Myung (Migration)

Myung (Migration) [2018] AATA 4063 (24 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ro Won Myung
CASE NUMBER:  1708069
HOME AFFAIRS REFERENCE(S):           BCC2017/548586
MEMBER:David Barker
DATE:24 September 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 24 September 2018 at 3:58pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – enrolled in multiple unrelated courses – evidence of course completion – significant gaps in study between course enrolments – freelance and casual work in Australia – no family in Australia – strong family ties and financial assets in home country – use of the student visa program to maintain residency in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 9 February 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.
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.
The applicants appeared before the Tribunal on 25 July 2018 to give evidence and present arguments. 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 his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a national of South Korea and is 41 years old.
The Department delegate’s decision record, a copy of which was provided with the review application, states the applicant first arrived in Australia in April 2006 on a Working Holiday visa, which was valid until April 2007. He was granted a further Working Holiday visa and then departed from Australia in April 2008, before returning in July 2008 on a Subclass 572 Student visa. He initially enrolled to study English, Certificate IV in Printing, Diploma of Printing and a Diploma and Advanced Diploma of Management courses. The delegate noted that the applicant then enrolled in a Certificate IV and Diploma of Accounting, followed by a Certificate IV in Ministry, which he then changed to a Certificate IV in Music.
The delegate found that the applicant had enrolled in multiple, seemingly unrelated courses and that there was no course progression in the choice of courses undertaken. The delegate also noted that there were significant gaps in the applicant’s study history and that the applicant had not responded to a request to provide evidence of having completed any of the courses in which he had been enrolled since his arrival in Australia.
On 12 June 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 25 July 2018. That invitation, among other matters, requested the applicant provide an explanation of any gaps his enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by cl.500.212(a) and asked him to provide a written statement addressing this issue by referring to Direction No.69, which was attached.
On 20 June 2018, the Tribunal received documents from the applicant including:
·a written statement, dated 17 June 2018;
·an academic transcript for a Diploma of Printing and Graphic Arts (Digital Production), issued on 14 December 2010;
·evidence of his completion of a Diploma of Management, which ran from August 2011 to January 2012;
·evidence of his completion of an Advanced Diploma of Management, which ran from July 2012 to December 2012;
·evidence of his attendance at a Certificate IV in Ministry course between January 2016 and June 2016;
·a Confirmation of Enrolment (CoE) in a Bachelor of Ministry, running from July 2018 to June 2020;
·a CoE for a Certificate IV in Music course, running from July 2016 and June 2017;
·a CoE for a Diploma of Music course, running from July 2017 and June 2018;
·evidence of his attendance at and completion of a Certificate IV in Music course between July 2016 and June 2017;
·evidence of his attendance at a Diploma of Music Industry course between July 2017 and June 2018;
·a reference letter from Alphacrucis College, dated 15 June 2018, stating the applicant has studied in the Certificate IV in Music and Diploma of Music Industry course and that he intends to follow this up by undertaking a Bachelor of Ministry (in Worship) course; and
·a reference letter from Rev Seong Gyom Kim, dated 15 June 2018.
The written statement provided by the applicant stated:
My name is Ro Won Myung, and I am writing this letter to demonstrate that I am a genuine student who is sincerely desiring to complete the study in Australia and willing to go back to my home country, South Korea to realise my ideal. I will enclose relevant documents to prove the abovementioned with this statement.
The first thing mentioned on the refusal letter from the Immigration department was that I studied various courses which seemed unrelated one another. However, I really must insist that they are closely related to my plan in Korea. As I mentioned on the study plan before, I want to go into the church when I complete my study in ministry. The ministration is involved in many fields of our society. Especially, it is closely connected with publication, music and management. Those are the main studies which I have been undertaken in Australia.
To be more concrete, I have a plan that I publish Christian magazines and story books for children. I am confident with this project as I have decent graphic design skills and enough work experience in publication to make this happen. It was one of the main reasons to study the graphic design course in Australia. In case of music, it was my long-term hobby and wanted to learn more deeply about Christian music. I used to play the guitar in a church band in Korea, and now I am an active member of choir in my church. Many of Korean ministers do study music to improve their pastoral work Finally, I studied the management because it is a great help for ministers to have good management skills when organising the church.
