1511275 (Migration)

[2016] AATA 3761

1511275 (Migration) [2016] AATA 3761 (26 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Yijeoung Kwon

CASE NUMBER:  1511275

DIBP REFERENCE(S):  BCC2015/1060265

MEMBER:Lesley Hunt

DATE:26 April 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

·     cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 26 April 2016 at 3:44pm

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 8 April 2015. The delegate decided to refuse to grant the visa on 29 July 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 because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant is a genuine temporary entrant in Australia.

4. The applicant appeared before the Tribunal on 21 April 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 matter should be remitted for reconsideration. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. 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)     …

8. 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.

9. 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.

10. With regard to the factors to be considered under Direction No.53 the Tribunal notes and finds the following.

    The review applicant’s circumstances in her home country

11. The applicant states that her partner, one of her daughters, her elderly parents, and younger brother live in Korea and this provides strong incentive for her to return there.  She states that her partner is a self-employed businessman and his business consists of delivering pork to schools and other places.  She states the business is assisted through government quotes and is doing well financially. 

12. The applicant states that she owns an apartment and some land in Korea. 

13. The applicant confirmed that she came to Australia in August 2008 on a student guardian visa to look after her younger daughter who was a student in Australia.  The Tribunal put to the applicant that since August 2008 she returned to Korea two months in 2008 and again for one month in 2011.  She was then granted an offshore student visa subclass 572 in January 2012 and while holding that visa she returned to Korea for three weeks in 2012; one month in 2014; and 3.5 weeks in 2015.  The Tribunal put to the applicant that this does not indicate a strong motivation on her part to return to Korea and could indicate that her relationship with her partner, parents and other daughter is not a strong incentive for her to return to Korea at the end of her course.  She responded that her partner comes to visit her every year for around two weeks and her parents also visit her in Australia once a year.  She states that she and her partner see each other every six months.

14. The applicant stated that she is the eldest daughter and it is her responsibility to care for her parents as they age.  She clarified that her parents are in good health and able to look after themselves and live independently at the moment.  However she intends to return to Korea so that she can care for them.

15. The applicant stated that she wants to complete her studies in business and management and will return to Korea and start her own business in real estate.  There is an area where she lives which has a large population of foreigners and therefore having English language will be an advantage to her business.  Also she intends to set up a play centre or kindergarten for children in Korea. 

    The applicant’s potential circumstances in Australia

16. The applicant claims that she does not work in Australia.  She states that she worked once in 2013 helping a friend who had a cleaning business.  She did this work for about six months.  The applicant states that her youngest daughter lives and works in Australia.  She is being sponsored by her employer and hopes to obtain permanent residence.  Her other daughter lives and works in Seoul, Korea.  The applicant states that she has no other ties in Australia.

    The value of the course to the applicant’s future

17. The applicant states that she wants to complete her business and management courses in Australia and then return to establish a business of her own in Korea.  She states that initially she found it difficult to learn English.  However she wants to learn English because it is a very important language in Korea, particularly for business.  She clarified that she chose not to study business and management in Korea because it is difficult for a mature age student in Korea – there are not many educational opportunities for the older person in Korea.  She stated that her children are grown up and are young adults now and so it is an opportunity for her to study.  She clarified that her partner and her children have helped her pay her course fees and helped support her through her studies in Australia.

18. The applicant stated that she wants to be able to show her educational achievements to her partner, parents, children and others, and she wants to return to Korea and be a successful business woman. She does not want to give up on her dreams.

    The applicant’s immigration history

19. As discussed with the applicant at the hearing, she first arrived in Australia in June 2008 on an electronic travel authority.  In August 2008 she was granted a student guardian visa and in January 2012 she was granted a subclass 572 student visa.  The latter visa ceased on 13 April 2015 and prior to that on 8 April 2015 she applied for another subclass 572 student visa, the subject of this review application. Since first arriving in Australia as the holder of a subclass 572 student visa in January 2012 until the date of this decision, the applicant has returned to Korea for just under three months in total.  In the Tribunal’s view, three months in four years and three months is not a long period of time and could be interpreted as a lack of motivation to return to Korea. 

