the following courses - On or about April 2014 the applicant enrolled in Certificate III in Commercial Cookery for the period 28 July 2014 until 5 July 2015, a Certificate IV in Commercial Cookery from 20 July 2015 until 20 December 2015 and a Diploma of Hospitality from 1 February 2016 until 3 July 2016. The applicant has provided to the Tribunal a letter dated 28 January 2016 from the Academia International institution stating that she is currently a full time student and has successfully completed most of her studies and the diploma qualification is due to be completed on 1 July 2016.

18. In the visa application, the applicant states that she would like to study cookery. “this is what I like and I want to learn about how to cook the Western food.” She also refers to her like of cooking and she has more opportunity than in her country.

19. In relation to the visa application under consideration by the Tribunal, the applicant provided a letter to the Department by email on 28 November 2014. In that letter the applicant noted that studied nursing at RMIT and really liked it but after being at a workplace she realised that her ability to cope with stress and grief of patients is low and it made her “depress”.  She stated that whilst she was studying she worked part time as a waitress in a Korean restaurant and used to assist in cooking with the chef. She stated that the staff and positive feedback that she received inspired her to pursue a career in cooking. She noted that she had experience in Korean cooking in Korea. The applicant refers to the benefits of studying in Melbourne and she can learn not only about Korean food but also the “vast variety of food from different cultures”. The applicant refers to taking her skills back to Korea and giving the exposure of the taste to “my people”.   

20. The applicant provided a business plan to establish a restaurant to the Tribunal. It noted that the restaurant would serve Western style food and listed various food items that would be included in the menu, such as Panzanella salad, potato and rosemary focaccia, gnocchi and tiramisu. In the business plan the applicant refers to the quality of the food and that the pricing will require her to compare with other restaurants and to check the ingredient’s prices.  The Tribunal considered the business plan was extremely brief and provided very little detail as to the proposal and planning to establish a restaurant.

21. In addition the applicant provided a work reference from Joe Shin of Korean BBQ in Box Hill. The Tribunal notes the work reference is in the same font and style as the business plan prepared by the applicant. In the work reference letter it states that the applicant has been employed as a chef at the restaurant for 2 years and makes a brief comments regarding the applicant’s attributes in the work place. The Tribunal did not receive any other documentation to corroborate this employment such as payslips, PAYG summary or other documents. The Tribunal placed limited weight on the work reference.

22. The Tribunal would have been assisted in determining the issue of whether the applicant intends genuinely to stay in Australia temporarily if the applicant attended the hearing. However, the applicant indicated that she could not attend the hearing but provided no reason why and did not request a postponement, rather the applicant provided additional documentary information for the Tribunal to consider. The Tribunal has assessed this additional information.

23. After considering the applicant’s circumstances, immigration history and other relevant matters, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.  The applicant travelled to Australia in 2005 at the age of 17 years and completed her secondary education in Australia. Over the last ten years the applicant has remained in Australia and pursued her tertiary studies. The Tribunal considered that the applicant has settled in Australia. It is unclear where the applicant’s family reside, apart from her sister in Korea. It appears that even if the applicant’s family reside in Korea the applicant has chosen to remain in Australia for the last 10 years and any family ties in Korea do not appear to be a significant incentive to return to Korea. Similarly there is no evidence that the applicant has any economic ties to Korea – such as any assets, income or employment in Korea.  The applicant has only successfully completed one tertiary course in 2010 – a Diploma of Health Sciences – despite being enrolled in numerous courses in the higher education sector. The applicant failed to successfully complete any course between 2011 and 2014 and in that period enrolled in multiple courses at different institutions in the health field. Since 2008 the applicant held three higher education student visas. Since 2014 the applicant has pursued a course in commercial cookery and hospitality. The Tribunal notes the vocational courses are significantly cheaper and low cost courses in comparison to the higher education courses.  The applicant states that she decided to pursue a different career due to the upset she suffered when studying the health courses and that she had positive feedback and experience whilst working part time as a waitress at a Korean restaurant. She states in her visa application that she wants to learn about western food and she likes cooking. In the statement of purpose the applicant refers to leaning a vast variety of food from different cultures. The applicant also provided evidence that she has worked for 2 years, albeit in a Korean restaurant. There is little evidence corroborating her account of why she changed career course and her work in the hospitality industry. The business plan provided to the Tribunal has little detail and the Tribunal did not consider the applicant’s reasons for changing course and her business plan indicate that she intends to return to Korea to open a restaurant or work as a cook. Further, she states that she wishes to return to cook Western food, but her only work experience in Australia is in a Korean restaurant. The applicant has attended her commercial cookery studies since 2014 – this is a factor indicating that she is genuine temporary entrant. The applicant has not submitted any information relating to her remuneration and employment prospects in Korea  in pursuing her cooking studies. The Tribunal considered the applicant’s purpose in pursuing her cooking and hospitality studies is primarily for the purpose of maintaining ongoing residence. After balancing the matters above, the Tribunal the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.

24. 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).

25. 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

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

    Miriam Holmes
    Senior Member