Lee (Migration)

[2018] AATA 860

Lee (Migration) [2018] AATA 860 (13 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Juyeon Lee

CASE NUMBER:  1607797

DIBP REFERENCE(S):  BCC2015/2520077

MEMBER:Stephen Conwell

DATE:13 February 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 13 February 2018 at 3:44pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Unsatisfactory study history – Lack of academic progress – Further course of limited value to future – Never studied at a higher education course

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2 cl 572.223

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 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 to the Department of Immigration for the visa on 31 August 2015. The delegate decided to refuse to grant the visa on 12 May 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of sub-classes: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the sub-class 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” criterion which applies in each sub-class of the student visa.

4. The applicants appeared before the Tribunal on 1 February 2018 to give evidence and present arguments. The Tribunal Hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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;

   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 sub-classes with the exception of sub-class 580;  and

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

   Subclass 580

7. At Hearing, the applicant was informed that the Subclass 580 visa is for student guardians, where it is a requirement that the person will accompany a relative to or in Australia who is a student, and in order to make a valid application for a Subclass 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1) and on the evidence it had not been used; therefore it appeared the application was not a valid application for a Subclass 580 visa.

8. The applicant confirmed that Form 157G was not used and a Subclass 580 visa was not sought, and was informed that the application appeared not to be a valid application for that sub-class in any event, and the Tribunal so finds.

9. For the remainder of this decision, a reference to sub-classes or all sub-classes of the Class TU visa does not include a reference to Subclass 580.

10. Having regard to the applicant’s current proposed course of study, the relevant sub-class in this case is Subclass 572.

    Genuine Temporary Entrant

11. A major issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)      The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that 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)     …

12. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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 to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

14. At Hearing, the applicant was:

    a.given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;

    b.informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;

    c.informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.given an overview of the considerations laid out in Direction No.53 as summarised above;

    e.informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the Tribunal Hearing;

    f.informed that all sub-classes of the Class TU visa have equivalent ‘genuineness’ criteria, and that if the criterion was not met, it would likely not be met for each of those sub-classes.

15. The Tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Background

16. At Hearing, the applicant confirmed that:

    a.she first arrived in Australia on a Working Holiday visa (sub-class 417) in November 2008 and left Australia 10 months later, in September 2009;

    b.a few months later, in December 2009, she returned to Australia as the holder of a sub-class 976 Electronic Travel Authority.  Shortly after her arrival, on 22 December 2009, the applicant was granted a sub-class 573 visa valid to 13 September 2015.

    Study History

17. At Hearing the applicant confirmed that her intention, on being granted a sub-class 573 (Higher Education) visa in December 2009 was to pursue business studies, as this is highly regarded in South Korea and she had been advised that tertiary studies in Australia were not as competitive as in South Korea.

18. The applicant enrolled in English studies but found that she wasn’t progressing well enough for her to confidently study business in English.  At that point she changed migration agents and on the advice of her (then) new agents, she changed her course from business to the VET sector. 

19. The applicant stated that she was not made aware of the consequences to her immigration history of her change of course from Higher Education to the VET sector. The Tribunal notes that it is the responsibility of a holder of a Student visa to continue to satisfy all visa criteria during the term of the visa. However the Tribunal can accept that she was not aware of this technical breach at the time.

20. According to the delegate’s decision, the applicant applied for a Student (Class TU sub-class 572) on 31 August 2015. At time of application, she was enrolled to undertake the following courses: 

    a.Diploma of Hospitality

    b.Diploma of Business

    c.Advanced Diploma of Hospitality

21. The delegate found upon examination of the Provider Registration and International Student Management System (PRISMS) that the applicant had been previously enrolled in the following course(s): 

    a General English (Beginner to Advanced) 

    d.Certificate III in Business

    e.Certificate IV in Marketing

    f.Cambridge English Language Course

    g.Diploma of Management

    h.General Purpose English

    i.Bachelor of Business

    j.English for General Purposes

    k.Certificate IV in Hospitality (Patisserie) 

    l.Certificate III in Hospitality (Patisserie)

    m.Diploma of Hospitality

22. The delegate concluded that in the six years the applicant had been in Australia at the time of the Department’s decision, she had only completed the following courses while holding the previous student visa:

    a.General English (Beginner to Advanced)

    b.Cambridge English Language Course

    c.General Purpose English

    d.English for General Purposes

    e.Certificate III in Hospitality (Patisserie)

    f.Certificate IV in Hospitality (Patisserie)

23. At Hearing the applicant confirmed, through her oral evidence and by completing the GTE questionnaire, that she had also completed a Diploma of Hospitality in 2016 and a Diploma of Business in 2017.

24. The applicant was asked to explain her unsatisfactory study history and her lack of academic progress. The applicant’s oral evidence was that she had struggled to learn English in her first few years in Australia and had therefore focussed on her language acquisition by enrolling in several English courses. The Tribunal accepts that the applicant did need to improve her grasp of English, however it finds that over a period of 7 years the completion of several short-term English courses, along with the Diploma of Hospitality (incorporating Certificates III and IV) and the Diploma of Business, is not a reasonable study completion rate of a genuine student intending to progress academically.

    Applicant’s Future plan

25. At Hearing the applicant’s gave evidence that her career plan is to return to South Korea and seek work in a café/bakery chain of stores, called “Paris Baguette”.  Her plan is to gain retail experience there in order to open her own chain of café/bakeries in South Korea. The applicant was unable to imbue this plan with further details on the set-up costs or business plans of this venture, suggesting to the Tribunal that little thought has gone into its practical implementation. The Tribunal is not persuaded that the applicant’s stated future plan of a patisserie store is a well-developed or genuinely held career or business goal. As a consequence the Tribunal finds the applicant’s stated plan to be vague and inchoate.

26. On the evidence, the applicant’s claimed career aspirations appear tailored to fit with the applicant’s current, or then current, course selection in Australia.  That is not as it should be.  If the applicant has career aspirations that are claimed to lead out of Australia back to the home country, the courses selected should seek to serve those purposes, and not the other way around. 

27. The Tribunal observed that by the end of 2017 the applicant had completed a Diploma of Hospitality and a Diploma of Business. She is presently enrolled in an Advanced Diploma of Business which is to finish in August 2018. However the Tribunal finds that by late 2017 the applicant had both practical hospitality skills as well as business and management knowledge and had acquired enough skills to leave Australia to implement her stated business plan.

28. The applicant claims that it is and always has been her proposition that she wished to acquire skills, knowledge and qualifications in Australia that she would bring offshore and put to use. As suggested, the Tribunal considers that objectively the applicant had more than sufficient skills, knowledge and qualifications by the end of 2017 to confidently implement her plan to open a patisserie shop or chain of shops in South Korea or elsewhere.

29. The applicant’s diploma in hospitality prepared her to run and operate a bakery or patisserie and the like.  Her business diploma added business management skills which could be used in a hospitality context.  Further, her diploma in hospitality encompassed specific vocational training in patisserie at the Certificate course level. The Tribunal suggested to the applicant that at the end of 2017 she had strong personal incentives to return to South Korea and ample skill, knowledge and qualifications for the future plan that she claimed for herself there.

30. The applicant’s submission was that she simply wished to complete her current studies in the Advanced Diploma of Business and then return home. The Tribunal is not persuaded by the applicant’s response that by enrolling in this Advanced Diploma course she would gain further practical knowledge in business leadership and management. The Tribunal therefore places little weight on this response.

31. The Tribunal finds this Advanced Diploma has limited incremental additional value to the applicant’s future plan when placed next to the hospitality and business qualifications she already has. As a consequence, the Tribunal finds that by the end of 2017, the applicant had every personal and professional reason to cease her residence in Australia.  Her conduct in proposing further stay to study a course of very limited value to her future suggests that she will not yield to the many incentives she has to leave Australia, but rather intends to stay on in Australia.

32. It is the applicant’s claim that she has always intended to stay in Australia temporarily and she continues to have that intention.  If that is and was so, the Tribunal finds the applicant would have departed Australia to reunite with her family and to set in motion her plan to establish a patisserie business in South Korea, if not by mid-2016, (after completing the Diploma of Hospitality), then certainly by 2017 upon completing the Diploma of Business. Yet the applicant did not depart either in 2016 nor in 2017; instead she proposed further stay and study in Australia.

    Value of Course to the Applicant’s Future

33. The Tribunal questioned the applicant on the value of her latest course – Advanced Diploma of Business – to her stated future plan. It was put to her that this was a generic business management course offering little value to someone who already has diplomas in Hospitality and Business. The Tribunal was not persuaded by the applicant’s response that by enrolling in this course she would gain further practical knowledge in business leadership and management.

34. The Tribunal considers that the applicant’s diplomas in Hospitality and Business provide her with sufficient skills to handle the practical and business aspects of a patisserie shop.

35. Given the timing of her latest enrolment and the nature of the course, the Tribunal does not accept this current course of study is of appreciable additional value to the applicant’s stated future plan. The Tribunal finds that the applicant enrolled in the Advanced Diploma course a day after completing the Diploma of Business, as a means of supporting the grant of yet a further student visa for the purposes of prolonging the applicant’s already long stay in Australia. The Tribunal finds this explanation to be more persuasive than the reason put forward by the applicant - that the Advance Diploma course held distinct value to complement the business and hospitality diplomas she had already completed

    Circumstances in Home Country and Potential Circumstances in Australia

36. The applicant gave evidence that:

    c.she has held several part-time jobs during her time in Australia, working mainly in Korean restaurants;

    d.whilst in Australia she resides in a share house with other Korean students;

    e.she has two other siblings – a brother and sister; they and their parents reside in South Korea; 

    f.she has no husband, de facto or boyfriend in Australia;

    g.her current plan is to finish her current studies in Advanced Diploma of Business and then return to South Korea.

37. The Tribunal accepts that the applicant has familial incentives to return to South Korea, however the Tribunal finds that these incentives are unlikely to be strong enough to persuade the applicant to leave Australia; if they had been strong enough, they would have persuaded the applicant to return to South Korea by 2017 at the latest when she attained her Diploma of Business qualification.

38. The applicant confirmed that there was no adverse pertaining to the following factors indicated by Direction 53 that would prevent the applicant from returning to South Korea and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, economic or political circumstances in the home country, civil unrest in the home country, circumstances in the home country relative to Australia or any other country, the applicant’s circumstances in the home country relative to others in that country.

    Applicant’s immigration history

39. In the 8 years that she has been in Australia the applicant has never studied at a higher education level despite arriving in Australia on a sub-class 573 (Higher Education visa). Instead the applicant has enrolled in courses entirely in the VET sector. The Tribunal notes that it is the responsibility of a holder of a Student visa to continue to satisfy all visa criteria during the term of the visa.

40. By not ever studying at the Higher Education level as envisaged by her sub-class 573 visa, the applicant has been in breach of visa condition 8516 during the term of that visa. However the Tribunal can accept that she was not aware of this technical breach at the time.

    Findings

41. Taking consideration of all the factors in Direction 53 overall, the applicant had every personal and business reason to cease her residence in Australia by end of 2017. 

42. Her conduct in enrolling in an Advanced Diploma of Business which the Tribunal finds to be superfluous to the applicant’s stated future plan, suggests that she will not yield to the incentives she has to leave Australia, including the presence of her parents and siblings parents in South Korea; instead her conduct suggests that she intends to stay on in Australia.

43. The above factors cumulatively indicate the applicant is not a genuine student. Rather, the  applicant appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and she does not genuinely intend to stay in Australia temporarily.

1. Overall, given lack of academic progress, her study history, her potential circumstances in Australia, her immigration history and the lack of value of the courses to her future, the Tribunal find that the applicant is using the Student visa program to circumvent permanent migration programs and the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that she intends to stay in Australia temporarily.

2. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

3. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other sub-classes within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these sub-classes. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that sub-class. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

   DECISION

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

   Stephen Conwell
   Member