1507706 (Migration)

[2016] AATA 3469

1507706 (Migration) [2016] AATA 3469 (5 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Hei Yeong Chya Rhee
Mr Seong Su Rhee

CASE NUMBER:  1507706

DIBP REFERENCE(S):  CLF2015/9021

MEMBER:R. C. Titterton

DATE:5 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 05 March 2016 at 1:20pm

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 13 February 2015. The delegate decided to refuse to grant the visas on 26 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(1) of Schedule 2 to the Regulations. A copy of the delegate’s decision of 26 May 2015 was provided to the Tribunal by the first-named applicant. The delegate came to his conclusion on the basis of a range of matters including:

   (a)the first-named applicant was granted her initial visa (subclass 554) offshore and arrived in Australia on 4 September 1990. Departmental records indicated that since her arrival she had either held a student Visa or an associated bridging Visa;

   (b)she has resided in Australia since 1990, and has not spent any significant period of time outside Australia;

   (c)records and evidence submitted indicated that the first-named applicant had studied several vocational courses in Australia including the Diploma of Business (1996 to 1998), a Diploma of Naturopathy (1992 to 1996) and Advanced Diploma of Traditional Chinese Medicine (2011 to 2015);

   (d)the first-named applicant and her husband, the second named applicant, had been running a business in Australia, Alpha Level Floor Sanding Services at least since 2006;

   (e)the first-named applicant was proposing further study in Australia which would bring the period of her stay in Australia to over 27 years.

4. The applicants appeared before the Tribunal on 18 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(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)    …

7. 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.

8. 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.

9. The first-named applicant confirmed at the hearing that she was born in 1957 in South Korea. She is currently 58 years of age. Her she has one brother, a Church Minister, who lives in Sydney. Her mother, who is now 84 years of age, also lives in Sydney with the first-named applicant’s brother. The brother has lived in Sydney with his family since 1988. After completing high school in South Korea, the first-named applicant undertook a Diploma of Nursing, and then worked as a paediatric nurse. A daughter was born in 1984, and a son shortly afterwards. Very sadly, the applicants are now estranged from their children.

10. The family moved to Australia in 1990. In doing so though influenced by the fact that the first-named applicant’s brother had been living in Sydney since 1988. The first-named applicant had provided a resume to the Tribunal. This sets out her educational history in Australia. It was as follows:

    ·1990-1991: English;

    ·1991 to 1992: Physical Therapies;

    ·1996: Certificate course, IELTS;

    ·1992 to 1996: Diploma of Naturopathy;

    ·1996-1998: Diploma of Business;

    ·2011-2015: Advanced Diploma of captured traditional Chinese Medicine;

    ·2015: Certificate in Business III.

11. At the time of the hearing, the applicant was studying the Certificate IV in Business. She has been approved for a Diploma of Management commencing July 2016.

12. In relation to her work history, the applicant explained that in her early years in Australia she brought up the children. She undertook the physical therapies and naturopathy courses as she thought they had some relevance to her nursing background, and could provide her with complementary treatment therapies for people with illnesses. She undertook the certificates in business, and then the diploma, as in those days she could not use a computer and she wanted to learn new skills and which she thought would assist her in finding future employment. She also hoped to start a Chinese Medicine business.

13. During the hearing, the first-named applicant made reference to a delay by the Department of Immigration. This was explained in her statutory declaration applicant dated 23 November 2015 in which the applicant stated:

    5.Since I came to Australia in 1990, I have been following all the conditions imposed on me as a full-fee paying overseas student except the period from August 1998 to January 2011 (when I was informed by the Department of Immigration to my status and I had no option but to wait for the decision for 13 years).

    6.Finally, I was able to receive my status recognised in 2011 and I have been continuing with my study since then.

    7. Due to the extremely delayed findings by the Department of Immigration, I was not able to do much for about 13 years and have lost many opportunities to redeem my temporary status to a permanent one during this period.

    8.However, since my student status was fully recovered, I was able to continue and complete some of useful courses which would enable me to pursue a career in that field and I am currently working as a part-time Chinese Medicine Practitioner and studying on a full-time basis.

    9.I think my latest student Visa application was rejected due to the view taken by the Department of Immigration that I was not a genuine student as I have been in this country since 1990. However, from August 1998 to January 2011, it was not my fault and I had to continuing wait for the decision from the Department of immigration.

    10.      I’m still unclear as to why they took that long to review my status

14. The Tribunal asked the first-named applicant to address its concerns that because of the length of time she had remain in Australia, she may not satisfy the Department generally genuine temporary entry criterion. The Tribunal noted that the applicant had now spent more a very long period of time in Australia, almost half her life; that she had established the business here with her husband; and that her 84-year-old mother lived in Sydney together with her brother, to whom she was very close. In response, the first-named applicant stated that that part of the reason she had been put here for so long was because of the Department’s delay. She says that whenever she did have a student visa she was a genuine student who studied very hard. She thought it unfair that she was not considered to be a genuine student.

15. The Tribunal accepts the evidence from the first-named applicant about the genuineness of her studies. She has clearly worked very hard in Australia for a very long period of time, and applied herself diligently to supporting her husband in his business, and supporting her family, particularly including her mother. Unfortunately, having considered all the matters raised by the first-named applicant, and take into consideration Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act, the Tribunal is of the view that the first-named applicant does not intend genuinely to stay in Australia temporarily. That criterion provides that the Minister (here the Tribunal) be satisfied that an applicant intends genuinely to stay in Australia temporarily, having regard to their circumstances, immigration history and any other relevant matter.

16. The Tribunal finds that all the relevant factors point against the first-named applicant intending genuinely to stay in Australia temporarily. The Tribunal finds on the evidence before it that the first-named applicant has no good reason to return to South Korea, and indeed, has every reason to remain in Australia. The Tribunal has reached this conclusion on the basis of the following matters:

    (a)the first-named applicant has lived in Australia and made a home here since 1990;

    (b)the immigration history shows that the first-named applicant has overwhelmingly spent the bulk of her time in Australia since arriving here in 1990 (the delegate’s decision records that as a 26 May 2015, she had spent only 138 days outside of Australia since 1990);

    (c)the first-named applicant has no close relatives in Korea, and her 84 year old mother lives with her only brother in Sydney;

    (d)while the first-named applicant is estranged from her two children, her children live in Australia (her daughter in Sydney, her son in Perth;

    (e)the first-named applicant’s husband still operates his floor sanding business in Sydney, in which business she assists by taking phone calls.

17. The Tribunal accepts that, the first-named applicant had good reasons for her various courses, it has no doubt she was a conscientious student and a genuine one. Unfortunately for her, the genuine temporary entrant criterion requires satisfactory of the temporary nature of an entrant’s stay. The Tribunal cannot be satisfied of this factor as the first-named applicant has lived in Australia since 1990, and on all the evidence available to it, the Tribunal finds that she proposes to remain here for the foreseeable future.

18. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. 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 first-named 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 first-named applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    OTHER

20. As discussed with the applicants at the conclusion of the hearing, the Tribunal recommends that the applicants obtain migration and legal advice about their circumstances as soon as possible.

    R. C. Titterton
    Member