KANG (Migration)

[2017] AATA 2232

KANG (Migration) [2017] AATA 2232 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs HANBYEOL KANG
Mr HORIM RYU

CASE NUMBER:  1516225

DIBP REFERENCE(S):  BCC2015/2644266

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 9:39am

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – Strong incentive for applicants to return – Obtain experience to assist in family business – No adverse immigration record

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 10 September 2015.

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 Haubyeoi Kang (the applicant) and Mr Horim Ryu, 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.Letter of assurance.

   viii.Study plan.

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

   i.She had been in Australia for two years and her experience that led her to consider expanding the possibility for her future career in the hospitality industry.

   ii.Her parents formerly ran a restaurant in Korea when she was young, however that went under the year after it opened. She had also worked in career in her parent in-laws restaurant. While there she replies the lack of services for foreigners many of whom attended the restaurant.

   iii.The applicant had heard about the educationally advanced cooking environment in Australia from her friends. She thought this would be a good chance to expand her education and she is planning to run a fusion restaurant with her parents in law when she returns to Korea. She believes that she can gain experience in Australia through her course that would positively contribute to the family restaurant business in Korea.

6. The delegate decided to refuse to grant the visas on 11 November 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 be of benefit to her plan for starting a business of restaurant in South Korea in the future.

   ii.The applicant had not provided significant reasons for study in Australia given the significant cost and inconvenience of overseas travel.

   iii.There was an economic disparity between Australia and South Korea and the delegate was not satisfied that the applicant had significant incentive to return.

   iv.Since the applicant arrived in Australia on 30 November 2013, she had not spent any time offshore and the delegate was concerned that the applicants’ intention to remain in Australia was motivated by factors other than study.

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

   i.While remaining on a bridging visa the applicant has continued to study and not been in breach of any of her conditions. Copies of the applicant’s CoEs were submitted, letter of offer from Kingston International College, and certificates of completion and transcripts. The applicant has completed a Certificate III in Commercial Cookery issued 9 June 2017, and a Certificate IV in Commercial Cookery issued 2 October 2017, and a First Aid Certificate. The applicant continues to be enrolled in a Diploma of Hospitality which is due for completion in April 2018.

   ii.The applicant has an offer of employment from Gooreumsam Sanggogi Restaurant as a cook, when she returns to Korea.

   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. 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. The applicant claimed that there was more work in Korea or Singapore rather than Perth, due to the frequent closure of shops and strong labour union which excludes overseas workers. 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.

8. The applicants appeared before the Tribunal on 6 November 2017to 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. At the hearing the Tribunal explored with the applicant her study history and career intentions. The applicant also discussed with the Tribunal her immigration history, ties in Australia and her home country, the issues of concern for the delegate and other relevant matters. The applicant and the secondary applicant both arrived in Australia in 2013 working holiday visas. Neither the applicant of the secondary applicant have returned to their home country of South Korea since initial arrival in Australia. The applicant claimed to have formed her intention to study while travelling around Australia, experiencing the cultural environment and different cuisine. Why they had not returned to their home country they had been visited by their family members in Australia, particularly around the time of their wedding in 2016. The applicant confirmed that her job offer is with her in-laws family restaurant, is intended that she would take over the restaurant with the secondary applicant in the future upon their return to South Korea.

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 and her Certificate IV in Commercial Cookery. The applicant continues to progress in her Diploma of Hospitality, and is due to complete the course is in April 2018. The applicant has paid fees for these courses, which according to her letter of offer of enrolment come to combined sum of over $23,000.

18. The applicant satisfactorily explained to the Tribunal at the hearing her reasons for undertaking study in Australia after she had been in the country for two years on a working holiday visa. Particularly, she realised the benefit of further education to her existing position in the family restaurant in South Korea in circumstances where there is expanding tourist market. The Tribunal also accepts the evidence of the applicant that she came to understand and appreciate through her experience in Australia the practical nature of the delivery of courses in commercial cookery and that this would enable her to obtain experience in Western cuisine which she could implement in the family restaurant. The applicant has explained to the satisfaction of the Tribunal the relevance of her study and its benefit for her future career. The applicant wanting to assist in running her family restaurant business is consistent with her original written submissions to the delegate. It is acknowledge that her original submissions to the delegate lacked extensive detail, however the Tribunal accepts her reasons for undertaking the study as credible.

19. That 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. Although the Tribunal has some concerns of the applicants had not returned to their home country since her arrival in 2013, it accepts that evidence that their families have in turn visited them in Australia. The Tribunal further accepts the evidence that as they only intended to stay in Australia temporarily the applicant wished to concentrate on her studies to ensure a speedy return.

21. The Tribunal is not satisfied that there is a demonstrated economic disparity between the circumstances in Australia and in their home country. The applicants have both provided evidence of guaranteed employment and the Tribunal considers this a strong incentive for them to return to South Korea. This employment has a career path with them eventually taking over the restaurant. In contrast in Australia the secondary applicant has not found reliable employment and the applicant has only commenced work in a restaurant in the last two months.

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