PARK (Migration)

[2018] AATA 3767

PARK (Migration) [2018] AATA 3767 (31 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  JOON SANG PARK
YOON JIN OH

CASE NUMBER:  1616792

DIBP REFERENCE(S):  BCC2016/2012672

MEMBER:P. Wood

DATE:31 July 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 31 July 2018 at 5:30pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine temporary entrant – Maintained extensive primary residency – Well established in Australia – Daughter in Australia – Strong employment history and remuneration – Managed overseas relationships – Plan to work as a missionary – Enrolment dates – No evidence of degree completion – Decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection 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 10 June 2016. The delegate decided to refuse to grant the visas on 28 September 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visas because the first named applicant (“the applicant”) did not satisfy the requirements of cl. 572.223(1)(a) of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal in Brisbane, Queensland 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 applicant was represented in relation to the review by his 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. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

8. The 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)     …

9. 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.

10. 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.

11. The Tribunal has had regard to the departmental file in this matter: including the applicant’s curriculum vitae, typed statement dated 14 June 2016, letter of employment (also dated 14 June 2016), bank statements and the original application form.

12. The Tribunal has also had regard to a written submission from the applicant’s representative dated 20 March 2018. The Tribunal has also had regard to the questionnaire that the applicant completed on the day of his hearing and the evidence of academic progression provided to the Tribunal (and comprising folios 32-37 of the Tribunal file).

13. The applicant first arrived in Australia on a student visa on 30 January 1997. He initially studied English language courses, hospitality management and then enrolled in a hotel management course at Griffith University, Queensland. He withdrew from Griffith University after less than six months of study. After more than 16 years of not studying, the applicant returned to study in 2016 and this is outlined further below.

14. Following the applicant’s withdrawal from Griffith University, he obtained a subclass 457 sponsored visa and worked here in Australia. The applicant told the Tribunal that he initially worked in Australia for a Korean tour company and then later for a separate manufacturing company. In between these two employers, he returned to Korea for several months. The applicant has also left Australia for brief periods at other times and the Tribunal put the applicant’s movement records to him formally in accordance with the procedure set out in section 359AA (see below). Overall however, for the most part, it is true to say that the applicant has maintained his primary residence in Australia for more than 20 years.

15. The applicant told the Tribunal that after his 457 sponsorships his wife began studying a nursing course and that he then became a dependent on her (then) student visa. The applicant told the Tribunal that his wife has worked as a registered nurse at the Gold Coast Private Hospital for approximately 4 years. The applicant’s wife is now seeking to become a dependent upon the applicant’s student visa.

16. The Tribunal questioned the applicant about his employment and income in Korea before coming to Australia. Specifically, the Tribunal discussed with the applicant his previous employment in the export department of the Hyundai Motors Corporation and the salary he received in that role.

17. The applicant told the Tribunal that he is now working twenty hours per week as a supervisor for a cleaning company. He told the Tribunal that he has worked in this capacity for 2-3 years and earns ‘about $30’ AUD per hour. Following the applicant’s evidence in this regard, the Tribunal asked the applicant to provide the Tribunal with copies of his taxation assessments for the last two financial years. On 4 April 2018, the applicant’s solicitor provided notice of assessments relating to both the applicant and his wife. The Tribunal has had regard to this.

18. The applicant’s 18 year-old daughter is an Australian citizen and is currently studying film production at Griffith University. She is the applicant’s only child and lives in Queensland with the applicant and his wife.

19. The applicant told the Tribunal that he has been attending church in Australia ‘from the moment when I came to Australia’. The written submission from the applicant’s lawyers dated 20 March 2018 states that the applicant has attended the Vision Church of Korean Presbyterian since 2005. In his oral evidence to the Tribunal however the applicant said that he has always attended the same church since he first arrived in Australia in 1997. In any event, the Tribunal accepts the applicant to be a religious person and well-established in his local church community.

20. The applicant told the Tribunal that he is also a member of his local golf club in Queensland and enjoys getting together with others regularly to play golf.

