Kim (Migration)

[2020] AATA 3574

Kim (Migration) [2020] AATA 3574 (27 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hyunsook Kim

CASE NUMBER:  1914936

HOME AFFAIRS REFERENCE(S):          BCC2019/1438574

MEMBER:Elizabeth Tueno

DATE:27 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 27 August 2020 at 2:26pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no response to tribunal’s invitation to provide further information – employment, visa, travel and study history – only one course completed in nearly four years – value of proposed courses – incentives to stay or return – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C(1), 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

CASE
Hasran v MIAC [2010] FCAFC 40

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 29 May 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 March 2019. 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 (the Regulations). The delegate was not satisfied that the information provided by the applicant demonstrated that they met the temporary entrant requirements for the grant of a student visa.

4. On 7 May 2020, the Tribunal formally wrote to the review applicants pursuant to section 359(2) of the Act inviting the applicant to provide further information, including in relation to their enrolment, to the Tribunal.  The Tribunal did not receive any response to that written invitation.    

5. The Tribunal is satisfied that the review applicants were properly sent an invitation to provide further information under section 359(2) of the Act.  The invitation was sent to the review applicant by email, being the address provided by the review applicant in connection with this application for review.

6. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1) of the Act.

7. The Tribunal finds that the review applicant did not provide further information as requested.  In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3).  The effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

8. It is appropriate to highlight that a decision maker is not required to make the applicant’s case.  It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met.  Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

9. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. 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?

13. 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.

14. 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.

15. The applicant has not provided any evidence in support of their application to the Tribunal.  The Tribunal has had regard to the material contained in the Department’s file. 

16. The applicant is a 39 year old woman from South Korea.  On or around 11 December 2016, the applicant was granted a student visa, which remained valid until 10 April 2019.  Her genuine temporary entrant statement (GTE statement”) suggests that she completed a Certificate III in Business in February 2017.  She then enrolled in an Advanced Diploma of Marketing and Communication at Australis Institute of Technology and Education.  In August 2017, she was advised that the college had lost its registration.  She has then enrolled in a Diploma and Advanced Diploma of Leadership and Management course at Australasia International School, which will see her enrolled in a course of study until 23 July 2021. 

17. The applicant has studied at tertiary level in her home country.  She majored in industrial arts at Baje Arts College and graduated in 2003.  She stated that her family’s apple farming business was experiencing financial difficulty and after discussions with her parents she decided to study business to help the family business.  She said, “while searching for a place to study abroad, I decided to study in Australia where I visited on a working holiday visa and studied English on a student visa”.  There is no evidence that the applicant even considered studying in her home country.  Given she had already undertaken study in her home country and based on the evidence before it, the Tribunal does not consider the applicant has sound reasons for not studying in her home country.  It does not even appear to have been a consideration for her and there is no explanation as to why this would be the case.

18. The Tribunal acknowledges that the applicant has family in South Korea, namely her father and two sisters (as stated in her visa application) and that this represents some personal ties to the applicant’s home country.  However, the applicant has now been in Australia for nearly four years and has only returned to South Korea once during that time for a period of 16 days.  In the last four years, she has taken a month long holiday to Vietnam in 2016 and two week-long holidays to Thailand in 2018.  The applicant has spent more time visiting other countries than she has in her own home country in the last four years.  The Tribunal considers that these matters demonstrate that the applicant’s family in South Korea are not a significant incentive for her to return.

19. In relation to her economic circumstances, the Tribunal notes that the applicant was working at an insurance company in South Korea prior to coming to Australia in 2016.  Her family’s apple farming business is not doing well financially, and it was for this reason that the applicant decided to come to Australia for study so that she would be able to help the family business.  Once she completed the Diploma of Business, the applicant could have returned to South Korea to put her knew business knowledge into application and assist the family business.  But the applicant did not do this.  She now states that she wants to focus on her own career and work in the city rather than in the countryside with her family. The fact that the applicant’s family is suffering from financial difficulties and instead of returning to assist, the applicant has remained in Australia to continue studies suggests that either the family financial situation is not as dire as the applicant suggested, or that she is avoiding returning to her home country because of her family’s financial situation.  Neither of scenarios assist the applicant.  In the case of the former scenario, this would affect the credibility of the applicant.  If the latter scenario is the case, then it demonstrates that the applicant’s economic circumstances would be an incentive for her to not return to her home country.

20. There is no evidence to suggest that the applicant has military service commitments in South Korea or that she has any concerns about political or civil unrest there.

21. The Tribunal has considered the applicant’s potential circumstances in Australia. There is no evidence that she has family living in Australia, nor does she work here.  However, she previously lived in Australia between November 2006 and November 2008 on two working holiday visas.  She then remained in Australia on a student visa for a further nine months studying English.  So the Australian environment is not new to the applicant.  It is also relevant that in the last nearly four years, there is only evidence that the applicant has completed one Diploma course in early 2017.  Even taking into account the difficulties with her college losing its registration, this does not explain why the applicant has not completed further courses in the last four years.  This all suggests that the applicant is in Australia not solely for the purpose of study and leads the Tribunal to suspect that the applicant is using the student visa to maintain ongoing residence in Australia and that in doing so, is attempting to circumvent the intentions of the migration program.

22. In relation to the value of the proposed courses, it is noted that the applicant has previously completed tertiary studies in industrial design and a Diploma of Business.  The proposed courses are in a slightly different area, namely leadership and management, and given the difference in the few courses she has studied previously, the Tribunal considers that the proposed courses are consistent with the applicant’s current level of education.

23. The applicant said in her GTE statement that studying leadership would be helpful to be re-employed as a “career employee”.  She said she could be re-employed by her previous employer, Donghu Fire Insurance Co, or be employed by a competitor company.  First, there is no letter of offer or evidence that her previous employer would re-hire he.  Second, it is unclear what role she would be applying for.  Third, there is no evidence about how the proposed courses would assist her, or even be relevant to, a job at Donghu Fire Insurance Co or one of its competitors.  Nor is there evidence that the proposed courses would increase her remuneration.  It is difficult, on the evidence before the Tribunal, to find that the proposed courses are relevant to even her previous work at Donghu Fire Insurance Co.

24. Lastly, the Tribunal has considered the applicant’s immigration history.  There is no evidence to suggest that the applicant has another Australian visa application pending a decision.  Nor is there evidence that she has ever been refused a visa or had a visa cancelled by another country.  The Tribunal takes these matters in the applicant’s favour.  However, the applicant has now spent approximately 1300 days onshore in Australia and during that time only 16 days in her home country.  She spent more time in Vietnam and Thailand on separate holidays in 2016 and 2018 than in her home country.  The Tribunal also notes that the applicant has spent two years on two working holidays in Australia between 2006 and 2008.  While there is no reason preventing a person from re-entering Australia after spending time on a working holiday visa, it is significant that since returning in December 2016, she has remained in Australia for nearly four years.  These matters all suggest that the applicant is using the student visa to maintain ongoing residence in Australia. 

25. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and therefore the applicant does not meet cl.500.212(a). 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.

26. 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

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

    Elizabeth Tueno
    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;

    dwhether 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.