1509348 (Migration)

[2016] AATA 3089

1509348 (Migration) [2016] AATA 3089 (13 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JAE SANG LEE

CASE NUMBER:  1509348

DIBP REFERENCE(S):  BCC2015/1022318

MEMBER:Mara Moustafine

DATE:13 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 13 January 2016 at 11:48am

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

2. The applicant applied to the Department of Immigration for the visa on 2 April 2015. The delegate decided to refuse to grant the visa on 24 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 visa on the basis that the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because she was not satisfied that the applicant was a genuine applicant for entry and stay as a student and that he intended to stay in Australia temporarily.

4. The applicant 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 applicant was represented in relation to the review by his 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 572.

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 he first arrived in Australia on 26 June 2010 on a TU subclass 572 Student visa, which was valid until 15 March 2013. He was subsequently granted a further Student visa until 5 April 2015.

10. On 2 April 2015 the applicant applied for a TU subclass 572 Student visa to undertake a Certificate IV in Information Technology (IT) Networking, a diploma of IT and a Bachelor of Business Information Systems.

11. On 8 April 2015, the Department wrote to the applicant inviting him to comment on his circumstances in relation to the genuine temporary entrant (GTE) criterion, including his previous pattern of study in Australia and why he chose to enrol in his intended courses; how intended courses of study related to his previous studies in the Business field; why he had only completed an English, Business and Customer Contact course while in Australia on a Student visa; and why he had not progressed to a course beyond the vocational level during his stay of 4 years and 9 months in Australia.

12. In his response of 6 May 2015, the applicant stated that he came to Australia to study in an English speaking country. He had studied business courses in order to get a managerial role in a company upon his return to Korea. He undertook extra English courses, as he found his ‘lack of English skills was an obstacle to keep up with his studies’. He wanted to obtain a Bachelor's degree and was studying his current course as he felt that a combination of a Diploma and a Bachelor's degree would assist him in getting a good job in Korea.

13. In her decision of 24 June 2015, the delegate highlighted a number of concerns, including that:

    a.During his time in Australia as a Student visa holder, the applicant had been enrolled in a large number of different courses, but had only completed General English (Beginner to Advanced); Certificates II and III in Business; Cambridge English Language Course; and Certificate II in Customer Contact; and most of his courses were cancelled by the education provider due to non-commencement or cessation of studies. She did not consider this to be a reasonable completion level for a student whose primary purpose for being in Australia is to study and progress academically.

    b.In the time he held a Student visa, he had not completed any courses above the Certificate III level, had changed courses several times and had maintained enrolment in short/inexpensive courses at the Vocational level.

    c.He applied for his Student visa on 02 April 2015 and applied for his enrolment in course a few days earlier on 31 March 2015.

    d.His current enrolment in IT was unrelated to his previous studies in Business and Customer Contact. It therefore appeared that he had recommenced studying for the purposes of the visa application only in order to secure a student visa rather than due to a genuine interest in this area of study and overall academic progress.

    e.He had not provided any substantial reasons as to why he chose to study these courses, giving weight to the lack of apparent value of the courses to his future. This indicated that he did not genuinely intend to stay in Australia temporarily and was using the student visa program as a means of maintaining residence in Australia.

14. The delegate concluded that overall, given his lack of academic progress, his study history, his potential circumstances in Australia, his immigration history and the lack of value of the courses to his future, the applicant was using the Student visa program to circumvent permanent migration programs. She was not satisfied that he was a genuine applicant for entry and stay as a student and that he intended to stay in Australia temporarily.

15. At the beginning of the hearing on 7 January 2016 the Tribunal discussed with the applicant the reasons his Student visa had been refused in the context of the Genuine Temporary Entrant 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 his circumstances in Korea and Australia, his immigration and study history and other relevant matters, including the delegate’s concerns at paragraphs 13 and 14 above.

16. The applicant confirmed that since arriving in Australia, he had studied various courses but had not completed any, apart from English. He said that, while he attended classes, his English was not good enough so he was unable to complete assignments or be awarded certificates of completion.

17. The applicant said he had been studying ‘IT Business Marketing’ at AICL until the end of December 2015, but the school was closed down and he was now looking for a replacement institution. He thought his migration agent had provided relevant documents, including COEs to the Tribunal, though he could not identify in which course he was now enrolled.

18. The Tribunal told the applicant that it had not received any such documentation from his agent, noting that a key requirement for a Student visa was for an applicant to be studying or have a current offer of enrolment from a registered institution. The applicant was given until the following day to provide evidence that he was enrolled. On 8 January 2016, the applicant’s agent provided COEs created on the afternoon of 7 January 2016 for a Diploma of Business (8/02/2016 to 5/02/2017) and Bachelor of Business Information Systems (31/07/2017 to 28/07/2020); as well as a reference letter from AICL regarding the closure of the college.

19. In discussion about the delegate’s concerns outlined at paragraph 13 above, the applicant said everyone should be free to choose what they studied. In Korea he majored in study of Visual Design, then worked for ten years in TV and Internet advertising and had his own business. Asked if he explored the possibility of studying in Korea before he came to Australia, the applicant said that, at that time he could not think of studying as he worked very hard for ten years and was exhausted. After closing his business, he came to Australia in 2010 to ‘refresh’ himself and to study. He could not do this in Korea for personal and social reasons. Apart from studying in Australia, he had been working part time (1-2 days per week) as a cleaner and a waiter, when there was demand.

20. In a discussion of his career plans, the applicant said that initially he wanted to study Business Marketing at university but in consideration of his age, he now planned to stay in Australia for 2-3 more years, then return to Korea to develop his business in Internet advertising and online sales. Although he is over 40, he still wants to study and complete his courses before returning to Korea. It would ‘break his heart’ if he is not permitted to complete his studies. His father is still studying and learning, in spite of his age.

21. As discussed with the applicant, given his consistent evidence to the Department and Tribunal that he has been unable to complete any substantive courses in Australia over the past five years because of his lack of English skills, the Tribunal is not satisfied that his continued enrolment in IT and business related courses serve the purpose of advancing his career. The Tribunal has noted the applicant’s comments that he could not find time in Korea to study English because of work responsibilities; as well as his desire to learn English in an English speaking country. However, by his own evidence, his English language studies in Australia have not enabled him to advance academically over the past five years.

22. The Tribunal shares the Delegate’s concern that the applicant’s poor record of course completion is not reasonable for a student whose primary purpose for being in Australia is to study and progress academically. It also finds that the applicant’s apparent lack of awareness of the courses he is/will be studying suggests that he may be enrolled in them for the purposes of maintaining his visa, rather than genuine academic interest.

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.

    DECISION

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

    Mara Moustafine
    Member