Kim (Migration) - [2024] AATA 4045

Kim (Migration) [2024] AATA 4045 (8 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Jehee Kim
REPRESENTATIVE:  Ms Minji Lee (MARN: 1682317)
CASE NUMBER:  2308008
HOME AFFAIRS REFERENCE(S):          BCC2023/2538456
MEMBER:T. Quinn
DATE:8 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 08 October 2024 at 9:34pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant is motivated by factors other than study – lengthy period of time onshore – not satisfied that applicant is a genuine student who intends genuinely to stay in Australia temporarily – no strong incentive to return to her home country – use the student migration program to maintain ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.211
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 27 April 2023, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]
[1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 24 May 2023, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]
[2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 7 June 2023, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]
[3] Pursuant to sections 338(2) and 347 of the Act.
In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since making their application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 15 July 2024, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The s359(2) letter requests that a questionnaire (‘the questionnaire’) be completed by the applicant.
The applicant responded to the s359(2) letter on 25 July 2024, including providing the completed questionnaire, which was within the prescribed timeframe.
The applicant was listed to appear before the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 4045
Decision Date: 8 October 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a Student (Temporary) (Class TU) visa, subclass 500 (Student) visa. The applicant, a 42-year-old female Korean citizen, had been in Australia since May 2016. The court was required to determine whether the applicant was a genuine student who genuinely intended to stay in Australia temporarily, and whether she had a strong incentive to return to her home country, or if she was using the student migration program to maintain ongoing residence in Australia.

The court considered the applicant's history, including her prior completion of a Bachelor of English Literature in Korea in 2008 and ownership of a boutique business there until December 2016. In Australia, she had undertaken several courses: a Certificate II in Business, six units towards a Certificate IV in Business, and a Diploma of Beauty Therapy. The court noted that the applicant claimed to have completed a Certificate III in Business but had not provided corroborating evidence for this. The court also acknowledged the Minister's Direction under section 499 of the Act, confirming its lawfulness and the obligation to consider its terms. However, the court affirmed its independence as a statutory body to reach its own conclusions on the merits of the case, applying established case law regarding the proper approach to guidelines, and noting that such guidelines might not be relevant if the facts presented did not engage specific matters identified by them.

The court found that the applicant was motivated by factors other than study, had spent a lengthy period in Australia, and was not satisfied that she was a genuine student with a genuine intention to stay temporarily. Furthermore, the court determined that there was no strong incentive for the applicant to return to her home country, concluding that she appeared to be using the student migration program to maintain ongoing residence. Consequently, the decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Direction is a lawful direction of the Minister.[5] I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[6] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me. However, I recognise that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[7] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[8] [5] In accordance with section 499 of the Act. [6]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].[7]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).[8]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).CONSIDERATION OF CLAIMS AND EVIDENCE The applicant in this case is a 42-year-old female Korean citizen who first arrived in Australia on May 2016.[9] Prior to her arrival in Australia, the applicant completed Bachelor of English Literature in Korea in 2008.[10] She owned her own boutique business from August 2013-December 2016 in Korea earning AUD30,000 equivalent per annum.[11] [9]See the questionnaire and evidence at hearing. It appears the delegate’s decision has incorrectly recorded the applicant’s first arrival onshore as 2015 and I prefer the applicant’s evidence that she arrived in 2016.[10]See the questionnaire and evidence at hearing. [11]See the questionnaire and evidence at hearing. In Australia, the applicant completed:a.a Certificate II in Business (corroborating certificate dated August 2016 provided);b.six units in a Certificate IV in Business (corroborating statement of attainment dated June 2020 provided); andc.a Diploma of Beauty Therapy (corroborating certificate dated July 2021 provided).The applicant claims also to have completed a Certificate III in Business but has not provided a corroborating certificate for this.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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