The refusal letter from the Immigration also mentioned that there were gaps between the courses, but it was not my intention to do so. I had a graduation visa after the completion of the management courses for one and half years. During the period, I gained some work experience in Australia instead of continuing the study. Moreover, Crown Institute of Business and Technology which I attended from January to December 2015 did not release me when I tried to transfer to another school right after. I requested the school to provide me a release letter so many times, but it took almost 6 months to make them to do it.
When I applied for the recent student visa, I did not know I have to prove that I have strong ties in Korea. If I knew, I would have informed you straight away that I have a long-term relationship with a publishing company in Korea. The company name is Hackers Education Group [Address provided - Seoul, South Korea}, and I have been working as a freelancer graphic designer for the company since February 2014. As the work can be done with my computers at home, I took some jobs from them mostly during the school holiday periods. The company has been satisfied with my works, so I am pretty sure that they would be cooperative with me when I try to publish my own books with them in Korea. And most importantly, all my family is living in Korea, and I am staying here as a single. I miss my family and friends in Korea so much. I do not have any reason to stay in Australia permanently.
I understand that the Immigration department could have a concern that I was utilising the student visa program as I have been staying in Australia for a long time. However, I appeal to you that it was due to circumstances as abovementioned and I have been a sincere student whilst studying in Australia. I have a clear vision to do after the study, and it is like fastening the last button on my plan. Please allow me to finish my study as I planned. After the course, I promise you that I will go back to my country and fulfil the role destiny has chosen for me.
At the hearing on 25 July 2018 the applicant provided the Tribunal with a copy of a financial document showing funds held in accounts.
The hearing
The Tribunal raised with the applicant that the matter before it is whether he meets the requirements of cl.500.212(a). It outlined the section, the relevance of Direction No.69 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.
In relation to his current studies, the applicant gave evidence he is undertaking a Bachelor of Ministry. He said he grew up in a Christian family and that he has always wanted to do good works. He said as he is getting older he does not want to delay further his aspiration to work in ministry.
In relation to the gaps in his study history, the applicant said that as far as he could recall, any gaps were not that long, with the longest not extending beyond six months. He said there was a longer period whilst he was on a Subclass 485 (Temporary Graduate Work) visa, in which he looked for relevant work experience without success in Melbourne. He said he relocated to Sydney and around that time a friend in South Korea gave him some freelance work he could do from Australia. He said this was with the Hackers Education Group and involved graphic design.
As to his employment history whilst he has been in Australia, the applicant said whilst he was on his initial Working Holiday visa he worked as a housekeeping room attendant at the YMCA in Perth for around six months in 2007 and also worked in a similar role, at a hotel in Sydney, for around four months. He said that since he has been on student visas he has not had a job in Australia, as he preferred to focus on his studies. He said he has done freelance work with the Hackers Language Research Institute since 2014.
The applicant said he meets his education and living expenses from income from this freelance work, which he estimated provides him $3,000 to $4,000 per month, and from financial assets he has in South Korea. He said he has rental income from an apartment he owns in South Korea and also other funds invested in South Korean financial institutions.
The applicant said he has no relatives in Australia and that he lives in share accommodation in Quakers Hill, NSW. He said he is an active participant in a Korean church community in Castle Hill, NSW. He said this is a small, supportive community of around 15 people. The applicant said he is halfway through four years of ministry study and that when he has completed this study he will return to South Korea, where his mother and brother run a Christian church. He said his mother is a pastor and his brother also does pastoral work. He said his decision to study ministry in Australia was also influenced by his interest in ministry music and the reputation of the Hillsong Church has for its contemporary Christian music. He said he wants to take this Hillsong approach, on a considerably smaller scale, back to South Korea. He said he will return to his home country because he also needs to marry.
As to trips he has made away from Australia, the applicant said he has travelled to Thailand as part of his ministry studies and also visited his home country during breaks in his studies.
The applicant said he has fulfilled his military commitments in South Korea and has no fears about returning because of civil or political unrest there.
