1507309 (Migration)

[2016] AATA 3285

1507309 (Migration) [2016] AATA 3285 (11 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Suk Yeung Lee
Mr Jae Won Kang

CASE NUMBER:  1507309

DIBP REFERENCE(S):  BCC2015/841653

MEMBER:Miriam Holmes

DATE:11 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 11 February 2016 at 9:49am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 16 March 2015. The delegate decided to refuse to grant the visas on 12 May 2015. 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 visas 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, Mrs Lee, intends genuinely to stay in Australia temporarily. Mr Kang’s application was refused as he did not meet the requirement in cl.572.322.

4. The applicant, Mrs Lee appeared before the Tribunal on behalf of both applicants on 7 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicants were represented in relation to the review by their 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, as the applicant has enrolled in an English Language Program and a Certificate III in Commercial Cookery.

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 Tribunal had regard to the following matters in considering whether it is satisfied that the applicant, Mrs Lee, intends genuinely to stay in Australia temporarily.

12. The applicant was born in 1963 in South Korea and is aged 52 years and is a citizen of South Korea. The applicant is married to the secondary applicant, Mr Kang.  They married in 1990. The secondary applicant was born in 1959 in Korea and is aged 56 years and is a citizen of South Korea. Whilst in Korea the secondary applicant worked as a navy official.

13. The applicant and secondary applicant have two sons, born in 1991 and 1993 in Korea. Their eldest son, Sung Wook Kang, is currently in Korea and undertaking his military service. Between 2004 and 2013 their eldest son resided in Australia. The eldest son returned to Korea in 2013 when his Australian student visa application was refused. The eldest son commenced military service as required as a Korean in June 2015 and is expected to serve for a period of 18 to 19 months. The applicant stated that she believed the student visa application was refused because of communication issues with the Department. After returning to Korea, the eldest son commenced working full time as an interpreter for international soccer players and teams. He is now working as an interpreter in the Korean army.

14. Their youngest son, Sungsan Kang, aged 22 years, currently lives in Australia. He completed his secondary education in Australia in 2011. Mr Sungsan Kang went to university and undertook a degree in medical research. In 2015 the youngest son completed his degree and he has applied to commence an Honours degree course in 2016 in Australia. They are waiting to see if he is accepted into the course. She thinks according to feedback from the lecturers that it is very positive.

15. After the applicant completed her secondary education in Korea she undertook a Bachelor of Music between 1984 and 1987at Chu Gye University in South Korea. She studied traditional Korean music and traditional Korean music instruments. Between 1987 and 1993 the applicant worked at various primary schools in after hours programs on a casual basis. She worked primarily as a music teacher.

16. Between 1993 and 1999 the applicant worked as a music teacher at the Docheon Primary School, Korea. Between 1999 and 2004 the applicant taught at a school where her sons attended an after-hours school program. She chose at that time to give priority to her primary responsibility of caring for her children over her career. She thought it was most important in that period that she give her sons the care they required and so undertook this work.

17. On 10 November 2004 the applicant and her two sons arrived in Australia on visitor visas. It was the first trip for the applicant and her two sons in travelling to Australia. The secondary applicant arrived early in 2005 as he needed to complete financial arrangements in Korea which took additional time.

18. The applicant and her representative told the Tribunal that in 2004 the applicant and the secondary visa applicant had the assistance of a migration agent in making arrangements to travel to Australia. The applicant stated that her migration agent advised her that a nomination for a business visa had been granted to her and her husband. That is the Tasmanian government nomination for them to travel to Australia had been granted. The applicant stated that the migration agent advised her and her husband that as the nomination visa application had been granted they had qualified to be granted permanent residency in Australia. She stated that they believed the migration agent and they started packing to travel to stay in Australia. She later realised that the migration agent was telling lies and they had been swindled by the migration agent. She said they packed up and sent all their belongings to Australia. She stated that the children quit their education in Korea on the anticipation that they were moving to Australia. However, in about September 2004 they then learnt that the business visa applications had been rejected. Their migration agent then suggested to the applicant and the secondary applicant that if they were to travel to Australia and then arrived and purchase a business, they could apply for subclass 457 visas. The applicant stated that the plan thereafter was to come to Australia on a visitor visa and buy a business in Australia and then apply for a 457 visa. They did arrive in Australia on the visitor visas and they purchased the Morning Glory stationery shop for approximately $26,000 in 2004. They then applied for subclass 457 visas however their visa applications were rejected.

19. The applicant confirmed that she was on bridging visas between 2005 and 2008. The representative for the applicant stated that the applicants’ 457 visa application that was lodged included an address for a PO Box which was supposed to be monitored by the migration agent. However the PO Box was not monitored and it was discovered the agents were fraudulent and they did not receive the correspondence from the Department and the applicants were concerned they became unlawful. At that time they did apply to the Tribunal and received a positive result in relation to their status. After the 457 visa applications were refused, the applicant and secondary applicant applied for subclass 580 (Student Guardian) visas. 

20. Between 13 February 2008 and 17 February 2011 the applicant held two Student Guardian (subclass 580) visas on the basis that she was caring for her two sons who were students in Australia. The secondary applicant was not granted a student guardian visa so he returned to Korea and lived in Korea between 2008 and 2011.

21. Between 2008 and 2011 the applicant looked after her children. She took them to and from school and provided for all their home care. She undertook studies in English to improve her own English. The applicant stated that she really wished to study in that period but she had made a promise and had to care for her children. The applicant undertook home duties and she also worked as a volunteer for some organisations. The applicant also stated that because she is a performer she did perform at various events with the Department of Education, specifically multicultural events. Her youngest son completed his secondary schooling in 2011.

22. After caring for the children for 14 years the applicant decided to pursue her own dream of teaching children. Consequently she enrolled in a Certificate III in Children’s Services course and applied for a student visa.

23. On 17 February 2011 the applicant was granted a student (subclass 572) visa until 7 March 2013. In 2011 the applicant studied for a Certificate II in Spoken and Written English and a Certificate III in Spoken and Written English at Tasmanian Polytechnic. The applicant stated that she undertook studies in English to assist her in undertaking the vocational certificate III courses. She stated at that time she did not have an IELTs score and so had to undertake English courses.

24. In 2012 the applicant successfully undertook studies in a Certificate III in Children’s Services at Tasmanian Polytechnic. The applicant was granted her Certificate III in Children’s services on 27 September 2012.

25. On 26 April 2013 the applicant was granted a student (subclass 572) visa until 3 January 2014. This was the applicant’s second student visa. In 2013 the applicant successfully studied a Diploma of Children’s Services. The applicant was granted her Diploma of Children’s Services on 25 February 2014.

26. The applicant told the Tribunal that she pursued the studies in relation to children’s services as she was interested to study in Australia while her son was studying. She stated that she wanted to continue from her previous studies that she had undertaken in Korea. She stated that her purpose in the long term was that if she learnt from Australia she could utilise this in the Korean system and perhaps teach back in the Korean system or open a childcare centre in Korea, when her youngest son completes his study. After she completed the Certificate III in Children’s Services and the Diploma in Children’s Services she was offered a position at a childcare centre. She worked there for a short period, for approximately 6 months at the Lady Garrick childcare centre. She stated that she found that her English language was not as good as she would like and that she want to learn more English so that she was more familiar with Australian culture and communication especially to assist her communication with parents.

27. On 3 January 2014 the applicant was granted a student (subclass 572) until 15 March 2015. This was the applicant’s third student visa.  In 2014 the applicant undertook a Certificate III in Aged Care and a Certificate III in Home and Community Care at TasTAFE. Each of these courses took a period of six months. On 12 December 2014 the applicant was awarded her Certificate III in Aged Care and her Certificate III in Home and Community Care. The Tribunal asked why the applicant undertook these courses. The applicant stated that she loved to look after people and to be a help. She stated that she felt she needed to improve her English and her friend working in the education department suggested that to learn English she needed more practical experience of English. The Tribunal noted that it considers it rather odd to be studying aged care and home and community care for the purposes of learning English. She stated that whilst she was working at the childcare centre she felt that she was a misunderstood a lot because of the cultural gaps between Australia and Korea. She stated that she wanted to understand, she also said that at that time her mother was sick and she wished to learn how to care for her mother although unfortunately her mother passed away before she did return to Korea.

28. In July 2014 the applicant commenced working at Kingston Early Learning Centre. She commenced by working 20 hours a week. She worked at the Kingston Early Learning Centre between July 2014 and March 2015. She ceased working there in March 2015 as she received a letter from the Department advising her that she could no longer work. The Tribunal notes that in March 2015 condition 8101 (no work condition) was imposed on the applicant’s bridging visa.

29. On 16 March 2015 the applicant lodged her fourth student visa application. This is the application under consideration by the Tribunal. The applicant proposed to undertake an English language course between March 2015 and November 2015 and then to undertake a Certificate III in Commercial Cookery between February 2016 and December 2016.

30. The applicant told the Tribunal that she had recently completed her English language course. The Tribunal asked the applicant why she had lodged a fourth student visa application to undertake these further studies. The applicant stated that before she goes back to Korea she wants to improve herself, as well as to get qualifications to assist in widening her opportunities for work in Korea. She stated that the IELTS score was important role of obtaining work in Korea. After the hearing the applicant provided a letter from TasTAFE dated 23 November 2015 confirming the applicant was enrolled in the Academic English Preparation Program from March 2015 until November 2015 and attendance was 85%.

31. The applicant stated that the proposed cooking course would help her a lot and it was very important in Korea. The Tribunal queried why she needed to complete the cooking qualification. The applicant stated that whilst working at the childcare centre she realised the importance of food to children. She stated that she knows quite well Korean cooking which she has given to her children, but she is not familiar with western styles of cooking and tastes. She said that tastes were important to children. She stated she wanted to work and obtain professional expertise in order to support children. She stated that when she manages a childcare centre or works with children in a childcare centre she wished to have professional knowledge in relation to cooking. The Tribunal asked what was her plan going forward. She stated that she wants to apply her knowledge into her lifestyle and to improve her communication in the child care community with both children and parents and have knowledge of the relevant terminology and for nutrition. She wished to work not based on common sense, but with the professional understanding that she can be a better worker in the field. The Tribunal asked her what was her plan for her and her husband and she stated that she has started her child care career pretty late and that she wishes to obtain a proper qualification and knowledge so that she can run her own childcare centre in Korea.

32. The secondary visa applicant returned to Australia in 2011. Since that time he has been working 20 hours per week in farming and other areas in Australia. She said that he has worked actively in a voluntary capacity in the Christian community.

33. The Tribunal asked the applicant what assets she had in Korea and she stated that her husband receives a pension from his military service. She stated that they also own property. The applicant’s representative also stated that they own two retail shops in a commercial building in Korea and that from next year they will be able to sell that property and this will assist them financially. They also lease a residential property in Korea. After the hearing, a further submission provided by the representative stated that Mr Kang owns the two retail properties in Seoul but due to security reasons he cannot obtain the purchasing documentation. The representative states the two properties will be listed for sale in January 2016 and that Mr Kang is planning to go to South Korea to pay tax for the property and send funds from their savings. No further documentation was provided.

34. The Tribunal asked the applicant how often she had returned to Korea since arriving in 2004 and she stated that she had returned she thinks on four occasions. She confirmed that she returned to Korea between 28 December 2007 and 23 February 2008, between 18 February 2010 and 13 March 2010, and between 27 January 2011 and 24 February 2011. It is clear the applicant has not returned to Korea in the last four years.

35. The Tribunal expressed its concern on the material available as to whether it can be satisfied that the applicant intends genuinely to stay in Australia temporarily. The Tribunal noted the circumstances in which the applicant and her family travelled to Australia in 2004, that they have resided in Australia since that time and that she has returned to Korea only on three occasions. Further, in that time, the applicant has held three student visas and is now applying for her fourth student visa. She has undertaken studies in aged care and home and community care which is not relevant to her former career and further is not relevant to her proposed career of opening a childcare centre working with young children. Further she has nominated that she wishes to study cooking and the Tribunal has reservations that this would be relevant for the purposes of working in the childcare field or opening a childcare facility. Further the Tribunal took into account that the applicant’s son is currently in Australia and has lived in Australia for some time, and hoping to study for the foreseeable future. The Tribunal noted on one view, it would appear that the applicant has settled in Australia since 2004. In response the applicant made the following comments. At first when coming to Australia she was swindled by her migration agent. She stated that they were going to apply for a business visa. Next, she applied for a student visa because she valued her sons’ education and obtaining an overseas education, so chose for them to study in Australia. She then had to care for her children and herself in that period. She believed that it was important for her family to stay together. Further her younger son suffered stomach problems and she needed to remain in Australia to cook for him. She stated that she understood well the Tribunal is concerned in relation to her aged care studies but her aged care studies taught her about people and it was very good experience and very important for her career in the childcare industry. She said that her childcare studies were directly related to her purpose. The applicant noted that she had a business card from a Professor from Korea who had offered her an opportunity to work in his school when she had completed her study in Australia. The representative explained that a University Professor on exchange from Korea has spoken with the applicant and was interested in her study and knowledge in Australia and was offering her an opportunity when she returned to Korea. She believes that her past experience will help were in practically and reliably in the future.

