CHOI (Migration)

[2017] AATA 649

CHOI (Migration) [2017] AATA 649 (1 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Heayoung CHOI

CASE NUMBER:  1608851

DIBP REFERENCE(S):  BCC2016/1025862

MEMBER:Wendy Banfield

DATE:1 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 01 May 2017 at 8:16pm

CATCHWORDS

Student (Temporary) (Class TU) visa – Subclass 570 Independent ELICOS Sector – cl 570.223 – Genuine temporary stay – Successful academic career – General English course – Voluntary work with migrant women – De facto partner in Korea – Organising a conference in Korea – Son in Australia

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulation 1994, Schedule 2 cl 570.223

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 4 March 2016. The delegate decided to refuse to grant the visa on 1 June 2016. 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 grounds that the applicant did not satisfy the requirements of cl.570.223 of Schedule 2 to the Regulations because she did not demonstrate that she is genuine temporary entrant in Australia.

4. Prior to the hearing the applicant provided the following documents:

   ·     Written submission from Park & Co Lawyers dated 28 March 2017;

   ·     Evidence of the applicant’s Doctoral degrees obtained in Korea;

   ·     Certificate of Employment from Konkuk University, Seoul;

   ·     Confirmation of Enrolment – General English, Bond University;

   ·     Transcripts of study;

   ·     Letter of support from instructor Dawn Ogle-Pearce;

   ·     Letters of support from welfare organisations in Korea with whom the applicant has been associated;

   ·     Evidence of mobile phone usage;

   ·     Contract of sale for property in Korea in the applicant’s name dated 2002;

   ·     Korean vehicle registration document in the applicant’s name dated 2009;

   ·     Photo of the applicant with her de facto partner;

   ·     Signed statement of the applicant’s partner Jungtae Hwang dated 28 March 2017;

   ·     BUPA Overseas Student Health Cover Verification Letter dated 28 March 2017.

5. The applicant appeared before the Tribunal on 20 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

   The hearing

7. The applicant advised she had travelled to Australia in the past in order to visit her son who has business interests and holds a Subclass 457 visa. She has another son in Korea and provided evidence that she also has a de facto partner. The applicant declared she intends to return to Korea in October 2017 when she finishes her current English language course at Bond University.

8. According to the applicant, she had applied for a student visa prior to coming to Australia in 2016 but it was refused, so she came as a visitor. She decided to study in Australia as she was interested in English and had been doing volunteer work in Korea. The Tribunal asked why the applicant chose to study English in Australia and she said she had studied in Korea but did not see an improvement. Regarding plans to return to her own country, the applicant stated she organises an annual conference in Korea for migrant women and will be returning to do it again in November. Previously the applicant said she had done volunteer work through a British church involving migrant women.

9. The applicant has studied General English at a pre-intermediate, intermediate and now upper intermediate level. The applicant claimed she had found English very difficult and would like to study further as she did not think she would improve within the timeframe of her current course. However, she said she had to go back to Korea to prepare for a conference, and also, she has been separated from her partner for over a year.

10. The applicant said she had applied to study while she was still in Korea but the courses were cancelled. She also found that the educations provider was not of high quality and for that reason, she applied to Bond University. The applicant said she was a professor in Korea and her partner has his own business, therefore, she is able to support herself in Australia.

11. As to her reasons for wanting to study in Australia, the applicant said she had not learnt English at school and even though she had a successful academic career, she was looked down on because she did not have overseas qualifications. Also she wants to help migrant women and English is a a common language.

    Representative’s submission – Yoon Na Park

12. Ms Park submitted that the applicant is not a young student and she has had a successful academic career, however, her studies are relevant to her voluntary work. With English she can better devise programs such as conferences and invite migrant women. Ms Park said there is slow improvement in the applicant’s abilities and she persists in her studies. The applicant has a de facto partner in Korea and both her children are now grown up, with one in Australia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 570.

15. The issue in the present case is whether the applicant meets the time of decision criterion in cl.570.223. Clause 570.223(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)     …

16. 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.

17. 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.

18. The Tribunal has had regard to the evidence provided by the applicant at the hearing and the written submissions provided prior the hearing. The Tribunal takes into account the applicant is currently enrolled in a course and is studying.

19. The applicant gave evidence that in her home country, she was an academic, is now retired and had been working voluntarily with migrant women. She stated she has one adult son and a de facto partner in Korea who has a business. The applicant declared she needs to leave Australia by late 2017 to organise a conference in line with the work she was involved in. The applicant claimed the English courses she is taking will benefit her work with women where English is a common language.

20. The Tribunal is not satisfied the applicant has demonstrated how her General English courses will benefit her work in Korea when she was already fulfilling her voluntary role. On the applicant’s evidence, her progress in studying English is slow and although she says she needs to return to Korea this year,  the applicant also indicated she would like to do further courses in English. The applicant did not provide sufficient explanation as to why she has left her de facto partner and assumed the cost of studying in Australia rather than taking English courses in her own country. While it is understandably beneficial to be immersed in the language, the applicant has spent a great deal of time in Australia prior to studying which would have assisted her in practicing English.

21. Regarding her immigration history and potential circumstances in Australia, the applicant has a son here and she stated that she travelled in the past to visit him. The applicant has spent many months at a time in Australia and the presence of her son indicates a reason to remain in the country. In addition, the applicant has demonstrated that she is willing to leave her de facto partner for long periods and live independently in Australia which leads to doubts about the strength of the relationship in Korea.

22. The Tribunal notes the applicant is a well-educated person with post-graduate qualifications who has had a career, followed by engagement in voluntary work. She has undertaken only General English courses which the Tribunal finds could easily and more readily be accessed in her own country.

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.570.223(1)(a).

24. The Tribunal has found the applicant does not meet an essential requirement of cl.570.223. 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.

    Wendy Banfield
    Member