Kim (Migration)

[2018] AATA 4316

Kim (Migration) [2018] AATA 4316 (18 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Enoch Kim

CASE NUMBER:  1708470

HOME AFFAIRS REFERENCE(S):           BCC2017/184791

MEMBER:David Barker

DATE:18 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 18 September 2018 at 7:32am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – Genuine temporary entrant – Pursuing clear vocational / academic pathway in health – Decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 2, cl 500.212

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration and Border Protection on 30 March 2017 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 14 January 2017. 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) because there was insufficient evidence to demonstrate that the applicant is a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 31 July 2018 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

6. The applicant is a national of South Korea and is 23 years old.

7. The Department delegate’s decision record states the applicant first arrived in Australia in October 2003, when she was eight years old, as a secondary applicant on a Student visa granted to one of her parents. The delegate noted that the applicant was included as a dependent child in an application for a subclass 886 visa, which was refused in October 2014.  She was subsequently, in March 2016 granted a subclass 417 working holiday visa offshore, which was valid until March 2017.  The delegate expressed concern the applicant then applied for a student visa, on the basis of an intention to undertake the Bachelor of Nursing.

8. At the hearing the applicant provided the tribunal with translated medical information regarding her mother’s serious medical condition.

9. The Tribunal gave the applicant time following the hearing to provide further evidence and on 1 August 2018 she provided an interim academic transcript from the Western Sydney University demonstrating her successful completion of the 2017 academic year and 2018 autumn semester of the Bachelor of Nursing degree program she is currently undertaking.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. 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?

12. 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 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.

13. 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.

14. I found the applicant to be a credible witness who gave her oral evidence in a calm, matter of fact manner without embellishment.  The applicant’s oral evidence is consistent with the documentary evidence she provided with her review application and statements she had previously provided to the Department with her visa application.  I am satisfied weight can be placed on the applicants’ evidence.

15. In response to an invitation to comment on the concerns raised by the delegate about the applicants general migration history to Australia, the applicant said she was brought to Australia by her parents when she was a child and did not get a say in her migration history until she applied to return her as the primary applicant for a working holiday visa in 2016.  She acknowledged her parents sought a pathway to permanent residency in Australia and that it was a stressful time for her as a child attending primary and secondary school, as her parent’s visa applications were unsuccessful.

16. The applicant gave evidence her mother and aunt are nurses and that her family would like her to get a tertiary qualification.  She said she would also like to gain a qualification that will give her a viable future vocational pathway and that an Australian nursing qualification will be highly regarded back in her home country. 

17. She said her mother [is] seriously ill and that it is a distressing time for all of their family.  She said her parents do not want her to defer her studies, as getting a tertiary degree is something they very much want her to achieve.  She said she is progressing well in the Bachelor of Nursing she is undertaking at the Parramatta campus of Western Sydney University.  She said her mother’s illness has provided her with further motivation to study hard so she can return to Korea as a registered nurse after she has finished her course. 

18. The applicant said she lives with her Aunt, who has permanent residency in Australia. She said her aunt does not charge her for board and lodging.  She said her parents and her younger sister are in South Korea, where her father works in the construction industry and her sister works as a translator.  She has previously provided the Tribunal with a written statement indicating her parents financially support her studies in Australia. The applicant gave evidence she had returned to Australia two weeks prior to the hearing, after spending time with her mother in South Korea.

19. Having considered the applicant’s evidence during the hearing and the applicant’s circumstances overall, I am satisfied that her explanation for her study goals is both reasonable and plausible.   I accept that the applicant has some relatives in Australia, with whom she is staying, but I am satisfied her family ties to her home country are strong and provide her with an incentive to return there after her studies are completed.  There are some gaps in her study history, but I am satisfied she has established a clear vocational / academic pathway in health that she is now diligently pursuing.  There is no evidence before the Tribunal to suggest the applicant has an economic reason for trying to maintain her residency in Australia.

20. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

    Does the applicant intend to comply with visa conditions?

21. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

22. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

23. The Tribunal does not have any evidence to indicate the applicant has not complied with visa conditions in Australia. There is no indication she is likely to not comply with conditions attached to any future student visa.

24. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

25. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

26. The Tribunal has considered the applicant’s circumstances as a whole and has given weight to the applicant’s claims of wanting to improve her career prospects in South Korea and to meet her personal and also familial expectations she attain a tertiary qualification.  The tribunal accepts the applicant’s contention she should not be held responsible for aspects of her migration history when she was a dependent child, reliant and on and under the authority of her parents.  The Tribunal has also placed weight on the fact the applicant has displayed consistency in her endeavours to complete her current study pathway.  

27. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

28. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

29. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    David Barker
    Member