1. The Tribunal noted its concern that the applicant was using the student visa program as a means to remain in Australia to be with her youngest son as long as possible while he is in Australia. The applicant stated that yes when she read the Department’s decision in relation to her it gave her a lot of feelings. She has the strongest impression of the lifestyle in Australia and the children in Australia. She understands people who exploit the opportunity of learning in Australia for a bad purpose but that’s not her, she has good intentions in staying in Australia. She stated that she has done her very best in her studies and she has lived in Australia for some time now. Her initial difficulty was caused by her bad agent who swindled the family. She considers that this application is her last opportunity for her to study. She stated that she thought that Australians and the Australian government appreciated people who like to study and she has lived overseas for 10 years now but she is tired of living overseas. She stated that she wants her dream to come true and this will happen when she completes her study and goes back to Korea. She stated that she has found it difficult whilst in Australia. She said she has done her best and she has won some awards from the tertiary institution and she is proud of what she has overcome to achieve these things. The applicant became upset when responding to this issue.

2. This matter was adjourned for the applicant to provide additional information. The Tribunal subsequently received further information which it took into consideration.

3. After the hearing the Tribunal received a copy of an email from Professor Kum Taek Seo dated 9 June 2015. This email notes the author is a Professor of Early Child Education in Korea and the author asks the applicant for information about the pathway to be an early childhood teacher in Australia. In the submission lodged by the representative it states that Professor  Seo also asked the applicant to speak as a guest lecturer at Suweon University but the applicant declined the invitation.

4. The Tribunal has carefully considered the matter and is not satisfied after having regard to the applicant’s circumstances, immigration history and other matters it considers relevant that the applicant intends genuinely to stay in Australia temporarily.

5. Firstly the Tribunal considered the history of residence of the applicant and her family.  The applicant has lived in Australia for 11 years since 2004. For most of that period she has resided in Australia with her two sons.  Her youngest son continues to reside in Australia and is undertaking further tertiary studies. The applicant has stated that she wishes to remain in Australia whilst her son is studying. The Tribunal took into account that the applicant has only returned to Korea three times in the last eleven years. The Tribunal notes that the applicant has one son currently residing in Korea who is undertaking military service in Korea for a discrete period. The eldest son only returned to Korea after his student visa application was refused. The secondary applicant has been living in Australia since 2011, although makes an annual trip back to Korea.  The applicant has returned infrequently returns to Korea over eleven years. The Tribunal considered the history of the applicant’s residence for over 11 years in Australia since 2004, with her two children, and her infrequent trips to Korea strongly indicate that the applicant has settled in Australia. Further the current residence of her youngest son and husband in Australia indicates the applicant has strong ties to Australia – specifically noting she stated that wished to remain in Australia whilst her youngest son was studying.  The Tribunal considered the applicant’s long residence in Australia over ten years, and the ongoing residence of her youngest son indicate the applicant has strong ties to Australia and very limited ties to Korea (her eldest son). The Tribunal placed significant weight on this factor and notes that it is strongly indicative that the applicant does not intend genuinely to stay in Australia temporarily.

6. The Tribunal also took into account that the original plan for the applicant and her family was to settle in Australia and for this reason they sold all their goods in Korea and moved all their belongings to Australia. The initial business visa was unsuccessful, but the family persisted with their plan to live in Australia and arrived on visitor visas and then purchased a business with a view to securing a business visa to remain in Australia. Again, this was unsuccessful but the applicant then successfully applied for student visas for her sons and a student guardian visa for herself and she settled in Australia and raised her sons in Australia for several years. Since 2011 the applicant has remained in Australia on student visas and has held three student visas in that time. The current application is for a fourth student visa. The Tribunal considered the applicant’s migration history, particularly the steps by the family to seek to come to Australia permanently and moving all their goods to Australia for this purpose, in conjunction with their residence in Australia since 2004, is strongly indicative that the applicant does not intend genuinely to stay in Australia temporarily. 