Particulars of information put to the applicant pursuant to s.359AA of the Act
The Tribunal put particulars of information from a recent check of the Provider Registration and International Student Management System (PRISMS) and his movement records to the applicant pursuant to s.359AA of the Act after first explaining to him this information would, subject to his comment and response, provide the reason, or part of the reason, for affirming the decision under review. The Tribunal explained to the applicant that he could request time to consider his response and that the Tribunal would consider any such request.
The particulars of the information put to the applicant were that the PRISMS records indicate:
·He completed a Diploma of Printing and Graphic Arts on 31 December 2010 and did not commence his next course, a Diploma of Management, until 1 August 2011, which means there was a gap of seven months in which he did not study;
·He completed a Diploma of Management on 29 January 2012 and did not commence his next course, an Advanced Diploma of Management, until 23 July 2012, which means there was a gap of nearly six months in which he did not study;
·He completed an Advanced Diploma of Management on 21 December 2012 and did not commence another course, a Certificate IV in Accounting, until 12 January 2015, this means there was a gap of two years in which he did not study;
·He was on a Subclass 485 (Temporary Graduate Work) visa from May 2013 to November 2014, although there was no restriction on his study rights whilst he was on that sort of visa; and
·He completed a Certificate IV in Accounting on 4 December 2015 and did not commence another course, a Certificate IV in Music, until 25 July 2016, which means there was a gap of nearly seven months in which he did not study;
The Tribunal explained to the applicant that this information was relevant because it indicates there have been a number of periods of time, since June 2008, in which he chose not to study, or in which he was not enrolled in a course. The Tribunal explained that this gives rise to the concern he has had reasons, other than study and progressing academically, for maintaining his residency in Australia.
The Tribunal put to the applicant that his movement records indicate that since he first came to Australia in April 2006, he has only been offshore for 236 days in total, whereas during that period he has spent over 4,200 days onshore in Australia. The Tribunal explained that this information is relevant, because his lack of time offshore since his arrival in Australia in 2006 gives rise to the concern that he does not have the sort of ties with his home country which would be indicative of a person with a strong incentive to return there.
The Tribunal explained that if it relies on some or all of this information it may find that the applicant is not a genuine student and that he is using student visas to maintain his residency in Australia for other reasons, and that if the Tribunal finds he does not intend to genuinely remain in Australia temporarily, it will affirm the decision to refuse the Student visa.
The applicant requested 14 days in which to consider and respond to this information and the Tribunal consented to this request.
On 8 August 2018 the Tribunal received the applicants response which included:
·a personal statement;
·a family relationship certificate (translated);
·a Certificate of recognition of Church Establishment (translated);
·a Certificate of Unique Number organisation(translated);
·a document titled Confirmation of fact, dated 19 June 2018, confirming the applicant has performed assigned duties for Hackers Language Research Institute since 1 April 2014 (translated); and
·a document titled Income Amount Records (translated).
CONSIDERATION OF CLAIMS AND EVIDENCE
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 applicant intends genuinely to stay in Australia temporarily.
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?
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.
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.
Having considered the applicant’s claims against all the factors specified in Direction No.69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.
The delegate determined the applicant did not satisfy the genuine temporary entrant criteria due to the length of time he has spent in Australia on temporary visas, the relative lack of time he has spent offshore during that period and the unrelated nature of the courses the applicant has enrolled in, without apparent academic progression or clear long term vocational plans for what he would do upon his return to South Korea.

On the basis of the evidence that is now available I accept the applicant has completed the following courses since 2009: Diploma of Printing and Graphic Arts (Digital Production) – 2010, Diploma of Management – 2011/2012, Advanced Diploma of Management – 2012, Certificate IV in Ministry – 2016, Certificate IV in Music – 2016/2017 and a Diploma of Music – 2017/2018. I am also satisfied the applicant is currently enrolled in a Bachelor of Ministry, which is due to finish in June 2020.
On the basis of the evidence that is now available I also accept the applicant’s step mother established the Bethel Church in Korea in 2001 and that the applicant has financial assets in Korea, as of July 2018, amounting to approximately $150,000.