20. In the four years the applicant has lived in Australia she has completed the following courses: Certificate III in spoken and written English from 2 May 2012 to 30 September 2012; a Certificate II in Business from 6 November 2012 to 16 June 2013; a Certificate II in spoken and written English from 22 July 2013 to 17 January 2014; a Certificate II in English proficiency from 31 March 2014 to 12 September 2014; a Certificate III in English proficiency from 27 October 2014 to 17 April 2015;  a Certificate II in Business from 1 June 2015 to 30 October 2015. 

21. The applicant commenced a Certificate III in Business in 7 December 2015 and is scheduled to complete the course on 9 December 2016. 

22. The applicant has indicated her intention to study a Certificate IV in Business from 6 March 2017 to 5 November 2017 followed by a Diploma of Management from 29 January 2018 to 9 September 2018. Information on the Provider Registration and International Student Management System (PRISMS) indicates the applicant is approved to study these two courses in 2017 and 2018.

23. At the hearing the applicant stated that she has enjoyed all the courses she has completed and she is progressing well in the current course.  She submitted a reference from the education provider which states that her attendance is 100% and she is doing well in the course. 

24. The Tribunal put to the applicant that if she continues on with her studies in Australia until finishing the Diploma of Management in September 2018 she will have been in Australia for more than six years on student visas studying at the vocational education and training level and this is a long time for the study of courses at that level.  The Tribunal put to the applicant that it could be interpreted that she is using the student visa program to maintain residence in Australia rather than to achieve a specific academic goal and then return to her home country. 

25. The applicant responded that when she was in Australia on the student guardian visa she discussed with her daughter the subjects that her daughter was studying in her International Business and Marketing course. She found the subjects interesting and wanted to study in her own right.  She was not able to start studying until her children had grown up.  She did not progress very well initially because of her lack of English language skills.  She had to devote a lot of time to studying English before she was able to undertake courses in Business and Management. 

26. The Tribunal asked the applicant why she did not study in Korea, rather than Australia, if English language was a problem for her.  She responded that English is an important skill to have to do business in Korea and also Korea did not have many opportunities for the mature age student.  However in Australia it is much easier to be accepted into courses as a mature age student. 

27. The Tribunal asked the applicant what her goal or plan is in relation to the courses of study undertaken in Australia.  She stated again that she wants to start her own business in real estate and another one in child care.  She wants to be able to return to Korea to care for her parents and she wants to work to be able to repay her partner and daughter as they have financed her studies in Australia. 

28. The Tribunal put to the applicant that if she studies through until September 2018 it will be ten years of living in Australia and nearly seven years of studying in Australia.  This is a long time to have taken to obtain a Certificate IV in Business and a Diploma of Management.  It is a long time to live apart from her partner and her elderly parents.  The applicant repeated her previous advice to the Tribunal that she sees her partner every six months and her parents visit her each year.  The applicant stated that she does not look at the length of time, she looks at her achievements.  She wants to be able to show her achievements to others.  Again she emphasised that she does not want to give up on her dreams.

29. There is no evidence before the Tribunal to indicate that the applicant has not complied with conditions on the visas she has held. 

    Any other relevant matter

30. The Tribunal found the applicant to be a credible witness.  The Tribunal accepts that she found it difficult to study initially because of a lack of English language skills and that as a mature age person it was difficult to obtain the level of English language required for studying business and management courses at the vocational education and training level.  The Tribunal notes the reference from the education provider which indicates that the applicant is a committed student, with a high attendance rate and is currently progressing well in her current course.  As stated above, there is no evidence to indicate that the applicant has not complied with conditions on the visas she has previously held in Australia. The Tribunal accepts the applicant’s evidence that it is difficult to study in Korea as a mature age student and accepts further that she has a concrete plan to establish businesses in her own right in Korea when she completes her studies.  Whilst it is evident that the applicant spends a long time apart from her partner and other family members, the Tribunal accepts nonetheless that her family and plans for her businesses are strong incentive for her return to Korea and notes that, other than one daughter in Australia, she has no other family members or interests in Australia.

    Conclusion

31. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets  cl.572.223(1)(a).

32. As the Tribunal has found the applicant meets the requirement of cl.572.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

33. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

    ·     cl.572.223(1)(a) of Schedule 2 to the Regulations.

    Lesley Hunt
    Member