Koo (Migration)

[2020] AATA 3573

Koo (Migration) [2020] AATA 3573 (4 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Taejoon Koo
Ms Hwirin Choi

CASE NUMBER:  1909444

HOME AFFAIRS REFERENCE(S):          BCC2018/5347748

MEMBER:Amanda Upton

DATE:4 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 4 July 2020 at 3:29pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met– economic incentive to remain in Australia –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, 359,499
Migration Regulations 1994, Schedule 2, cls 500.211, 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 26 March 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 29 November 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 they did not consider the applicant to be a genuine temporary entrant for entry and stay in Australia as a student.

4. The applicants appeared before the Tribunal on 3 July 2020 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 applicants were assisted in relation to the review by their registered migration agent.

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 temporary entrant 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.

Entry and Visa History

1. The applicant in this case arrived in Australia on 28 April 2016. He has been onshore for a period of over 4 years.

2. The applicant was granted a (Temporary) Working Holiday (subclass 417) visa on 24 March 2016. The applicant arrived in Australia on 28 April 2016 as did his wife, the secondary applicant.

3. The applicant was granted a (Temporary) Student (subclass 500) visa on 18 August 2017 as a secondary applicant to their spouse, Hwirin CHOI.  This application was made on expiry of that visa.

4. The applicant lodged an application for a second Student visa – their first as primary applicant - on 29 November 2018. A Bridging Visa A (subclass 010) visa was granted to the applicant on the same date to remain in effect until a decision is made on the substantive visa application.

Time Onshore

1. The applicant has travelled back to their home country twice since arrival in Australia, in 2017 and 2019 for 23 and 15 days respectively. He has also travelled to Japan three times and the USA once.

Study History

1. Prior to arriving in Australia, the applicant had obtained a Bachelor of Japanese Language

2. The applicant had worked in a number of jobs as either a cleaner or an educator.

3. Since arriving in Australia, the applicant has completed a Certificate IV in Business and is currently studying a Diploma of Leadership and Management. He has a future enrolment in an Advanced Diploma of Leadership and Management.

Evidence in Support of Application

1. In support of their application, the applicant has provided;

   ·     Response to s359(2) request made by the Tribunal

   ·     Completion Certificate for Certificate IV in Business

   ·     Bank records from Korea

   ·     Bank records from Australia

   ·     Korean Insurance documents

   ·     Rental contract for Korean property

   ·     Flight records to Korea

   ·     GTE statement

The Tribunal has considered these documents, the Delegate’s decision and the evidence given by the applicant in reaching its decision.

Applicant’s circumstances in their home country

1. The Tribunal has had regard to the applicant’s circumstances in Korea as follows;

   Reasons for not studying in home country

   ·The applicant is not studying in Korea as it is difficult to gain entry, studying in Australia is more practical as it is relatively short and will assist in English proficiency.

   ·The applicant considers that a certificate of graduation from a foreign university will be of benefit to finding a job.

   Personal ties to home country

   ·The applicant’s parents live in Korea as does his brother. He keeps in contact with them at least once a week.

   ·The applicant and his wife were involved in local religious groups in Korea and continue to be so in Australia.

   ·The applicant lists saving in banks in Korea and Australia as well as a property in Korea. The property is rented to a third person and he derives a monthly income of $500AUD for it.

   ·The applicant has returned home twice since arrival in Australia for a period of 48 days in total over the period of just over 4 years.

   Economic Circumstances in Australia as incentive not to return home

   ·The applicant has worked consistently since arrival in Australia in manufacturing and delivery driving. He is currently employed as a driver and in aged care earning approximately $400 a week.

   ·The secondary applicant works in a clothing store approximately 4 hours a week. She earns around $100 a week.

   Military service or civil/political unrest concerns in home country

   ·The applicant raises no such concerns.

2. The Tribunal is unable to accept that applicant’s assertion about study in his home country, it is a bare claim made without evidence. The applicant has not provided any specific details establishing benefits to be gained by studying the proposed course in Australia as opposed to studying in his home country considering the financial outlay required to study in Australia.

3. The Tribunal acknowledges that the applicant has community ties in Korea but considers them to be on a par with those that he has established in Australia.

4. The Tribunal acknowledges that the applicant has family ties to Korea. The primary and secondary applicant both expressed that they need to go back to Korea to look after family members. However, when considered in light of the time already spent in Australia and the ties the applicant has in Australia, the Tribunal does not consider them to be a significant incentive to return to Korea.

5. The Tribunal is concerned by the extent of time that the applicant has remained onshore, being over 4 years. The fact in and of itself is indicative of an intention to remain in Australia on a more permanent basis. The applicant was informed of the Tribunal’s concerns and responded; that their initial plan was to go back but they fell into the situation requiring the Australian degrees and more English. His wife hadn’t had any university degree and then she needed that. He needed to add more Australian degree so they decided to stay on.
   
   

6. The Tribunal considers that the applicant has an economic incentive to remain in Australia due to his strong previous and current work history. The applicant’s ongoing employment presents as an incentive to remain in Australia

Applicant’s potential circumstances in Australia

1. The Tribunal has had regard to the applicant’s potential circumstances in Australia, based on the evidence provided at the hearing, as follows;

   Applicant’s ties with Australia

   ·The applicant’s spouse is with him in Australia and listed as a secondary applicant to this application

   Evidence visa program being used to circumvent the migration program

   ·The applicant’s courses are short and consistent in subject.

   ·The applicant and primary applicant have spent over 4 years in Australia and have ‘swapped roles’ as the primary and dependent visa holders.

   Primary and secondary applicants relationship of concern

   ·The applicant’s spouse is included in the visa application as a dependent person.

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

   ·The applicant chose the provider as they offer quality and affordable education. He found it by internet research; phone enquires and visits to schools. The school has a Korean speaker on staff which has been helpful for him.

2. The Tribunal gives significant weight to the fact that the applicant’s spouse is with him, as a factor that serves as a significant incentive for the applicant not to return to Korea. The Tribunal acknowledges that the applicant has family ties to Korea however when balanced against his family ties in Australia, the Tribunal does not consider them to be a significant incentive to return to Korea.

3. The applicant told the Tribunal that he has strong religious ties to Korea and his religious affiliation means that he needs to go back however the Tribunal notes that he has developed ties related to his religious activity in Australia.

4. The Tribunal has concerns about the fact that the applicant and his spouse have been in Australia for over 4 years and have ‘swapped roles’ between them, one holding the primary student visa and the other holding the dependant student visa. When considered this behaviour in the context of the value to the course to the applicant’s future, discussed below, the Tribunal is of the view that the applicants are engaging in this conduct to circumvent the intention of the student visa program in order to remain in Australia on a more permanent basis.

5. The Tribunal informed the applicant of this concern and he responded; that their initial plan was to go back to Korea after study but he received a message from a friend in Korea and got a job offer for once he finished a business program in Australia. Ms Choi told the Tribunal that a while ago her father passed away and her uncle approached her and asked about their situation in Korea. He then said that he has some employment once they had finished the business studies here and this is why they decided to extend their stay here.

Value of the course to the applicant’s future

1. The Tribunal has had regard to the value of the course/s of study to the applicant’s future as follows;

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

   ·The current course is at a lower level than the applicant’s previously completed study. It is also of a significantly different subject.

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

   ·On return to Korea, the applicant plans to join a digital door lock company in the overseas marketing/sales department. If he is unable to do this he will apply for a job in different companies in the same industry.

   ·The job at the digital door lock company is with a friend of his who had told him that he would like an employee to be able to understand the thoughts and habits of English-speaking buyers and their culture, that he wants someone who has the knowledge and ability to overcome problems that could arise in those cultures and communicate with them in a business area.

   ·The applicant and his wife intend on starting an English business

   ·The applicant considers that a business related qualification from an English speaking country is competitive and advantageous.

   Relevance of course to past study?

   ·The applicant has previously completed a Bachelor in Japanese language. The applicant found it difficult to get a job with his qualification.

   Expected remuneration using qualifications in home country using their qualifications?

   ·The applicant considers that he will be able to earn 2 ½ times the average wage if he obtains the job he wants to.

2. The Tribunal is not satisfied that the applicant has objectively demonstrated the value of the proposed course to his future. The applicant has asserted that the job he has been offered requires a business qualification however has not provided material to substantiate the fact. The Tribunal does not consider, in any case, given the applicant’s information about such a job offer that the current course is of value.

3. The current course of study is Leadership and Management. It is not a business course. The Tribunal is not satisfied that the applicant requires this course to obtain the job he states he has been offered particularly given that the specific role he has said that he will do is one that is in the marketing and sales department.

4. The Tribunal informed the applicant of this concern and he responded; the curriculum he is following has strategies, marketing and plans, that they are directly related to the nature of the work he will. He said that he will be supposed to work with the buyers from the western world and he thinks that they are deeply related. Before he started study he already had a good discussion about what he was going to study with the uncle about his future position.

5. The Tribunal does not accept the assertions of the applicant particularly as there are courses available specifically related to business and marketing that the applicant could have accessed.
   
   

Immigration History

1. The Tribunal has had regard to the applicant’s immigration history. There is no evidence of other visa refusals or cancellations.

2. The Tribunal is troubled by the applicant’s visa history in that he was the dependent on his wife’s visa and then the two of them have swapped roles on the expiry of her visa. The applicant did not enrol in study prior to the expiry of his wife’s visa. The Tribunal considers that this is not the behaviour of a genuine student in Australia to study and progress academically; rather it is the behaviour of someone trying to prolong their stay in Australia using the student visa program.

Any other relevant matters

1. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69:

   ·Any other relevant information provided by the applicant that may be either beneficial or unfavourable to the applicant.

2. Considering the above, individually and collectively 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).

3. 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.

4. As the primary applicant is found not to meet clause 500.212(a), the dependant applicant Ms Choi, does not satisfy cl.500.31. Accordingly, no further enquiry is required with regards to the dependant applicant.

5. 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

6. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

   Amanda Upton
   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.