JO (Migration)

[2017] AATA 2398

JO (Migration) [2017] AATA 2398 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs MINKYOUNG JO
Mr JEONGKYU PARK

CASE NUMBER:  1603861

DIBP REFERENCE(S):  BCC2016/549147

MEMBER:Penelope Hunter

DATE:8 November 2017

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 572 Vocational Education and Training Sector visa:

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

Statement made on 08 November 2017 at 9:28am

CATCHWORDS
Migration – Student (Temporary)(Class TU) visa – Subclass 572 Vocational Education and Training Sector – Benefit for future career – Family and economic ties in home country – No adverse immigration record – Genuine temporary entrant

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 572.223

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 applied to the Department of Immigration for the visas on 5 February 2016.

3. 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 applicants are Mrs Minkyoung Jo (the applicant) and Mr Park, the secondary applicant. They are married. The applicant applied for the visa to undertake study in Australia including a course of General English, a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality. The secondary applicant sought the visa on the basis of being a member of the family unit of the applicant. In support of their application they submitted to the Department the following documents;

   i.Confirmation of Enrolments (CoE).

   ii.Overseas Health Cover.

   iii.Overseas qualifications

   iv.Family Relationship Certificate.

   v.Marriage Certificate.

   vi.Financial documents.

   vii.Evidence of English studies.

   viii.Statement in response to request from the delegate.

5. In her statement the applicant set out the following information;

   i.She had taken a short term English course while on her working holiday visa and realised that Australia’s education system for English was superior.

   ii.Although she has qualifications in Business Administration her dream is to study professional culinary arts. She wishes to study in Australia because Australian cuisine is rapidly going global and ranked for food and wine. She would like to learn western cooking to let people in Korea know about Australian food.

   iii.Her end goal was to start a restaurant named “Olivias Cook”, targeting the young generation.

6. The delegate decided to refuse to grant the visas on 3 March 2016. 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 was a genuine applicant for entry and stay temporarily in Australia as a student. In their decision, a copy of which was submitted to the Tribunal by the applicant, the delegate made the following findings (in summary);

   i.The information provided by the applicant was basic and the delegate was not satisfied that the applicant had provided a strong reason that her study plan would assist her to obtain employment or improve her employment prospects in the future.

   ii.The applicant had arrived in Australia on a visitor visa and her intended studies would extend her stay onshore to July 2018. The delegate could not reconcile how the applicant could initially come to Australia for a temporary stay only to lodge a visa onshore to extend her stay until 2018. The delegate was not satisfied that the applicant’s decision to apply for a student visa onshore was not pre-empted or that her intentions were to remain in Australia temporarily.

   iii.The applicant had not provided evidence of any employment ties, social ties, assets or business in South Korea which would encourage her to return at the end of her intended stay.

7. On 3 November 2017, the agent for the applicant provided a submission which contained  the following information (in summary);

   i.The applicant and secondary applicant had arrived in Australia on 19 November 2015.

   ii.Since the refusal of her visa the applicant had completed /enrolled in a General English course from 21 March 2016 to 10 June 2016, and a Certificate III in Commercial Cookery from 1 August 2016 to 28 July 2017. The applicant submitted copies of her certificates of completion, academic transcripts and letters of reference from her college. The applicant is due to complete her study in July 2018.

   iii.The applicant had chosen her courses for the quality and time not because they are short inexpensive courses. While undertaking her hospitality course the applicant has had the benefit of learning cultural diversity, which she could not experience in her home country.

   iv.The applicant plans to work as a chef/cook in South Korean. Many people in South Korea like to dine out, especially those in major cities. According to the National Statistics Office of Korea and the Korean Food Industry Association there are about 540,0000 restaurants throughout Korea. The large number signifies the importance of the food industry. Tourism is also increasing. In 2018, Pyeong Chang will host the winter Olympics in February 2018. The knowledge of hospitality and tourism is needed to attract overseas tourists.

   v.Another reason for the applicant to study in Australia is to learn cooking methods for anti-inflammatory meals, and how to prepare Halal food. She will be able to deliver this to tourists and pass on the knowledge when she works in South Korea.

   vi.Since the economic downturn in W.A, the applicant realises the difficulty found in seeking a valued job in Australia. The applicant has applied for work in South Korea when she finishes her course in July 2018. The applicant claimed that there was more work in South Korea or Singapore rather than Perth. The secondary applicant also agrees to go back to Korea. They have family and friends residing in South Korea and a significant value of insured funds to access.

   vii.The applicant has a job offer upon her return to South Korea. This offer is dependent upon the successful completion of her courses.  

8. The applicants appeared before the Tribunal on 6 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

9. The applicants were represented in relation to the review by their registered migration agent.

10. The Tribunal discussed with the applicant at the hearing her employment and study history and her reasons for undertaking her course. In addition the circumstances of the applicant in Australia and in her home country were explored together with her immigration history. The applicant gave evidence that her study had been extended by a few months are her original education provider had ceased offering her proposed course. She however had obtained a new enrolment in the same course and had continued to study since the refusal of her visa application. She had completed two of her proposed courses and planned to return to her home country at the conclusion of her courses in July 2018. She hoped to one day open a restaurant/café with her sister in South Korea who was a pastry chef. In the meantime she is looking for employment in her home country with her existing skills upon her return in order to obtain experience. The secondary applicant claimed he had not worked in Australia. They had earlier travelled together in Australia and met in 2010 when they were both in the country on working holiday visas. Neither of them had any family in Australia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

13. 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)     …

14. 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.

15. 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.

16. The reasons that follow the Tribunal has decided to remit the matter for reconsideration.

17. The evidence indicates that since the applicant’s application for a student visa she has been continuously enrolled, achieving course progress and progression. She has successfully completed her English course, a Certificate III in Commercial Cookery. The applicant continues to progress in her Certificate IV and her Diploma of Hospitality. The applicant has provided evidence of her progress and satisfactory reports from her education provider. She is due to complete all her course by July 2018. The applicant has paid fees for these courses, which according to the CoE’s she has provided come to combined sum of over $23,000.

18. It was the evidence of the applicant that she had wanted for a number of years to study cookery. However it was only when she had travelled to Australia again in 2015 and found out about the education system that she formed the intention to study in Australia. She was familiar with the Australian lifestyle and culture from her previous experience while on a tourist visa and she believed that it was an environment in which she could successfully study. The applicant has provided reasons for not undertaking her course in her home country. In particular, she applicant was attracted to the practical experience offered by the courses in Australia. In her home country the applicant worked as an agent for a forwarding company and she had hopes to one day open a café with her sister who is a pastry chef. The applicant discussed with the Tribunal the benefit to her of learning western cuisine in South Korea in circumstances where there is expanding tourist market. The applicant has explained to the satisfaction of the Tribunal the relevance of her study and its benefit for her future career. The applicant has reconciled for the Tribunal her decision to remain in Australia and study having originally arrived on a tourist visa.  It is acknowledged that her first submission to the delegate lacked extensive detail, however the applicant’s claim of wanting to eventually open her own café is consistent with her original written submissions to the delegate. The Tribunal accepts her reasons for undertaking the study as credible.

19. The applicant and the secondary applicant had indicated that after the completion of her Diploma of Hospitality it is their aim to return to their home country. The Tribunal finds the applicant’s current enrolment and future plan supportive of her claim that she sees Australia as a temporary location in which to study.

20. There is no evidence before the Tribunal that the applicant of the secondary applicant have any family in Australia. In contrast in South Korea the balance of their families reside. The applicant has also provided evidence of insurance certificates and Certificates of Rank (membership) Subscription Account from Korea Financial Telecommunications & Clearings Institute Inc. for the purposes of purchasing a first home in her own country. It is accepted that the applicant has family and economic ties to her home country. In contrast in Australia the applicant has the secondary applicant. Neither of them have worked, and they continue to be supported by their parents.

21. The Tribunal is not satisfied that there is a demonstrated economic disparity between the circumstances in Australia and in their home country. The applicant had provided evidence that she has been able to source offers of employment in anticipation of her return to South Korea. 

22. There is no adverse immigration record. There is no evidence of military service commitments or political and civil unrest in their home country which would present a significant incentive for the applicant of the secondary applicant not to return to their home country.

23. The Tribunal accepts the applicant’s reasons as to why she sees Australia as a better environment in which to improve her English and obtain well-regarded qualifications.

24. 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 does meet cl.572.223(1)(a).

25. 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.

    Secondary applicant

26. The delegate also refused visas to the secondary applicant, who is included in her application. The delegate refused the visa because it followed that the refusal of the primary applicant’s visa meant that the secondary applicant did not meet the secondary criteria.  As the Tribunal is remitting the application it is appropriate for the delegate to consider these secondary criteria on remittal.

    DECISION

27. 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 572 Vocational Education and Training Sector visa:

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

    Penelope Hunter
    Member