7. The Tribunal took into consideration the applicant’s student and work history. In Korea the applicant undertook studies in music and worked as a music teacher in primary schools. After traveling to Australia in 2004 the applicant undertook no work or study. The applicant resumed studies in 2011, and undertook two English language courses. The applicant then completed studies in Children’s Services between 2012 and 2014. In 2014 the applicant undertook a Certificate III in Aged Care and a Certificate III in Home and Community Care at TasTAFE. These courses were a significant departure from her previous studies and employment. Further, these courses have no relevance to the applicant’s stated intention of returning to Korea to work in the child care industry or obtaining other employment in the education sector in Korea. The applicant states she undertook these courses for the purposes of improving her English language skills – however the Tribunal was not persuaded these courses were to assist the applicant in improving her English skills, noting she had previously undertaken English courses and later in 2015 undertook a further English language course for 30 weeks. The applicant also stated that she completed these courses to assist in caring for her mother in Korea. Again, the Tribunal was not persuaded the applicant undertook the courses for this purpose noting the applicant’s mother resided in Korea and the applicant was residing in Australia with her family and working in Australia in the child care industry.  The applicant then pursued her English studies – she states to assist in securing employment in Korea. The Tribunal accepts that having English language skills may improve the applicant’s prospects of obtaining employment in Korea. However the Tribunal is not persuaded that the applicant pursued a further English course with the primary purpose to assist her job prospects in Korea – noting that she speaks Korean – the language of Korea and her plan was to open a child care centre in Korea or in the education sector in Korea. Finally, the applicant proposes to study commercial cookery in 2016. The applicant states that this is relevant to her plans to open a childcare centre in Korea. Whilst the Tribunal appreciates that childcare centres are required to provide food to the children in its care, the Tribunal is not persuaded that the commercial cookery course is directly relevant to the applicant’s plan to operate of a child care centre and will improve her prospects of opening a child care centre or obtaining employment in the childcare sector or education sector in Korea. The Tribunal noted the evidence that the applicant had been offered an opportunity in education by Professor Seo from Korea who specialises in early child hood education; although in Tasmania the Professor is a visiting research professor in the School of Engineering and ICT. The Tribunal accepts the Professor has asked the applicant for information and invited her to be a guest speaker, however the Tribunal is not satisfied that the applicant has been offered any employment in Korea or has any employment arrangement in place. Further, there is no evidence before the Tribunal of any specific plans that have been made regarding the establishment and operation of a childcare centre in Korea.  The Tribunal considered that the applicant’s various courses of study over time were indicative that the applicant is utilising the student visa primarily for maintaining ongoing residence in Australia.

8. Further the Tribunal took into consideration that the applicant has two retail properties currently in Korea and a lease for a residential property in Korea. However the Tribunal notes that the lease for the residential property is an annual lease and the applicant has resided in Australia for the last 11 years. In relation to the retail properties the Tribunal notes that they are anticipated to be sold in 2016 and therefore will be liquidated and the sums available for use as needed by the applicant and her husband. The secondary applicant receives a pension from Korea, although it appears this is payable to the secondary applicant whilst he is residing in Australia. The Tribunal accepts the applicant has financial ties to Korea, however the Tribunal did not consider these ties demonstrated a strong incentive to return to Korea.

9. The Tribunal took into consideration that the applicant has worked in Australia in the childcare sector and generated an income in Australia and the applicant only ceased working when a no work condition was placed on her visa. The Tribunal considers the applicant’s potential to resume work in Australia under a student visa and to secure ongoing work is an incentive to remain in Australia and assessed this is indicative that the applicant does not intend genuinely to stay in Australia temporarily.

10. 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).

11. 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.

12. In relation to the secondary applicant, Mr Kang, as the applicant does not meet the primary criteria in cl.572.223 the Tribunal cannot be satisfied that the secondary applicant meets the requirements in cl.572.322. Therefore the decision in respect of the secondary applicant must also be affirmed.

    DECISION

13. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Miriam Holmes
    Senior Member