1508574 (Migration)

[2016] AATA 3591

1508574 (Migration) [2016] AATA 3591 (21 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Misun Jung
Mr Sangjoon Kim
Miss Hyunmin Kim

CASE NUMBER:  1508574

DIBP REFERENCE(S):  BCC2015/1256698

MEMBER:Mara Moustafine

DATE:21 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 21 March 2016 at 1:59pm

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

2. The applicants applied to the Department of Immigration for the visas on 30 April 2015. The delegate decided to refuse to grant the visas on 16 June 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 on the basis that the applicant did not satisfy the requirements of cl.573.223 of Schedule 2 to the Regulations because she was not satisfied that the applicant genuinely intends a temporary stay in Australia having regard to his circumstances, immigration history, and other relevant matters.

4. The applicants appeared before the Tribunal on 7 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. The applicants were represented in relation to the review by their registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573.223.

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 delegate's decision record, a copy of which the applicant provided to the Tribunal, indicates that she first arrived in Australia on 16 June 2008 on a TU subclass 572 Student dependent visa valid until 2 April 2009. On that date she was granted another TU subclass 572 valid until 12 May 2011 to undertake courses in General English (Beginner to Advanced), Certificate III in Hairdressing, Certificate IV in Hairdressing and Diploma of Hairdressing. On 22 March 2011 she was included as a dependent on an application for a Temporary Work Skilled (Class UC Subclass 457) visa, which was granted on 12 May 2011 and was valid until 12 May 2015.

10.  On 30 April 2015 the applicant lodged an application for a TU subclass 573 Student visa to undertake a package of courses including Certificate IV in Ministry, Diploma of Ministry, an Advanced Diploma of Ministry and Bachelor of Applied Theology. These courses commenced on 27/07/2015 and are due for completion on 22/11/2019, extending the applicant’s length of stay in Australia on various visas to more than ten years.

11.  On 1 May 2015, the Department wrote to the applicant inviting her to comment on her circumstances in relation to the genuine temporary entrant (GTE) criterion.  In her response of 29 May 2015, the applicant stated, variously:

"I have got my faith toward God since I came to Australia. My religion encouraged me to endure the lonely overseas life and my faith became increasingly deepened. I wanted to live with God more closely, and finally decided to be a pastor or missionary, so I planned to study ministry and theology after expiry of 475 visa from a few years ago. With the religious study and training, I really want to work for a church when I return back to Korea".

"I worked at Smart College for 1 year from July 2012, then I do not have any employment history as I have been a house wife".

"My husband's parents who are in eighties live in Korea. It is common in Korean culture that the first son in a family takes care of the old parents. My husband always thinks about the parents a lot because the parents are getting old. As he really wants to live with his old parents, we will live together when we return to Korea".

12.  In her decision of 16 June 2015 the delegate concluded that the applicant was not a genuine applicant for entry and stay as a student and that she intended to stay in Australia temporarily but was using the Student visa program to circumvent permanent migration programs. The delegate highlighted that:

a.The applicant did not study during the four years when she was the holder of a secondary UC-457 visa (12/05/2011 to 12/05/2015), had no study limitations and was only employed for one year (01/07/2012 to 30/06/2013). 

b.The courses she was seeking to undertake were inconsistent with her educational background and did not relate to the Certificate III in Hairdressing and Certificate IV in Business, which she had completed since arriving in Australia in 2008.

c.Departmental records indicated that, notwithstanding her comments about her husband’s attachment to his parents at paragraph 12 above, he had never departed Australia since his arrival in 2008; and the applicant and her dependent daughter had only been away for 34 days in 2013. This suggested that the family did not have strong ties to Korea.

d.The applicant applied for her Student visa on 30 April 2015 and her confirmation of enrolments were issued on the same day, which suggested that she recommenced studying for the purposes of securing a student visa, rather than due to a genuine interest in this area of study and overall academic progress.

e.Her statements about her previous studies and future intentions indicated that her purpose in remaining in Australia was unrelated to study.

13.  On 5 and 6 January 2016 ahead of her hearing the applicant’s representative provided to the Tribunal a submission, key relevant points in which were:

a.    The applicant has strong incentive to return to Korea upon completion of the current studies in theology as she had received a job offer of a ministry position in Korea. She and her husband also have an apartment complex, which belonged to their aged parents, where they used to live until they left for Australia.

b.    Apart from the applicant’s brother, who lives in Australia, the applicants do not have any family or relatives in Australia. Nor do they have any jobs or significant assets in Australia. They are renting a townhouse and survive on previous savings.

c.    The applicant went to a Christian missionary school throughout her middle and high school years in Korea and slowly developed her Christian faith as a schoolgirl. She continued to go to church in Korea and hoped she would one day teach the Bible in Sunday school. However as a married woman she had to look after her husband and daughter.

d.    The applicant continued to go to church with her husband and daughter in Australia and they have been long-term members of the Doorae church in Sydney since their arrival. The applicant served in the church as a Deacon and a Sunday school teacher for many years.

e.    She first discussed studying theology with a Korean church minister to whom she was introduced when he visited Australia. He has supported her calling, offering her a ministry position in his church in Korea should she pursue her theology studies.

f.   As the applicant's daughter has graduated high school and is entering university, she is now free to study and work and pursue her dream. She commenced her theology course at Alphacrucis College in July 2015. 

g.    The applicant’s husband, who had been working full-time in the Gospel Piano company on a 457 Visa, let his visa expire without renewing it, as it required him to work full-time. He can now work part-time and take care of the housework and support his wife’s study.

