Choi (Migration)

[2019] AATA 4439

Choi (Migration) [2019] AATA 4439 (8 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sunmi Choi

CASE NUMBER:  1728502

HOME AFFAIRS REFERENCE(S):           BCC2017/3060139

MEMBER:Stephen Conwell

DATE:8 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 October 2019 at 1:38pm

CATCHWORDS

MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) – no response to Tribunal communication – genuine intention to stay in Australia temporarily – studies have been limited to the vocational sector – no evidence to suggest that she has utilised the qualifications obtained  – provided generic and unsubstantiated information how her current studies would benefit her career intentions – lack of continuity and lack of academic progression – remained onshore for the overwhelming bulk of time since arrival – motivation for study is to maintain residence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, 500.212(a)

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 and Border Protection on 1 November 2017 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 for the visa on 24 August 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intended genuinely to stay temporarily in Australia.

4. The applicant sought review of the delegate’s decision at the Tribunal and attached a copy of the delegate’s decision with her application.

5. By letter dated 30 April 2019, the Tribunal wrote to the applicant inviting her to attend a hearing on 21 May 2019. The applicant did not attend the scheduled hearing. After her application was dismissed, she submitted two medical certificates as a reason for her non-appearance.  On 5 June 2019 the Tribunal agreed to reinstate the application for review.

6. By letter dated 18 September 2019, the Tribunal wrote to the applicant inviting her to attend another hearing on 8 October 2019. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her application without further notice.

7. With respect to the rescheduled hearing on 8 October 2019, the Tribunal sent the applicant telephone SMS Reminders about the hearing five business days and one business day before the scheduled hearing.  No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the hearing day and at the scheduled time and place.

8. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been ‘returned to sender’, and that separate SMS reminders were also sent to the review applicant about the hearing. In the circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to determine the review without taking any further action to enable the applicant to appear before it.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

    Genuine applicant for entry and stay as a student (cl.500.212)

11. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

12. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, 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.

13. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

14. The Tribunal notes from the primary decision record and from other evidence on file that the applicant arrived in Australia on 16 Apr 2011 on a Working Holiday (TZ 417) visa; she was granted a further Working Holiday (TZ 417) visa valid until 4 March 2013.  She was then granted two student visas subclass TU 572 and completed ESL, frontline management and business course in the VET vocational sector. Now the applicant has applied for this student visa on 24 August 2017 to study an Advanced Diploma of Marketing and Communication.  The Tribunal note however that her evidence submitted to the Tribunal indicates that her current enrolment (according to her COE) is in the Diploma of Marketing and Communication, not in the Advanced Diploma.

15. The applicant provided a written response to a s.359(2) request for student visa information. It outlined the following:

    ·The applicant first arrived in Australia on 16 April 2011. 

    ·The applicant claims to have returned to her home country since arriving in Australia but gives no details of such return visits. The Tribunal notes that the delegate had observed that the applicant had not returned to her home country for approximately  six years from the time of her arrival in Australia to the time of the delegate’s decision on 1 November 2017;

    ·The applicant had completed high school in her home country before coming to Australia on a Working Holiday;

    ·The applicant is enrolled in a Diploma of Leadership and Management for the period April 2019 to April 2020;

    ·The applicant provided a statement as part of her s.359(2) response that there are no similar courses in Korea and by completing this course in English she will gain a competitive advantage “to lead in business”. She wishes to excel in future and want(s) to be a leader which qualifies and makes her more informative in things”;

    ·Her annual living expenses in Australia are approximately $24,000 AUD;  She gave no evidence of currently working in Australia;

    ·Her family lives in Korea and she has no family here;

    ·She is close to her family in Korea and maintains contact through social media;

    ·She comes from a well off economic background. She claims to own a house valued at AUD500,000 in Korea, but offers no supporting evidence of this;

    ·She believes completion of her Diploma will make her professionally competent to apply for jobs in Korea;

    ·She intends to return to Korea as ‘her family needs me’.

16. Although not set out in her 359(2) response, the delegate’s decision notes that the applicant had previously completed studies in ESL as well as a Diploma of Business

17. The Tribunal has taken into consideration the value of the course to the applicant’s future. To do so the Tribunal gives weight to the GTE statement provided to the Department with her application plus the statement incorporated in the s.359(2) written response. The applicant stated that she wished to study the proposed course to improve her skills and knowledge on leadership so that she can seek work in Korea, qualified in Leadership and Management. There can be little weight held to this statement as the applicant provided limited evidence on how these courses will specifically assist her in pursuing a career in business or management.

18. The Tribunal considers that the applicant only provided generic and unsubstantiated information with regards to how her current studies in Australia would directly benefit her future career intentions in Korea.

19. The Tribunal has given further regard to the value of the course to the applicant’s future, and notes that the applicant completed a high school before travelling to Australia. She has been in Australia for over eight years, having held two Working Holiday visas and two Student visas. She has not provided any evidence to suggest that she has utilised the qualifications already obtained in Australia. Now in this application the applicant is applying to study a Diploma of Leadership and Management. During her eight years onshore the applicant’s studies have been limited to the vocational sector. The lack of continuity and lack of academic progression suggests that her motivation for study is to maintain residence in Australia.

20. The Tribunal has also considered the applicant’s immigration history. The Tribunal notes that since first arrival in Australia on 16 April 2011 she has remained onshore for the overwhelming bulk of time; up to the time of the delegate’s decision she had been onshore for over six years. 

21. The applicant previously held four substantive visas in Australia, being two Working Holiday visas and two student visas.

22. Therefore, in considering previous study and immigration history the Tribunal is not satisfied that the applicant genuinely seeks to pursue the nominated courses for the reasons declared and finds that the applicant is more likely seeking to maintain residency in Australia.

23. The Tribunal has taken into account economic circumstances in the home country relative to potential economic circumstances in Australia. The Tribunal notes that the applicant   declared her family members are in Korea and indicative of her strong ties to her home country. Similarly she mentions home ownership however there is no evidence before the Tribunal of such home ownership in the applicant’s name; the Tribunal finds in the absence of such evidence that the property is more likely to be the applicant’s family home. Consequently the Tribunal finds that these ties do not, of themselves, constitute a strong incentive for the applicant to wish to return home. Given that the applicant has spent minimal periods outside Australia since 2011 contributes to this concern.

24. Furthermore, given her personal circumstances and the comparatively greater economic opportunities in Australia the Tribunal cannot be satisfied that the applicant intends a genuine temporary stay in Australia.

25. The Tribunal has considered whether any other matter is relevant to the assessment of genuine intentions to temporarily stay in Australia and find that no other matter is relevant to assessment of the applicant’s intentions to stay in Australia temporarily.

26. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

27. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

28. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Stephen Conwell
    Member

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton
    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.