In his initial written statement and the second personal statement he provided in response to the particulars of information put to him pursuant to s.359AA of the Act, the applicant made reference to making immature decisions in the past and has emphasised the path he has now established to acquire a ministry education. He explains that he returned to Korea for a period of time after completing a Diploma of Printing and Graphic Arts in December 2010, resisted pressure from his family to remain there and instead returned to Australia despite feeling unclear about what he should do. He contends it took him around seven months to decide what course to enrol in and that he eventually decided he would benefit from studying a management course. He did not elaborate as to why he made this choice beyond the claim that he thought it could assist with future business ventures. The applicant explained that his uncertainty as to whether he should return to Korea and what he should do with his life continued after he completed the management course in January 2012 and so he travelled around Victoria for around four months on a tourist visa, before deciding a further Advanced Diploma of Management would assist him working towards a goal of publishing Christian magazines.
In his oral evidence and written statements, the applicant did not address the issue as to why he undertook no formal studies whilst he was on a Subclass 485 visa between May 2013 and November 2014. The applicant has not provided evidence that he successfully completed the Certificate IV in Accounting, which was due to run from January 2015 to December 2015, or the Diploma of Accounting which was due to follow on from the Certificate course, and has not addressed this issue in his oral evidence or written statements, beyond stating that it took him some time to transfer to an another course, namely the Certificate IV in Ministry, which he commenced in January 2016.
The applicant’s aforementioned explanation for his study history, in part made in response to the particulars of the information put to him pursuant s.359AA, acknowledges but somewhat minimises the gaps in his studies and courses that he commenced, but failed to complete. I am satisfied that at all times the applicant has been a lawful non-citizen in Australia, on working holiday, tourist, student or bridging visas. However, considering the applicant’s circumstances as a whole, I am of the view that the applicant’s migration history is indicative of a person who has developed a strong connection to Australia. I accept the applicant has taken his time considering his vocational direction and course choices, and I consider this to be indicative of his feeling Australia is a place he is comfortable in, whether that be for study, travel or contemplation. I am not, however, convinced his migration history is indicative of a person with a genuine intention to only remain in Australia temporarily. In my view it is rather reflective of a person who has found Australia to be a suitable place to spend a very considerable period of time.
The applicant’s explanation for his course choices are not in my view particularly persuasive. I accept he has applied skills acquired from his studies in printing and graphic arts, but I am unconvinced the management and accounting courses he subsequently enrolled in were required in order for him to seek work with these graphic art skills, or that they reflect a clear vocational plan the applicant has established for himself. I accept his choice to undertake ministry study reflects his religious background and that there is a tradition for this sort of vocation in his family. I am, however, unconvinced that the extra expense involved in undertaking such study in Australia, rather than his home country, thereby extending his time in Australia on temporary visas to over 14 years, can be adequately explained by his proximity to the Hillsong Church, which albeit having a reputation for music ministry, is not the Australian church which the applicant identifies as his primary church community.
The applicant does not appear to have relied on income earned from causal work in Australian workplaces since he commenced freelance work for a Korean based publishing business. It is, however, apparent that this work does not necessarily provide the applicant with a clear incentive to return to his home country, as he is manifestly able to submit work and earn an income of between $3,000 and $4,000 a month whilst residing in Australia.
As to the applicant’s links to his home country, I accept he has strong family ties and financial assets in Korea. I accept he has no military service requirements, or concerns about the civil or political situation in Korea which may provide him with a disincentive to return there. I accept he has significant financial assets there, though it is not clear whether these were all developed before he came to Australia or whether he has developed them in part from his freelance graphic design work. Notwithstanding this, I accept the applicant has ties to Korea which are indicative of a person who may return there at some stage. However, notwithstanding these considerations, in the particular circumstances of this case, the other concerns held by the Tribunal outweigh these findings.
I acknowledge the applicant indicates he would like to marry, but I have not placed weight on this issue as he raised this as an aspirational goal and has not claimed he has a prospective partner in his home country.
Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction No.69, as detailed above, the Tribunal is not satisfied, having regard to the evidence advanced and considered cumulatively above, that the applicant intends genuinely to stay in Australia temporarily. Therefore, he does not meet cl.500.212(a).
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
David Barker
Member

[2018] AATA 4063

24 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction