Shin (Migration)

Shin (Migration) [2019] AATA 6570 (14 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Joonghyun Shin
Mrs Hee Sung Moon
Miss Jiwoo Shin
Mr Joonwoo shin
CASE NUMBER:  1727051
HOME AFFAIRS REFERENCE(S):          BCC2017/2976247
MEMBER:Roger Maguire
DATE:14 August 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 14 August 2019 at 3:47pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine intention to stay temporarily – incentives to stay or return – multiple courses in different subjects – plans to continue studying – value of course to future – family, employment and children born in Australia – no significant ties to home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cll 500.212, 500.311
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 18 October 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 18 August 2017. 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.
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 the delegate found that the applicant did not intend to stay temporarily in Australia.
On 5 July 2019, the applicant consented to the Tribunal deciding the review without a hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 the primary applicant is a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl.500.212)
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, 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.
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.
Circumstances in home country.
The applicant has not lived in his home country since 14 August 2007, which is the day that he arrived in Australia.
The applicant completed military service in Korea prior to coming to Australia, and has expressed no concerns about military service or civil unrest in his home country.
The applicant has only disclosed one close relative who continues to live in South Korea, that being his brother, whom he last saw in April 2017 when the applicant attended his brothers marriage ceremony. The applicant has stated that he does not have any community ties in his home country at the moment. The applicant has not demonstrated any commercial or economic ties to his home country.
Since coming to Australia on 14 August 2007, the applicant has only departed on three occasions for periods of two weeks or less.
The applicant has undertaken a succession of courses in theology since December 2013, and is currently enrolled in a Master of Divinity degree which he commenced on 31 July 2017, and is due to complete on 30 June 2020.
The applicant has stated that there are many theology courses in South Korea and has sought to justify his decision to undertake the studies in Australia on the basis that Australia has a much more developed immigrant theology study program then South Korea has, because South Korea is not a multicultural country.
The applicant has stated that after finishing the first year of his Master’s degree study, he will be ordained as a minister, and he then intends to undertake doctoral studies in theology, however if his financial circumstances do not allow him to do so he has stated “I will be working as a full time minister in Australia to spread the gospel to various immigrants.”
The Tribunal is not satisfied that the applicant as demonstrated reasonable reasons for not undertaking his current studies in his home country.
The Tribunal is not satisfied that the applicant has demonstrated any intention or desire to return to his home country. This weighs heavily against the applicant.
Potential circumstances in Australia.
The applicant has significant family in Australia. Not only is he accompanied by his wife and two children, the applicant’s mother and stepfather also reside in Australia. The applicant has previously been employed with one employer for approximately three years, and appears to have a relatively settled life in Australia. The applicant has expressed a desire to work as a full-time minister in Australia, and anticipates earnings between $40,000 and $60,000 per year.
The applicant is already working as a voluntary Sunday school teacher at Sydney Shalom Community Church, and is also working as a president of the student Representative Council, a reporter and a member of the gospel choir of Sydney College of Divinity.
The applicant and his wife have two children who are dependent applicants in this application, and were born since the applicant and his wife came to Australia. It appears these children have only known life in Australia.
The applicant and his wife have now lived in Australia for 12 years, and their circumstances in Australia, particularly having regard to the applicant’s circumstances in his home country discussed above, suggest that the applicant will if permitted, extend his stay in Australia as long as possible, by pursuing a doctoral degree following the completion of his current Master’s degree.
The Tribunal finds that the applicant has demonstrated very strong incentives to remain in Australia for as long as possible, and this is not consistent with temporary entry as a student. Overall this criterion weighs against the applicant.
Value of course to the applicant’s future.
The applicant was granted his initial Student visa (TU 570) offshore on 23 July 2007, and subsequently arrived in Australia on 14 August 2007 accompanied by his wife. The applicant initially entered Australia to study in the field of tourism. The decision record which was provided by the applicant to the Tribunal indicates that he failed to complete any qualifications in the field of tourism. Instead he extended his English study, and later completed a certificate four in Financial Services.
The Tribunal accepts that the applicant’s changes in study stream have been made in good faith.
The applicant is now studying his fourth qualification in theology, and has foreshadowed a desire to study a fifth in the future. The applicant has stated that he anticipates earning between $40,000 and $60,000 per year as a minister, but has not provided sufficient information to the Tribunal to demonstrate that his current course of studies adds economic value to, or otherwise enhances his future economic prospects.
The Tribunal is unable to find that the applicant’s current course of study is of value to his future economic circumstances.
Applicant’s Immigration history.
The applicant has already lived in Australia for 12 years. Since his initial Student visa, he has been granted a further seven student pieces (six as the primary visa holder) and a dependent graduate visa. The applicant has demonstrated a desire to extend his stay in Australia indefinitely, and this is not consistent with his being a genuine applicant for temporary entry.
On the basis of the above, 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).
Conclusion on cl.500.212
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.
Hee Sung Moon
In order to grant the above named applicant a Student visa, the Tribunal must be satisfied that clause 500.311 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that:
500.311
The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:
(a) the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:
(i)the primary person’s application under sub regulation 2.07 AF (3); or
(ii)information provided in relation to the primary person’s application under sub regulation 2.07 AF (4); or
(b) the applicant became a member of the family unit of the primary person:
(i)after the grant of the student visa to the primary person; and
(ii)before the application was made.
As the primary person failed to satisfy the primary requirements for the grant of this student visa, the above-named applicant fails to satisfy clause 500.311.
As clause 500.311 is not met by the primary applicant, the criteria for the grant of a student visa are not met by the above-named applicant.
Joonwoo SHIN
In order to grant the above named applicant a Student visa, the Tribunal must be satisfied that clause 500.311 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that:
500.311
The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:
(c) the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:
(iii)the primary person’s application under sub regulation 2.07 AF (3); or
(iv)information provided in relation to the primary person’s application under sub regulation 2.07 AF (4); or
(d) the applicant became a member of the family unit of the primary person:
(iii)after the grant of the student visa to the primary person; and
(iv)before the application was made.
As the primary person failed to satisfy the primary requirements for the grant of this student visa, the above-named applicant fails to satisfy clause 500.311.
As clause 500.311 is not met by the primary applicant, the criteria for the grant of a student visa are not met by the above-named applicant.
Jiwoo SHIN
In order to grant the above named applicant a Student visa, the Tribunal must be satisfied that clause 500.311 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that:
500.311
The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:
(e) the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:
(v)the primary person’s application under sub regulation 2.07 AF (3); or
(vi)information provided in relation to the primary person’s application under sub regulation 2.07 AF (4); or
(f) the applicant became a member of the family unit of the primary person:
(v)after the grant of the student visa to the primary person; and
(vi)before the application was made.
As the primary person failed to satisfy the primary requirements for the grant of this student visa, the above-named applicant fails to satisfy clause 500.311.
As clause 500.311 is not met by the primary applicant, the criteria for the grant of a student visa are not met by the above-named applicant.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Roger Maguire
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.

[2019] AATA 6570

14 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice