Kang (Migration)

[2022] AATA 1415

Kang (Migration) [2022] AATA 1415 (19 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Taemin Kang

REPRESENTATIVE:  Mrs Heon Kyoung Kim (MARN: 0638093)

CASE NUMBER:  2116057

HOME AFFAIRS REFERENCE(S):          BCC2021/589555

MEMBER:Vanessa Plain

DATE:19 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 19 May 2022 at 4:05pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, study and work history – length of time onshore – non-completion of courses in different subject areas before enrolment in current course – no evidence of availability of courses or economic prospects in home country provided – parents and brother in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), 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 Home Affairs on 20 October 2021 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 26 April 2021. 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 undertake study 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 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

4. The applicant appeared before the Tribunal on 13 May 2022 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 is a genuine applicant for entry and stay in Australia as a student.

8. 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?

9. 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.

10. 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.

    Documentary evidence in support of application

11. The applicant submitted the following documents in support of his application, as follows:

    ·    COEs for a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management 

    ·    A Response to Request for Student Visa Information (s.359(2) of the Act) (Response)

    ·    A Statement 

    ·    A suite of academic documents evidencing grade attainment and course completion

    ·    The delegate’s decision record

12. The Tribunal has considered these documents, the material before the delegate, the decision record and the applicant’s oral evidence at hearing. 

    Entry and Visa History

13. The applicant in this case is a Korean man who first arrived in Australia on 24 November 2014 utilising an initial Student (Class TU) (Subclass 573) visa.  Thereafter the applicant was granted a further student visa, a Working Holiday visa and associated bridging visas.            

    Current Status

14. The applicant is currently enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management which is scheduled to conclude in April 2023, thereby extending the applicant’s time in Australia to approximately 9 years.     

    Previous Study and Work History before entering Australia

15. The applicant completed high school in his home country and did not disclose a working history prior to entry into Australia. 

    Study History in Australia

16. Since arriving in Australia, the applicant has been enrolled in the following courses:

    ·A Diploma of Network Security which he did not complete;

    ·An Advanced Diploma of Network Security which he did not complete;

    ·A Certificate IV in Information Technology Networking which he did not complete;

    ·A Diploma of Information Technology which he did not complete;

    ·A Diploma of Business Administration which he did not complete;

    ·An Advanced Diploma of Leadership and Management which he did not complete;

    ·A Certificate IV in Commercial Cookery which he is studying presently; and

    ·A Diploma of Hospitality Management which he is a future enrolment scheduled to conclude in April 2023.  

    Applicant’s circumstances in their home country  

17. The Tribunal has had regard to the applicant’s circumstances in South Korea, as follows:

    Reasons for not studying in home country

    ·In his Statement Response, the applicant stated that after weighing his options and talking with his parents, he decided it would be worthwhile studying in Australia.     

    Personal ties to home country

    ·The applicant’s parents and brother live in Australia and he lives with them.  His brother is studying and he is unsure of what visas his parents are utilising.   

    ·As to the applicant’s community ties to South Korea, he claimed to have friends from school and church in his home country.

    ·As to the applicant’s financial ties to South Korea, he claimed to own property in South Korea jointly with his brother valued at $130,000.

    ·The applicant has returned home to South Korea once arriving onshore in 2014. 

    Economic circumstances in Australia as incentive not to return home

    ·In his Response, the applicant summarised his working history in Australia.  He has worked extensively as a cook, cleaner, warehouse staff and making toothpaste.

    ·In his oral evidence, the applicant stated that he is currently working for a delivery company approximately 20 hours per week and he wants to get a cooking job.

    Military service or civil/political unrest concerns in home country

    ·The applicant has no such concerns.

18. The Tribunal is unable to accept the applicant’s reasons for not studying in South Korea, due to the fact that the applicant has failed to demonstrate that he has undertaken any research into the availability of the course in his home country.

19. The Tribunal finds that the applicant does not have any significant personal ties to South Korea, in view of the applicant’s evidence that his parents and sibling live in Australia with him and further demonstrated by the fact that since 2014, he has only returned home to South Korea to visit on one occasion.

20. The Tribunal is unable to place significant weight on the applicant’s alleged financial ties to Australia, as he has not produced any evidence of his alleged property holdings with his brother.   

21. The Tribunal finds that the length of time the applicant has been onshore without returning home (noting that he has returned home once since 2014) is, in and of itself, indicative of an intention on the part of the applicant, to remain in Australia on a more permanent basis.   

22. The Tribunal finds that the applicant’s strong working history in Australia, when considered against the fact that strong economic prospects in his home country have not been evidenced, may be a motivating factor for the applicant to remain in Australia on a more permanent basis, rather than out of a genuine desire to temporarily reside in Australia as a student.  

23. The Tribunal places significant weight on the fact that the applicant has been in Australia since 2014 and has not completed a single course of study, as being behaviour that is inconsistent with that of a genuine student.  The Tribunal informed the applicant that his study history may be the reason or part of the reason for affirming the delegate’s decision and invited the applicant to comment or respond.  The Tribunal informed the applicant that he may have further time to consider his response. The applicant did not need more time to consider his response.

