Kang (Migration)

[2023] AATA 1215

Kang (Migration) [2023] AATA 1215 (1 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Dahyun Kang

REPRESENTATIVE:  Mr Hwa Jong Yoon (MARN: 0741968)

CASE NUMBER:  2206318

HOME AFFAIRS REFERENCE(S):          BCC2022/320568

MEMBER:Wendy Banfield

DATE:1 May 2023

PLACE OF DECISION:  Canberra

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

Statement made on 01 May 2023 at 5:44pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – member of the family unit – lengthy stay in Australia – family members in home country – period of unlawful residence – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 65, 499; Direction No 69
Migration Regulations 1994, Schedule 2, cls 500.212, 500.312

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 Home Affairs on 11 April 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 February 2022. 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 accompany her spouse 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 500.312 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied the applicant met the criteria of a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 5 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicant was assisted in relation to the review.

6. Prior to the hearing, the applicant provided the following submissions:

   ·     Department of Home Affairs (the Department) notification and decision record dated 11 April 2022.

   ·     Student Visa grant letter for the primary applicant Jaean Jeong.

   ·     Korean passport information for the applicant and her spouse Jaean Jeong.

   ·     Representative’s written submission dated 2 January 2022.

7. The applicant submitted evidence to the Department which has been considered in this decision. Those submissions comprised: Application for a Student (Subsequent Entrant) visa; Certificate of Overseas Student Health Cover; bank statements; genuine temporary entrant statement; marriage certificate; applicant’s response to request for more information.

   Evidence at the hearing

8. The applicant advised she first arrived in Australia in 2013 while holding a Working Holiday visa and worked on a farm. She said she applied for a second visa, but it was not approved. The applicant was married in Korea on 3 December 2021 and returned to Australia in January 2022.  Her husband was granted a student visa in 2020, however, because of COVID-19 he could not enter Australia until January 2022. According to the applicant, she has known her husband since 2006 and they began a relationship in 2016.

9. The applicant advised her husband is studying automotive mechanics and in future he wants to pursue technical development for cars. According to the applicant her husband previously specialised in Japanese language but due to a ‘no Japan movement’ in Korea, he could not continue in that field. She said they came to realise they need to learn something technical and combine it with language skills. The applicant explained about enmity between Japan and Korea that included a boycott of Japanese products and a reduction in tourists.

10. Regarding her educational background, the applicant said she majored in history and after graduation, worked in an office. She later decided to learn a technical skill and worked in a nail salon before coming to Australia. The applicant said she is not currently working in Australia while her husband works in a restaurant. The applicant advised her visa does not allow her to work but if her dependent visa is approved, she will start work in Australia.

11. The Tribunal asked about plans when they return to Korea. The applicant said she and her spouse will find jobs in areas where there is a demand for services for foreign customers. She said they considered opening their own car repair workshop, but they have started a little late and do not have sufficient capital at present. The applicant advised they may look for work with Kia or Hyundai where they can use their language skills as well. Regarding returning to Korea, the applicant declared that what they want to study is a two-year course and they can only look for work opportunities then.

12. The applicant has only her spouse in Australia while in Korea she has her father and a younger brother. He husband has his parents and a younger sister in Korea. The Tribunal was asked if she understood why her visa was refused. The applicant referred to her working holiday refusal and said it was because she did not submit her weekly payslips. She then said the employer at the farm told her he had never had to do that. The applicant said she could not provide documentary evidence, but the employer could be contacted, however, the Department would only accept payslips.

13. The Tribunal asked the applicant why her husband is studying in Australia if he wants to work for a Korean car company. The applicant said developing language skills was a big part of the decision to study in Australia. In addition, she said they wanted to challenge themselves living in a different environment. It was submitted their friends have established themselves, but the applicant and her spouse are late starters, so they wanted to obtain new skills. The applicant stated that when her working holiday visa was refused, she ended up staying longer in Australia than she was supposed to, but she asked the Department and when they told her, she departed. The applicant advised she did seek a review of the decision to refuse her working holiday visa. She said she was issued a bridging visa to allow her to depart. The Tribunal asked the applicant if she spent any time in Australia unlawfully and she said she did not know. According to her evidence, the applicant was told by an agent that she could wait to be notified when she needs to leave Australia. The applicant confirmed she eventually did depart in 2015.

14. In conclusion, the applicant said she does not want to be separated from her husband. She said they are married; they are husband and wife, and it would be heartbreaking if her spouse has to remain in Australia to finish his studies while she has to go back to Korea. The Tribunal was asked to take this into consideration in its decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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 meets the criteria of a genuine applicant for entry and stay as a member of the family unit of a person who holds a Student Visa, in accordance with the Migration Regulations.

17. Clause 500.312 requires as follows:

    The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa 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?

18. 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.

19. 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.

20. The Tribunal considered the applicant’s circumstances in her home country. The applicant advised she had studied history in Korea and worked in an office before training as a nail technician. She did not give details about her employment history prior to travelling to Australia with her spouse. In her oral evidence the applicant stated her spouse has been granted a student visa and intends to seek employment with a major car manufacturer in Korea. The applicant did not provide details about own plans upon returning to Korea but rather focussed on how her husband will use his qualifications gained in Australia. The applicant has her father and a brother still living in Korea as well as her parents-in-law and a sister-in-law. The Tribunal is satisfied the applicant has ongoing personal ties to her home country but is not persuaded those circumstances would serve as a significant incentive to return.

21. The applicant’s circumstances in Australia are that she is accompanying her spouse while he studies in Australia. In her written statement at the time of application it was submitted the primary visa holder would be studying automotive courses in Australia but was struggling with a lot of issues. The applicant stated she wanted to support him mentally and physically to allow him to focus on his studies more comfortably. The applicant declared she is not currently working but intends to help support herself and her spouse if she is granted a student visa as a secondary applicant. The primary visa applicant is employed in a restaurant and the applicant herself intends to work if she is granted a visa. The Tribunal finds the economic circumstances of the applicant would present as a significant incentive not to return to her home country.

22. The value of the course being undertaken is not relevant in the case of a secondary visa applicant.

23. The applicant’s immigration history in Australia includes both her visa and travel history. At the Tribunal hearing on 5 January 2023 the applicant advised she first travelled to Australia in 2013 as the holder of a Subclass 417 Working Holiday visa. The applicant applied for a further temporary visa, that being an extension to the working holiday visa which was refused. The grounds on which the application was refused was that the applicant claimed to have carried out the requisite specified work in regional Australia but did not provide satisfactory evidence. The applicant applied for a review of the Department’s decision before the Tribunal (differently constituted) but declined to attend a hearing and the decision was affirmed. The Tribunal’s decision in that case was made on 16 March 2015 and the applicant was notified of the outcome of the review on 16 March 2015. At the hearing in the current matter, the applicant stated she did not leave Australia after her Subclass 417 visa was refused. It was not until she was granted a Bridging Visa E on 10 November 2015 that she left Australia and returned to Korea. The applicant’s immigration history in Australia weighs against her in the Tribunal’s assessment of whether the applicant meets the genuine temporary entrant criteria, as required for the grant of a student visa.

24. 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).

25. The Tribunal assessed the applicant’s circumstances individually and cumulatively. The Tribunal finds the majority of considerations weigh against the applicant in deciding whether the genuine temporary entrant criteria has been met. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. The Tribunal finds the applicant does not meet cl.500.312.

26. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.312.

27. 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

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

    Wendy Banfield
    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;

    d.whether 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.