14.  Supporting documents provided including the applicant’s current COEs, a statement confirming that she was studying at Alphacrucis College and due to complete her package of courses, which were taught in Korean, in 2019; a letter from the Minister of the church in Korea indicating that he would assist her to commence Ministry at his church on completion of her studies; and letters from church figures in Sydney indicated that the applicant had joined the Doorae Church in Australia in 2009; where she was a Deacon and had long been interested in studying theology.

15.  At the beginning of the hearing on 7 January 2016 the Tribunal discussed with the applicant the reasons her Student visa had been refused in the context of the GTE criterion, noting that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant her circumstances in Korea and Australia, her immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 12 above.

16.  The applicant said she first came to Australia in June 2008 as a dependent applicant on her husband’s TU 572 visa when he came to study Cookery, which he did not complete because the school closed down. While attending church, she got the idea that she wanted to serve people, so she decided to study hairdressing. She was granted a Student visa in 2009 and completed a Certificate III in Hairdressing as she thought she might open a hair shop, and then completed a Certificate IV in Business, as she was also interested in nursing homes. She did not study for the Certificate IV and Diploma in Hairdressing in which she was enrolled.

17.  After her husband got his 457 visa in 2011 the applicant stopped going to school as she found it difficult to study in English and decided that, instead of opening a hair shop, she wanted to do voluntary service in the church, including teaching at Sunday school and helping in the kitchen.

18.  She decided to study theology in 2014 but was unable to start this until July 2015, as she was very busy looking after the house and helping her daughter prepare for senior high school. She was now enrolled in a Certificate IV, Diploma and Bachelor courses in Ministry, all taught in Korean.  The courses would take her a total of four and half years to complete. She confirmed that she already been studying for half a year and when she completed her courses in 2019, would have been in Australia for 11 years. After that the applicant planned to return to Korea and receive pastoral training from the pastor in Korea.

19.  The applicant said she visited Korea for 6 weeks in 2013 with her daughter. During this visit she visited the church once, but did not discuss pastoral training. She discussed this with the pastor when he visited Australia in 2014, as well as her fears about studying at her age and her interest in children’s ministry. He told her that when she finished her course and came back to Korea she could work in his church.

20.  In terms of family ties, the applicant said her parents, parents-in-law, sister and brother-in-law lived in Korea. In Australia, the applicant had her husband, who was not working at present but had plans to work for Gospel Piano, the company he worked for on his 457 visa; her daughter, who had recently completed her HSC and hoped to study Visual Arts at Sydney University; and her brother and sister-in-law, who were permanent residents. Her parents had visited her in Australia for 6 months in 2014. The applicant’s husband told the Tribunal he had not returned to Korea since arriving in Australia as he had been too busy while studying and working on his 457 visa and could not afford it.  In view of the above, the Tribunal shares the Department’s view at paragraph 12.c that the applicant and her family do not have strong ties to Korea.

21.  Asked if she had explored the possibility of studying Ministry in Korea, the applicant said she thought about it, but it was too difficult for someone in their mid-40s to study with young people in their 20s in terms of ‘social atmosphere’, unlike in Australia where there was no ‘stereo-typing’. The Tribunal does not find it plausible that someone genuinely committed to ministry in the church would be concerned with such societal difficulties.

22.  As discussed with the applicant, the Tribunal is also of the view that the pattern of her applications for a Student visa each time her husband’s visa expired and her cessation of studies when he was granted a 457 visa (as apparent at paragraphs 9 and 10), as well as her failure to complete her courses of study or work while able to do so while holding a dependent 457 visa, suggests that she is using the Student visa process to maintain residence in Australia. The Tribunal is not persuaded by her various claims that the timing of her applications was coincidental, that she actually decided she wanted to study Ministry from the end of 2013 or 2014 but could not start until 2015 as she had to look after her daughter. The Tribunal notes that, by the applicant’s own words in her GTE response to the Department at paragraph 11, her plan to study Ministry was linked to the expiry of her 457 visa for some time:

… I planned to study ministry and theology after expiry of 475 visa from a few years ago.

23.  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.573.223(1)(a).

24.  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 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.

25.  As the first applicant does not meet the primary criteria and the second and third named applicants have applied solely and respectively as the spouse and dependent child of the first applicant, it follows that the second and third named applicant do not meet the secondary criteria.

DECISION

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

Mara Moustafine
Member