Shin (Migration)

[2018] AATA 2174

Shin (Migration) [2018] AATA 2174 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Younghoon Shin

CASE NUMBER:  1617020

DIBP REFERENCE(S):  BCC2016/3203084

MEMBER:Wendy Banfield

DATE:2 May 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 02 May 2018 at 2:31pm

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – Genuine applicant for entry and stay as a student – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 on 30 September 2016 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 for the visa on 27 September 2016. 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.

3. 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 applicant did not demonstrate that they met the genuine temporary entrant criteria.

   Background

4. The applicant is a citizen of Korea and is currently 36 year old. He came to Australia in 2007 and has held a working holiday visa as well as student visas. The applicant was also a dependent on his wife’s student visa, however the marriage broke down. Since arriving in Australia the applicant has completed studies in Management, Human Resources, Financial Services and Marketing. He has also been enrolled in Tourism and Accounting.

5. The applicant is currently studying an Advanced Diploma of Marketing and Communications that is scheduled to be completed on 11 August 2019. The applicant declared he intends to return to Korea and seek employment with an international trading company.

6. The applicant appeared before the Tribunal on 14 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

7. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 applicant meets the criteria of a genuine temporary entrant.

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.

    Does the applicant intend genuinely to stay in Australia temporarily?

11. 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.

12. 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.

13. The applicant provided evidence of having come to Australia on a working holiday in 2007 and remaining as a student thereafter. He explained that he had married in 2011 but the marriage broke down in 2014 which affected his ability to study.

14. At the hearing and in his written submissions the applicant said he wishes to complete the Advanced Diploma of Marketing and Communications course he is currently enrolled. It was submitted that he would likely be unable to enrol in educational institution in Korea due to his age if he returned now and if he could; his Australian studies may not be recognised. It was also claimed that due to the competitive job market in Korea, the applicant needs to have advanced qualifications to compensate for his age. The representative’s written submission dated 13 December 2017 declares that without completing the Advanced Diploma course, his career prospects will be ruined.

15. The applicant’s stated career plans are to work in an international trade corporation. The representative acknowledges that the applicant will be almost 40 years of age at the end of his studies and his experience in a diverse country like Australia will give him an advantage. The Tribunal agrees the applicant will benefit from his studies in Australia to date, however, it has not been satisfactorily demonstrated why the completion of an Advanced Diploma is important.

16. The applicant has been in Australia for more than 10 years. He is proposing to continue studying until 2019 when in fact, it would be more beneficial for him to pursue his stated career plans in his own country. From a statement provided to the Department it appears the applicant has done some part-time work as a human resources assistant and the Tribunal considers that this, together with his studies to date would allow him to seek work in Korea. The Tribunal does not accept the applicant would need to undertake further education in Korea before he can work, or that without completing an Advanced Diploma his career plans cannot be achieved.

17. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

18. 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.

19. 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

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

    Wendy Banfield
    Member