1518105 (Migration)

[2016] AATA 4625

1518105 (Migration) [2016] AATA 4625 (31 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jongdeok KWON
Mrs Seunghyeon SONG

CASE NUMBER:  1518105

DIBP REFERENCE(S):  BCC2015/2162393

MEMBER:R. C. Titterton

DATE:31 October 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that:

·the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa: cl.573.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 31 October 2016 at 3:30pm

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 are Mr Jongdeok KWON (the first applicant) and his wife Mrs Seunghyeon SONG (the second applicant). They are citizens of South Korea.

3. The applicants applied to the Department of Immigration for the visas on 28 July 2015. The delegate decided to refuse to grant the visas on 10 December 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).

4. The delegate refused to grant the visas because the first applicant did not satisfy the requirements of cl. 573.223 of Schedule 2 to the Regulations. Having considered Ministerial Direction No. 53, the delegate was not satisfied that the first applicant was a genuine applicant for entry and stay as a student because he was not satisfied that the first applicant intended to remain in Australia temporarily temporarily having regard to his circumstances and immigration history and other relevant matters.

5. The applicants appeared before the Tribunal on 13 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Soo Ja Lee, a minister of a Presbyterian Church in Sydney.

6. 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, Mr Michael Heo.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

EVIDENCE

1. At the hearing, the Tribunal received from the applicants a bundle of documents. Relevantly these included:

   ·a certificate certifying that the first applicant had fulfilled the requirements for a Certificate IV in Ministry (leadership) on 6 July 2016;

   ·a record of the first applicant’s results for the subjects he studied in that course. The first applicant received an outcome of “competent” in the 10 units completed;

   ·a letter from the Alphacrusis College dated 28 September 2016 indicating that, in addition to the Certificate IV in Ministry (Leadership), the first applicant was also enrolled in a Diploma of Ministry (Pastoral), which course was to start on 25 July 2016 and finish on 9 June 2017, and an Advanced Diploma of Ministry, which course was to commence on 31 July 2017 and end on 15 June 2018; and a Bachelor of Theology, which course was due to start on 6 August 2018 and finish on 22 November 2019;

   ·A record of his results for the Diploma of Ministry. The outcome recorded for five subjects is “in progress”;

   ·a letter from Major Hwanki Kim dated 26 September 2016 . Major Kim is a major in the Salvation Army, Australia Eastern territory, a Chaplain of a Detention Centre and a lecturer at Alphacrusis College. Major Kim provides a positive character reference for the first applicant;

   ·a letter of Mr Ung Hun Choi dated 23 September 2016. Mr Choi is director of Vocational Education and Training in the Korean Department of Alphacrusis College. He too provides a positive character reference for the first applicant. A bundle of financial information;

   ·a bundle of documents dealing with the first applicant’s financial situation. These documents showed that the first applicant own property in South Korea to the value of approximately AUS $425,000;that the second applicant had a private pension with one of the major insurance companies in South Korea, equivalent to approximately AUS $660 per month; and that the first applicant also had a private pension equivalent to approximately AUS $440 per month.

2. The first applicant gave oral evidence to the Tribunal

3. He was born on 11 January 1954. He is 62 years old. He was born in South Korea. He completed High School, aged about 19. The first applicant would have liked to have studied civil engineering at university, but his family was not able to afford this. Now that he has retired, and has the opportunity and the money to do so, he wishes to become a Presbyterian minister. He has been a Christian for about 15 years. He did not grow up in a Christian family.

4. After completing military service, he undertook various jobs. From about the age of 30, he worked for a furniture manufacturing business. He remained in that role until he retired aged 61.

5. He was married in 1983 or 1984. The applicants have two children, a son and a daughter. The daughter, her husband and their young child live in Australia. The son also lives in Australia, having been granted a 457 Visa. He is a pastry cook.

6. The applicant’s father has died, but his mother is still alive and lives in South Korea, as does his four siblings. All of his wife’s family live in South Korea

7. The Tribunal discussed with the applicant his conversion to Christianity. The Tribunal was told that he converted to Christianity in his late 40s. He said that his friends recommended that this are going to church, and his wife told the Tribunal that she tried to get her husband to convert. When he retired from his job he decided that he wanted to study Ministry, and become a minister. The Tribunal asked him why he wanted to do this. He said he wanted to start a second life.  He said he wants to be a minister in the Presbyterian Church, and to be an evangelist. The Tribunal asked the applicant what he needed to do to become a minister in the Presbyterian Church. He said he needed a diploma and then a bachelor degree. The Tribunal asked him whether or not the church had its own requirements before a person could be licensed as a minister. The applicant did not appear to be sure whether the Church did have requirements and if so, what they were. The Tribunal asked him whether he needed to apply for such a license. He said there was no need to apply. He said he was aware that the church did trainers ministers and often excel exercises or training exams for those who wanted to be Minister.

8. The Tribunal asked the applicant, assuming he became a Church Minister, what his aim or objective would be? The applicant explained that when he worked in furniture he worked with people from Indonesia and Nepal, and that he was the one that used to preach to them. He said he would like to work with foreigners in his ministry. The Tribunal asked him what he would do if he did became a Minister. He said that he would return to South Korea and exercise his Ministry there.

9. The Tribunal asked him why he was studying Ministry in Australia. He said that in South Korea it was very hard to find places if you were aged over 60. He said it was easier in Australia. The Tribunal discussed this matter with the applicants’ agent, suggesting that there would be many places at which Koreans could study theology and related disciplines. The Tribunal invited the agent to send in some country information about this issue.

10. The Tribunal suggested to the applicant that his trip to Australia coincided with the marriage of his daughter and the birth of his grandchild. When asked, the applicant denied that this was the real reason he came to Australia. He stated that the real reason he came to Australia was to study ministry, and then return to South Korea to preach. The Tribunal explained the one of the matters it had to take into account were the first applicant’s ties to Australia, on the one hand, and his ties to South Korea, on the other. The Tribunal suggested that the presence of his two children and grandchild in Australia may constitute very important time for him and his wife. Nevertheless, the Tribunal noted that the first applicant said that his mother, and four siblings were still living in South Korea, and all of the second applicant’s family were also in South Korea.

11. The applicant’s wife was also present at the hearing. She said that she was delighted with her husband’s plans, even at this stage of his life, and said that he would definitely return to South Korea.

12. The applicant and his wife gave details about the church attendances in Sydney at Grace Hill. The Tribunal notes the hearing was attended by Ms Soo Ja Lee, a minister of a Presbyterian Church in Sydney. She gave brief evidence to the Tribunal. She said that she had known the first applicant since July 2015, when he first started attending her church. She said that the first applicant attended regularly, and that she saw him at Bible studies classes. She also said that the first applicant had told her that he wished to return to South Korea to follow Ministry.

13. At the conclusion of the hearing, Mr Heo submitted that in the industry in which the first applicant worked in South Korea, there are lots of foreigners. He said that the first applicant wished to return to South Korea to help them return to South Korea to help them.

CONSIDERATION

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

2. 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)…

3. 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;

   ·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.

4. 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.

5. The Tribunal explained that its particular concern was that the first applicant’s courses of study coincided with the relocation of both of his children to Australia and the birth of his grandchild. The Tribunal indicated that some might think that this was an elaborate way of the applicants ensuring that they remained in Australia to be with the family for an extended period. Mr Heo said that they could have come to Australia on other visas, and would not have had to incur the expense of the first applicant studying (in which respect the Tribunal notes that over $3,000 in course fees had been paid by the first applicant), and would not have had the inconvenience of attending those courses. Mr Heo that these matters constituted a heavy commitment for the first applicant.

6. This decision primarily stands or falls on the credit of the first applicant. While he gave his evidence in a hesitant manner, the Tribunal puts this down to nervousness, and perhaps anxiousness about the result, and observes that the first applicant was not very fluent in English. The Tribunal was satisfied he gave consistent evidence with his documents. He gave relatively spontaneous answers, and the Tribunal considered that he was a witness of truth. The Tribunal accepts the submissions of his agent that were are other less intrusive and less expensive ways by which the first applicant could have remained in Australia to visit his family without the inconvenience of the various courses he proposes to undertake and the expense involved.

7. On the basis of the above, and having considered the applicant’s circumstances, and noting his continuing ties to South Korea including the presence there of the first applicant’s elderly mother and his four siblings, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the first applicant does meet cl.573.223(1)(a).

8. As the Tribunal has found the first applicant meets the requirement of cl.573.223(1)(a), it will remit the matter to the delegate for reconsideration.

DECISION

1. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that:

   ·the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa: cl.573.223(1)(a) of Schedule 2 to the Regulations.

R. C. Titterton
Member