1514650 (Migration)

[2016] AATA 3640

1514650 (Migration) [2016] AATA 3640 (4 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BYEONGSOO NOH

CASE NUMBER:  1514650

DIBP REFERENCE(S):  BCC2015/1507739

MEMBER:Ruth Cheetham

DATE:4 April 2016

PLACE OF DECISION:  Sydney

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 04 April 2016 at 3:33pm

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 25 May 2015. The delegate decided to refuse to grant the visa on 14 October 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). Relevantly, the subclass that can be granted depends upon the type of course in which the applicant is enrolled as his or her principal course (Subclass 570 – 575). In this matter, the relevant subclass is 572 (Vocational Education and Training Sector). The delegate refused to grant the visa 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 is a genuine applicant for entry and stay as a student.

3. The applicant was represented in relation to the review. Materials provided by the applicant’s migration agent prior to the proposed hearing were sufficient for the Tribunal to make a favourable decision and for this reason the matter has not proceeded to a hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Cl.572.223(1)(a): The “genuine temporary entrant criterion”

4. 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)     …

5. 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.

6. 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 an applicant’s circumstances as a whole in making a finding about whether the applicant satisfies the genuine temporary entrant criterion.

   Applicant’s circumstances

7. The applicant has provided a written statement to the Tribunal, together with a copy of his current Confirmation of Enrolment, a statement from his current employer, and a copy of the delegate’s decision record.

8. The applicant is a national of Korea and has been in Australia on sequential student visas since January 2010. The applicant’s intention, described in written submissions both to the Department and to the Tribunal, is to establish a coffee shop franchise in Korea when he returns. He has a Bachelor degree in Hospitality from his university in Korea and has worked in that sector in both Korea and China

9. According to the material provided to the Tribunal by his migration agent, the applicant is enrolled in a Diploma of Accounting commencing on 2 May 2016 and ending on 30 April 2017. He has recently completed a Certificate IV in Accounting, and is presently awaiting receipt of the certificate from his educational institution.

10. The applicant has previously been enrolled in a number of courses in the Hospitality, Business Management and Business Administration streams. He has completed General English, a Certificate IV in Business Administration, a Diploma and an Advanced Diploma of Management and, as noted above, a Certificate IV in Accounting. He did not complete enrolments in a Diploma of Hospitality and a Bachelor of Business (Hospitality and Tourism).

11. The delegate concluded that the applicant’s enrolment in the accounting courses were unrelated to his previous studies in business administration and management, and that there was insufficient evidence to show how the accounting courses were relevant to the applicant’s proposed future employment and business plans. The delegate concluded, having regard to the applicant’s overall lack of academic progress, his study history, his circumstances in Australia and immigration history, and the lack of value of the accounting courses to his future, that the applicant was not genuinely intending a temporary stay in Australia as a student.

12. Since that decision, the applicant has completed the Certificate IV in Accounting. He has obtained employment with a coffee shop in Australia. His current employer has provided to the Tribunal a statement that she intends to enter into a business arrangement with the applicant to open a coffee shop and establish a franchise in Korea once he has finished his accountancy studies, and that she advised him to undertake studies in accounting to give him the skills she, as an accounting graduate, has found essential in her business. She owns two coffee shops and has been in that sector of the hospitality industry in Australia for over 20 years. She has also indicated to the Tribunal that she is willing to attend a hearing and give evidence in support of the applicant.

13. The applicant states that his brother has visited Australia and is now successfully working as a business consultant for franchises in Korea and will be a great support when the applicant launches his café business in Korea on his return.

14. The applicant states that the reasons why he did not complete his Bachelor of Business is because he realised that at that time (in 2011) his English skills were not good enough and he wanted to opt for studies which would be less demanding of English language skills. He also had difficulties in several of his previous enrolments when his education provider closed and two student agencies with which he was dealing also closed.

    FINDINGS AND REASONS

15. The Tribunal has the benefit of information which was not available to the delegate and has, for this reason, come to a different view as to the applicant’s intentions.

16. The Tribunal accepts that the applicant intends to establish a coffee shop business in Korea, and to franchise that business. The applicant has now been able to demonstrate: successful completion of accountancy studies; employment in a directly relevant business; the advice of an experienced owner/operator in that sector of the hospitality industry who is herself qualified in accountancy and considers those skills to be essential to her business success; a potential business partner willing to join the applicant in establishing a coffee shop franchise in Korea and for the applicant to operate it there; and a brother with experience and connections in a relevant business area.

17. The Tribunal gives significant weight to the applicant’s continuing involvement in the particular sector of the hospitality industry in which he intends to establish a business, and that he has shifted from business administration courses to accountancy courses on the advice of a successful business owner in precisely that sector, who also has expressed her willingness to enter into a business partnership with the applicant upon completion of his studies and his return to Korea. The Tribunal also gives significant weight to the applicant’s successful completion of a Certificate IV in Accountancy. The Tribunal gives weight on the fact that the applicant’s brother is a consultant for franchising and that he is resident in Korea.

18. 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).

19. 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

20. 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.

    Ruth Cheetham
    Member