KIM (Migration)

[2018] AATA 2484

KIM (Migration) [2018] AATA 2484 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaehan KIM

CASE NUMBER:  1517639

DIBP REFERENCE(S):  BCC2015/2508733

MEMBER:Stephen Conwell

DATE:5 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 05 June 2018 at 3:54pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine Temporary Entrant – Enrolment requirements – Final assessment results – No current enrolment in a course of study – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.40A, Schedule 2 cls 572.223, 572.231

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 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 28 August 2015. The delegate decided to refuse to grant the visa on 3 December 2015. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of the “Genuine Temporary Entrant” (GTE) criterion which applies in each sub-class of the student visa.

4. The applicant appeared before the Tribunal on 18 December 2017 to give evidence and present arguments. His registered migration agent also attended.

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

6. Where used in this decision:

   a.   The applicant refers to the first-named applicant;

   b.   COE refers to Certificate of Enrolment;

   c.   PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   d.   VET refers to Vocational Education and Training;

   e.   The Department refers to the Department of Immigration and Border Protection (now part of the Department of Home Affairs);

   f.      Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application;

   g.   GTE refers to the Genuine Temporary Entrant criterion for Student visa applications;  and

   h.   IELTS refers to the International English Language Testing System.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

7. At Hearing, the applicant confirmed the following:

   a.   he first came to Australia on 14 December 2007 on a Working Holiday visa;

   b.   he was granted his initial student sub-class 573 onshore on 8 May 2009, which was valid to 15 March 2011;

   c.   since his initial arrival in Australia he has been granted three further Student (sub-class 572) visas valid from 14 July 2011 to 30 August 2015.

   Study History

8. The delegate’s decision notes that in the five and a half  years to the point of the her decision on 3 December 2015, the applicant had completed studies in:

   a.   Intensive English

   b.   Diploma of Building Design and Technology; and

   c.   an Advanced Diploma Building Design (Architectural).

9. The delegate notes that the applicant did not respond to the Department’s invitation to provide evidence of completion of courses in Australia, nor did he provide information or evidence relating to the Genuine Temporary Entrant criterion or provide any supporting documentation in relation to his Student Visa application.  Accordingly the delegate found the applicant to not be a genuine student and further, that the applicant was using the Student visa program to maintain residence in Australia and its circumvent it’s permanent migration programs.

10. The delegate’s decision notes that the applicant had been enrolled in an Advanced Diploma of Building Design (Architectural) but had not completed it at the time of the delegate’s decision.

11. At Hearing the applicant referred to his Statement of Purpose that he had submitted to the Tribunal. Essentially the applicant’s GTE Statement refers to the difficulties that he encounters in being in a foreign country, trying to study in English, whilst at the same time seeking to improve upon his rudimentary English language skills.  The applicant also submitted evidence of his having sustained a back injury in early 2017.

12. In evidence the applicant submitted a medical referral letter from the Southgate medical Centre dated 1 March 2017 addressed to Mr David De La Harpe, medical specialist at Epworth Centre.  The referral letter advises that the applicant slipped and fell on ice whilst holidaying in Korea in mid-Jan 2017.  It notes that his pain worsened following the flight back to Australia and since his returning to casual work in hospitality.  It also notes that a recent scan shows “canal stenosis” and L5 nerve root compression.

13. At Hearing the applicant confirmed that he had completed his current studies, the Advanced Diploma of Building Design (Architectural) in June 2017.  As a consequence he did not have a current COE as he did not plan any further study in Australia.  In his oral evidence the applicant stated that he had failed a subject in his diploma and as a consequence he had submitted a further assignment in order to obtain a “re-grading”.  He expected to receive the results of his re--grading during the week of this Hearing.

14. The applicant explained both in his oral evidence and in his Statement of Purpose that his studies were a challenge for him right from the start.  In his first year he struggled with the Working Drawing unit and with CAD class.  In his second year he struggled with Design class and Working Drawing again.  He explained that he needed to pass all units in order to graduate, and his career goal was to return to career and open a design studio.

    Evidence of Enrolment

15. The Tribunal advised the applicant that whilst the issue before the delegate was whether the applicant met the criterion in cl. 572.223. However, the issue at the time of Hearing is whether, at the time of decision, the applicant meets the enrolment requirements for a student visa.  With limited exceptions, none of which are relevant to the present case, the Regulations require for all sub-classes of Student visas there is a time-of-decision criterion that an applicant must have a current COE or valid offer of enrolment in a principal course of study.

16. The issue therefore before the Tribunal is whether, at the time of decision, the applicant meets the enrolment requirements for a student visa.

17. The applicant confirmed that he understood the implications of lacking this mandatory criterion, stating that his continued presence in Australia was only to obtain the results of a final assessment which might possibly change his final results for his Advanced Diploma studies.  He advised the Tribunal that it was his intention to return permanently to South Korea within a few weeks off the Hearing as he expected to have learnt of his final results by that time.

18. In light of the applicant’s evidence, the Tribunal decided to grant the applicant a period of two months in which to finalise his marks in the Advanced Diploma and make arrangements for his permanent return to his home country.  The applicant therefore had until 19 February 2019 in which to make further submissions or provide further evidence in support of his application.

19. At the time of decision no further submissions have been received from the applicant. In a response to a request from the Tribunal, the applicant’s representative advised by email of 4 June 2018 that the applicant is in Korea and that he had failed his final subject. Movement records indicate that the applicant departed Australia on 21 January 2018, for weeks after attending the Hearing and has not returned.

20. With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application.

21. This requirement does not apply to certain 'eligible higher degree students', 'eligible university exchange students', and 'eligible non-award students'. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.

22. According to evidence before the Tribunal, the applicant has completed courses in Intensive English, a Diploma of Building Design and Technology, an Advanced Diploma of Building Design (Architectural). The applicant confirmed at Hearing that he was not currently enrolled in a course of study. In the invitation to attend a Hearing dated 16 November 2018, the applicant was asked to provide a copy of a current Certificate of Enrolment (COE) as required for the grant of a student visa. However no COE was provided at Hearing or tendered subsequently to the Tribunal.

23. At the Hearing the applicant was again requested to provide to the Tribunal a copy of his current Certificate of Enrolment.  He did not do so and gave oral evidence that he was not currently enrolled, nor does he have an offer of enrolment in any course of study in Australia. He completed his last course of study in June 2017. Accordingly, there is no evidence before me that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore the current enrolment pre-requisite for all student visa sub-classes is not met.

24. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.572.231 is not met.

25. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.

26. For these reasons, 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.

    Stephen Conwell
    Member