21. It follows that the Tribunal is of the view that the applicant is well-established, with significant ties to Australia.

22. The applicant appeared before the Tribunal enrolled in a Diploma of Christian Ministry and Theology course conducted by Hope of the Gold Coast Ltd, trading as Hope College. The applicant provided a confirmation of enrolment certificate with course dates from 11 July 2016 to 29 June 2018. The applicant told the Tribunal that his wife has already completed the same course.

23. Considering the value of the course to the applicant’s future, the Tribunal acknowledges that completion of this course would assist the applicant to work in the christian ministry and theology fields.

24. The applicant told the Tribunal that he had not ruled out pursuing bachelor degree level study in the same field at some time in the future. He told the Tribunal that he considered that a bachelor degree would provide more opportunities than the diploma level course.

25. The Tribunal questioned the applicant about his plans for the future. The applicant told the Tribunal that he and his wife intend to depart Australia to work as missionaries in Mongolia. He told the Tribunal he and his wife would depart following his completion of the before mentioned Diploma of Christian Ministry and Theology course.

26. The Tribunal questioned the applicant in relation what preparation he had undertaken in anticipation of his forthcoming travel to Mongolia. The applicant could only say that he is in touch with another missionary overseas and that he believed that his church had collected enough money from the collections plate to fund him and his wife overseas. The Tribunal was struck by the vagueness of the applicant’s account of his preparation for his supposed imminent departure. The Tribunal considered that the applicant’s response indicated little, if any, previous meaningful consideration of his claimed plan.

27. The Tribunal questioned the applicant in relation to his ties to Korea. He told the Tribunal that his parents and siblings continue to live in Korea. He told the Tribunal that he has good relationships with his family overseas and that he has maintained these relationships from afar by ensuring regular communications. The Tribunal does not consider the applicant’s ties overseas to be a significant incentive to leave Australia.

28. The applicant told the Tribunal that he applied for permanent residency in Australia more than ten years ago, but did not have enough points at the time. He told the Tribunal that he does not still have a desire to acquire Australian permanent residency.

29. It is common knowledge that there is an economic disparity between the applicant’s home country and Australia. Examination of the applicant’s taxation records indicate that the applicant has a strong history of employment and remuneration in Australia, which the Tribunal considers is an incentive for him to seek to remain.

30. The applicant told the Tribunal that he has previously travelled to Singapore, Thailand and Laos and has never had immigration issues during his travels.

31. The applicant told the Tribunal that there are no issues of political/civil unrest or military service commitments which would prohibit him from returning to his home country.

32. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant his movement records and discussed the applicant’s response with him.

33. Overall, the Tribunal does not consider that the applicant to be a genuine and temporary entrant. The Tribunal considers that the applicant (and his wife) are well-established in Australia, and have been for many years. The Tribunal considers that the presence of the applicant’s daughter in Australia is a significant incentive for him to seek to remain as long as possible. Further, the Tribunal considers that the applicant has an economic incentive to remain in Australia. The Tribunal considers that the applicant has been able to manage his relationships overseas by ordinary telecommunications means and that the presence of his family offshore is not a significant incentive for him to leave. For the reasons set out above, the Tribunal does not accept the applicant’s claimed plan to work as a missionary in Mongolia.

34. In any event, having regard to the enrolment dates specified on the confirmation of enrolment certificate provided to the Tribunal, the Tribunal observes that in the period in between the hearing in this matter and this written decision being prepared the applicant should now have completed the Diploma of Christian Ministry and Theology he proposed at the time of the hearing. That is, on the applicant’s own evidence, he should now be in a position to leave Australia. The applicant has not provided the Tribunal with evidence of completing the Diploma of Christian Ministry and Theology or arrangement to depart Australia.

35. 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).

36. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses 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 subclasses. 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 subclass. 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.

37. It follows that the secondary applicant, the primary applicant’s wife, is also unsuccessful.

    DECISION

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

    P. Wood
    Senior Member