LEE (Migration)

[2019] AATA 6234

LEE (Migration) [2019] AATA 6234 (16 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms HYE-WON LEE

CASE NUMBER:  1818660

DIBP REFERENCE(S):  BCC2018/1978682

MEMBER:Margaret Forrest

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 October 2019 at 11:13 am (QLD time)

DATE OF WRITTEN RECORD:                29 October 2019

PLACE OF DECISION:  Brisbane

DECISION:The tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine student – strong incentives to remain in Australia – partner in Australia – earning capacity – family in home country not strong incentive to return to home country – future plans problematic – student visa used to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. At the hearing on 16 October 2019 the tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

2. The tribunal makes the following decision.  The tribunal affirms the decision not to grant the applicant a student temporary class TU visa. 

3. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 June 2018 to refuse to grant the applicant a student temporary class TU visa under section 65 of the Migration Act 1958 (the Act).

4. The applicant applied for the visa on 7 May 2018.  At the time of the 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.

5. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was not satisfied that the applicant was a genuine temporary entrant.

6. The applicant appeared before the tribunal on 16 October 2019 to give evidence and present arguments.  The tribunal also received oral evidence from the applicant’s partner Mr Sigit.  The tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.  The applicant was assisted in relation to the review by her registered migration agent.

7. For the following reasons the tribunal has concluded that the decision under review should be affirmed. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a subclass 500 student visa are set out in part 500 of schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 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.

9. The issue in the present case is whether the applicant is a genuine temporary entrant. The criteria for whether an applicant is a genuine applicant for entry and stay as a student is contained in clause 500.212.

   Genuine applicant for entry and stay as a student (cl.500.212)

10. 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.

11. In considering whether the applicant satisfies clause 500.212(a), the tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for student visa and student visa applications’ made under section 499 of the Act.

12. 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. In relation to the applicant’s circumstances in their home country, the applicant told the tribunal she could have taken the courses she is currently taking in Korea, but she wanted to improve her English, confirm what her English level was and to deepen her English level.

15. The applicant told the tribunal that her parents and her brother continue to reside in South Korea and that she has no property in South Korea.  The applicant said that she maintains daily contact with her family through messages.  The applicant told the tribunal that she arrived in Australia on 12 May 2017 and confirmed that she has not been back home to visit her family since that time.

16. The applicant told the tribunal that military service or compulsory military service in South Korea only applies to males, so she is not concerned about military service commitments in South Korea and she is also not concerned about political or civil unrest in South Korea.

17. Taking into account the fact that the applicant has been in Australia since May 2017, has not returned to visit her family and has managed to maintain regular contact with them electronically, the tribunal finds that the presence of the applicant’s family in South Korea does not constitute a strong incentive for the applicant to return to South Korea.

18. In relation to the applicant’s potential circumstances in Australia the applicant told the tribunal that she has a partner in Australia, Mr Sigit, and their relationship commenced in August 2019, that is two months prior to the tribunal hearing today.  The applicant told the tribunal that her partner is Indonesian and he is not an Australian citizen.  Mr Sigit is currently on a working holiday visa that expires in April 2020.  The applicant told the tribunal that Mr Sigit’s plan is to apply for a second working holiday visa, so that they can both stay in Australia until she finishes her study in November 2020.

19. When the applicant submitted her student visa application, she was proposing to study the following courses:

    a.Certificate II in skills for work and vocational pathways;

    b.Certificate II in Retail Services; and

    c.Certificate III in Retail

20. The applicant confirmed that since arriving in Australia she has completed the following courses:

    a.Certificate II in skills for work and vocational pathways.

21. The applicant confirmed that she is currently completing a Certificate II in Retail Services and she is enrolled in a Certificate III in Retail that is scheduled to conclude on 13 November 2020.  The applicant said that she plans to leave Australia after she finishes her course in November 2020.

22. Taking into account the fact that the applicant’s partner presently resides in Australia and that he intends to reside in Australia until at least November 2020, the tribunal finds that this is a significant incentive for the applicant to remain in Australia.

23. The applicant told the tribunal that she previously completed her degree in social welfare in Korea and that was an Associate Degree, which is the equivalent of an Associate Diploma.  When asked why she had swapped the focus of her studies from social welfare to retail the applicant told the tribunal that she intended to open her own business, which would be a cafe, and she said she needs to know how to run her own business.

