JUNG (Migration)

[2018] AATA 4331

JUNG (Migration) [2018] AATA 4331 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Miyun JUNG

CASE NUMBER:  1711784

HOME AFFAIRS REFERENCE(S):           BCC2017/808152

MEMBER:M. Edgoose

DATE:17 September 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 17 September 2018 at 7:59am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – Genuine temporary entrant – Initial grant of subclass 573 visa – Only completed VET courses – Enrolment in short/inexpensive courses to maintain residency – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359(2), 360(3), 363A, 499

Migration Regulations 1994, Schedule 2, cl 500.212

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 26 May 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 delegate in this case refused to grant the visas 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 that the applicant intends genuinely to stay temporarily in Australia.

3. On 7 August 2018 the applicant was invited under s.359(2) of the Act to provide information about his proposed course of study and his entry to stay in Australia as a student. The applicant was informed that if the Tribunal did not receive the information by 21 August 2018, that the Tribunal may make a decision on the review without taking any further action to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.

6. 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?

7. 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 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.

8. 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.

9. The applicant did not provide any information to the Tribunal in regard to this matter and did not respond to the invitation to provide information under s.359(2). In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information in these circumstances as the applicant did not provide any information in response to the Tribunal’s s.359(2) letter or contact the Tribunal at any point, nor did he engage in the review process since lodging the review application.

10. The Tribunal has reviewed the decision of the delegate. This decision is not binding on the Tribunal and the Tribunal brings an independent view to the review application.

    The delegate’s decision dated 26 May 2017 (AAT FOLIO 2-6), which was supplied to the Tribunal by the applicant, stated that the applicant arrived in Australia on 26 December 2009 on a subclass 976 Electronic Travel Authority and while onshore was granted 573 student visa on 16 February 2010 which was valid until 13 September 2015 to complete a Bachelor of Business which the applicant did not complete. The applicant lodged an application on 1 March 2017 for a subclass 500 student visa and at time of application the applicant was enrolled to undertake an Advanced Diploma of Leadership and Management and a Diploma of Accounting. The Tribunal finds, the applicant has been onshore for approximately 9 years without successfully completing a qualification and that the student visa is being used primarily for maintaining ongoing residence in Australia.   

11. The Tribunal is further concerned that no Confirmation of Enrolments were submitted to the Department at time of application for the Advanced Diploma of Leadership and Management and the Diploma of Accounting courses.

12. The delegates decision stated according to PRISMS the applicant had been enrolled in the following courses

    a.English Language Course  

    b.Certificate III and IV in Business

    c.Certificate IV in Marketing

    d.Diploma and Advanced Diploma of Management

    e.Certificate II in ESL

    f.Bachelor of Business

    g.Certificate III in ESL (Further Study)

    h.English for General Purposes

    The Tribunal is concerned that no evidence was supplied to either the Department or the Tribunal by the applicant that she has actually completed or graduated in any course since being granted her initial 573 student visa on 16 February 2010. The delegate’s decision stated that “the applicant has not completed any courses above the VET sector and has maintained enrolment in short/inexpensive courses at the VET sector which indicates they are using the student visa program to maintain residency in Australia rather than due to a genuine interest in study and academic progress’. The Tribunal considers the lack of evidence by the applicant that she has actually completed any course of study since arriving in Australia on 26 December 2009 is not the behaviour of a genuine student. The applicant is continuing to maintain enrolment in courses to satisfy the granting of a student visa however the Tribunal finds the applicant is using the student visa to maintain ongoing residence in Australia.  

13. On 16 March 2017 the Department emailed the applicant inviting her to comment, within 28 days, on her circumstances in Australia in relation to the GTE criterion. The applicant responded to the invitation on 3 April 2017 and provided a statement addressing the GTE criteria and a medical certificate dated 24 June 2015. The applicant stated the following:

    a.Admitted the she has been a ‘terrible student;

    b.Failed to make academic progress and had been warned by her education provider against failing to attend classes;

    c.She had had a difficult time for the last few years although the medical certificate dated 24 June 2015 did not indicated how the applicant’s health had affected her studies.

    d.She is looking to open a restaurant in the future and that the Advanced Diploma of Leadership and Management and a Diploma of Accounting courses.

    The current courses add little value to the applicant’s future plans in opening a restaurant in her home county and it is not consistent with any of the applicant’s previous enrolments as listen in paragraph 11. The Tribunal finds that the student visa program programme is being used by the applicant to circumvent the intentions of the migration program and to maintain ongoing residence in Australia.

14. The Tribunal has had regard to the applicant’s two statements that were submitted to the Department (DIBP Folio’s 17 and 26) which were not dated. The applicant mentioned the following in her statements.

    DIBP Folio 17:

    a.Currently attending Advanced Diploma of Leadership and Management and a Diploma of Accounting at Zarah Institute of Education in Melbourne.

    b.Has a dream to open her own business and to be a good leader as a boss

    c.She is not good at math so by doing the accounting course it will help her to become better at math and this will help in business.

    d.Her mom is supporting her with her tuition and is supporting herself with a part-time job to pay living expenses.

    e.Is really enjoying her studies and promises to finish her courses.

    DIBP Folio 26

    f.The applicant stated she hasn’t completed any courses

    g.That she has had a hard time personally

    h.That she stopped studying although she applied many courses to many schools

    i.The applicant guarantees that the courses that I applied will be my last study in Australia

    j.Between 20 March 2013 and 8 December 2013 was scammed by an education agency in Sydney, did not know what was going on and then received a letter from the immigration office regarding the huge study gap.

    k.The applicant would like to a restaurant in Busan, South Korea. The applicant’s aunts will help her open the restaurant.

    l.Breakdown of her relationship with her boyfriend and that she is now content to finish her courses in Australia.

    m.The applicant admitted that she has been a terrible student but would like to become a qualified business owner in the future. 

    The Tribunal has given consideration to the information provided by the applicant in her statements to the Department. The applicant has been in Australia for approximately 9 years and had admitted to being a terrible student. The Tribunal considers that this is not the behaviour of a genuine student and that the applicant is prolonging her stay in Australia by maintaining enrolment to meet the requirements of the student visa. The Tribunal does not accept that the applicant genuinely intends to depart Australia at the completion of her current set of courses and that she will continue to enrol in further courses so that she can maintain ongoing residence in Australia.

15. The applicant did not submit a Statement of Purpose or GTE statement to the Tribunal.

16. As no evidence of completed course has been submitted to the Department or the Tribunal, the Tribunal has considered clause 14(b)(iii) of Direction 69 with respect to the applicant. The Tribunal finds that the applicant has been onshore for some time without successfully completing a qualification and that the student visa may be used primarily for maintaining ongoing residence in Australia.   

17. There is no relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: whether the applicant has reasonable reasons for not undertaking the study in their home country, the extent of the applicant’s personal ties to their home country, any potential military service in the home country, political circumstances in the home country, civil unrest in the home country, remuneration the applicant could expect to receive in the home country compared with Australia, the applicant’s ties with Australia which would present as a strong incentive to remain in Australia, and whether the applicant is seeking to undertake a course of consistent with their current level of education, circumstances in the home country relative to Australia or any other country and the applicant’s circumstances in the home country relative to others in that country.

18. 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).

19. 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.

20. 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

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

    M. Edgoose
    Member