24. The applicant stated that he came to Australia and studied IT and business, which weren’t really things he wanted to do but he likes cooking and would like to complete the courses.    

25. While the Tribunal accepts that the applicant wishes to complete his cooking studies, on the basis of the applicant’s evidence, the Tribunal cannot be satisfied that there is a reasonable explanation for the applicant’s lack of academic progression since 2014 nor is it satisfied that the current course in which the applicant is enrolled will further assist his career development or earning potential in view of the work experience as a chef that he already has.         

26. Taking in account all the aforementioned matters, the Tribunal finds that the applicant’s circumstances in his home country do not provide a significant incentive for him to return there at the conclusion of his studies.

    Applicant’s potential circumstances in Australia  

27. The Tribunal has had regard to the applicant’s potential circumstances in Australia, as follows: 

    Applicant’s ties with Australia

    ·The applicant’s brother and parents live with him in Australia presently.   

    Evidence visa program being used to circumvent migration program

    ·The applicant has held multiple visas during his time in Australia, during which time he has failed to complete a single course of study and he now seeks to undertake a further vocational level course.   

    Applicant’s knowledge of living in Australia, their intended course and level of research into their intended course and course provider

    ·In his Response, the applicant stated (verbatim) as follows:

    “My current education provider salisbury college australia provides a welcoming atmosphere, and offer comprehensive courses, high level of education and training, large amount of resources, and variety of diverse experiences. Teachers and staff are always friendly and providing support and helping students each step of the way.”

28. The Tribunal finds that the applicant has not undertaken any significant research into his proposed course, course contents, education provider or educational objectives based on the general assertions set out above, which is not behaviour consistent with an individual whose intention is to remain in Australia for the primary purpose of study.

29. Due to the nature of the vocational level course the applicant is currently undertaking, when considered against the applicant’s complete lack of reasonable academic progress and his strong working history in hospitality, the Tribunal is of the view that the applicant is enrolling in his current course with the primary intention of attempting to circumvent the intention of the student migration program and remain in Australia on a more permanent basis.  

30. Although the Tribunal acknowledges that there is no evidence before it demonstrating the that applicant has significant community ties to Australia, the presence of the applicants immediate family members onshore (the applicant’s parents and brother) may present as an incentive to the applicant to remain in Australia on a more permanent basis.     

    Value of the course to the applicant’s future

31. The Tribunal has had regard to the value of the course of study to the applicant’s future, as follows:

    Is the course consistent with the applicant’s current level of education?

    ·The course is a regression from the applicant’s previous (albeit unsuccessful) studies at Advanced Diploma level. 

    Will the course assist applicant to obtain employment or improve employment prospects?

    ·In his Response, the applicant stated;

    “I want to get a job in cooking and food styling field using my previous experience of cooking in a restaurant, so I think the knowledge about cooking that I am learning at school will be helpful for professional cooking and food styling.  To achieve my future plan, I strongly wish to complete my current course and get a Certificate IV and Diploma

    qualification.”

    Relevance of course to past study?

    ·The course content is not consistent with the subject matter of the applicant’s previous academic pursuits. 

    Expected remuneration using qualifications in home country compared to what is receivable in Australia?

    ·In his Response, the applicant stated:

    “I did come research and I expect around $60,000 per annum.”

32. The Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to his future.  The Tribunal is unable to accept the applicant’s assertions as to the value of the course to his future as he has not provided any objective evidence of his understanding of the job market in South Korea or other objective research as to projected salary, demonstrating how the completion of his current course will improve his employment prospects or add value to his earning capacity, in view of the industry specific work experience he already holds.   

33. While it is not uncommon for an applicant to re-educate themselves or seek to acquire more practical skills, the Tribunal finds that it is not consistent with the behaviour of a genuine student to consistently fail to complete any courses of study and then seek to enrol in a further course of study, where it is not objectively demonstrated how undertaking further study will be beneficial to the applicant in the future, to an extent that would outweigh the financial commitment involved in doing further study.    

    Immigration history

34. The Tribunal has had regard to the applicant’s immigration history. The Tribunal notes that there is no evidence of further visa refusals or any visa cancellations before the Tribunal.  However, the Tribunal is concerned by the fact that the applicant has been in Australia since 2014 and has failed to complete a course and he now seeks to undertake a course which he has not objectively demonstrated will add value to his future. 

35. The Tribunal simply does not find this behaviour to be consistent with that of a genuine student who intends to remain in Australia temporarily.  Rather, the Tribunal finds that this behaviour demonstrates an intention to use the student migration program to maintain ongoing residence in Australia.    

36. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.   

37. Although the applicant provided information to the Tribunal demonstrating that he has successfully completed various courses to date, considering all the circumstances and all the evidence before the Tribunal, the Tribunal does not accept the applicant’s claims to be those of a genuine temporary entrant.

38. 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).

39. 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.

40. 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

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

    Vanessa Plain
    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.