24. The applicant arrived in Australia on a working holiday visa and worked in Australia on that visa for a period of one year before she submitted her current application for a student visa.  When asked why the applicant decided to study in Australia after she had arrived on a working holiday visa the applicant told the tribunal that she was impressed with Australia's cafe culture and she decided she wanted to open her own business in Indonesia.  The applicant also told the tribunal that she was not so young and she needed to think about her life and future seriously.

25. The applicant also told the tribunal that she decided to study at her current course provider because as far as she knew it was the biggest and largest in Brisbane and she also had one friend studying at this college who had recommended the college.

26. In relation to the value of the course to the applicant’s future, the tribunal asked the applicant about her future plans.  The applicant had told the Department of Immigration that her plan was to become a social enterprise business manager by opening a cafe in Vietnam.  The applicant told the tribunal today that she met her partner in August 2019 and that was when her plan became more detailed and she now plans to open a cafe in Indonesia with her partner after November 2020 when they leave Australia.  The applicant submitted a two page business plan for this business to the tribunal and the tribunal has had regard to this document.

27. When asked why the applicant needed to study the course that she is studying in order to open her own business in Indonesia, the applicant said that she needed to learn how a business is controlled, and because she is going to own her business she will have to be able to manage it.

28. The applicant told the tribunal today that one of the reasons she decided to study in Australia was that she wanted to improve her English skills and test her English level.  When asked why the applicant needed English skills to be able to open a cafe in Indonesia the applicant told the tribunal that a lot of the population of Indonesia speak English.  The applicant also told the tribunal that it will be primarily necessary for her to learn Indonesian and although she has not started studying Indonesian she plans to commence some courses soon.

29. When asked what connection the proposed cafe will have to social welfare, the applicant said that she also plans to open a hotel and she plans that people will be able to stay in the hotel for free if they undertake volunteer jobs; she will work in the role of a project manager at this hotel.  The applicant said that this plan is not included in any of the documents she has submitted to the tribunal because it is something she is not planning to do until about five years has passed.

30. Mr Sigit also told the tribunal that he had convinced the applicant to start her cafe in Indonesia and that he needs the applicant and the knowledge that she has in order for them to start the business.  He also said that he is currently working as a strategic planner and that he anticipates the income from the business will grow in the future.

31. The tribunal does not accept the applicant’s evidence in relation to her future plans in light of:

    a.the fact that they only crystallised in August 2019 when the applicant met her partner; and

    b.the fact that one of the primary reasons for the applicant studying in Australia is to improve her English and her plan is to open a cafe in Indonesia where it will primarily be necessary for her to speak Indonesian. 

32. The tribunal has also taken into account the fact that the applicant’s previous study was in social welfare and the business that she plans to open will not have a social welfare component until a period of at least five years has passed.

33. The applicant told the tribunal that she is presently working as a blueberry picker in Australia and that last year she earned approximately AU$45,000.  The applicant also told the tribunal that in the first year of her business she will invest money and does not expect to make a profit, but in the second year she expects to make approximately AU$40,000, and this is based on information from a friend of her partner who owns a cafe in Indonesia.  Both Mr Sigit and the applicant told the tribunal that they expect the profit from the business to grow in the long term.

34. On the basis of this evidence the tribunal finds that the applicant’s capacity to earn income in Australian dollars presents a significant incentive for the applicant to remain in Australia.  The tribunal has taken into account the fact that the applicant is presently earning more than she would in both the first and second years of starting her own business.  The tribunal has also taken into account the fact that if the applicant was granted a student visa, the hours she is permitted to work would be reduced.

35. In relation to the applicant’s immigration history the applicant arrived in Australia on a working holiday visa and upon expiration of that visa applied or submitted her current student visa application.  The applicant told the tribunal that she arrived in Australia on a working holiday visa because it was the last opportunity for her to utilise such a visa.

36. The tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.  The tribunal has found that the presence of the applicant’s family in South Korea does not constitute a strong incentive for the applicant to return to South Korea.  The tribunal has also found that the presence of the applicant’s partner in Australia is a strong incentive for the applicant to remain in Australia.

37. The tribunal has also found that it does not accept the applicant’s evidence in relation to her future plans and that the applicant’s economic circumstances in Australia, specifically her capacity to earn Australian dollars in ordinary employment, presents a significant incentive for the applicant to remain in Australia.  On the basis of these findings, on balance, the tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence.

38. The tribunal has also taken into account that the applicant has been in Australia for a period of two years and is seeking to extend her stay in Australia until at least November 2020.

39. On the basis of the evidence that I have described, the tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet clause 500.212(a).

    Conclusion on cl.500.212

40. Accordingly, the tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student as required by clause 500.212.

41. Given these 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

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

    Margaret Forrest
    Member