Son (Migration)

[2020] AATA 4717

Son (Migration) [2020] AATA 4717 (9 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hyun Suk Son

CASE NUMBER:  1917042

HOME AFFAIRS REFERENCE(S):          BCC2019/1977127

MEMBER:Amanda Upton

DATE:9 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 09 November 2020 at 3:10pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study, visa and work history – length of residence, including period as guardian for student child – short, lower-level courses in different subject areas – availability of similar courses in home country – benefit of course to applicant’s future – vague plans for future business – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

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 Home Affairs on 20 June 2019 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 17 April 2019. 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 they did not consider the applicant to be a genuine temporary entrant for entry and stay in Australia as a student.

4. The applicant appeared before the Tribunal on 5 November 2020 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 assisted in relation to the review by their 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. 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 is a genuine temporary entrant for entry and stay in Australia as a student.

   Genuine applicant for entry and stay as a student (cl.500.212)

8. 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?

9. 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.

10. 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.

Entry and Visa History

1. The applicant in this case is a 52-year-old Korean woman who first arrived in Australia on 30 September 2009, 11 years ago, as the holder of a student (guardian) visa, she converted that visa to a study visa to enable her to study hairdressing shortly after arrival,  but she did not complete this course and converted the visa back to a student (guardian visa). Once her daughter became old enough to look after herself, the applicant converted back to having her own student visa in order to study English.

Time Onshore

1. The applicant has returned home once since arrival in Australia, for 2 months in 2014. She has also travelled to Hong Kong for a period of 5 days during this time.
   
   
   
   

Study History

1. Prior to arriving in Australia, the applicant obtained qualifications in Bachelor Graphic Design. She has previous work experience as an administrative assistant, teacher and manager. The applicant’s Bachelor degree was relevant to her employment as a teacher, she taught graphic design to high school children. She had been working at an English institute prior to her arrival in Australia, this is where she intends to return to work

2. Since her arrival in Australia, the applicant has completed;

   ·     Certificates I-IV in EAL

   ·     Certificate IV in Business

   ·     Diploma of Leadership & Management

3. The applicant is currently enrolled in an Advanced Diploma of Leadership & Management scheduled for completion in August 2021.

Evidence in Support of Application

1. In support of her application, the applicant has provided a number of documents.

2. The Tribunal has considered these documents and the evidence given by the applicant in reaching its decision.

Applicant’s circumstances in their home country

1. The Tribunal has had regard to the applicant’s circumstances in Korea as follows;

   Reasons for not studying in home country

   ·The applicant considers that it would be difficult to find a course in Korea considering her educational background.

   ·Korean education has a more theoretical approach as opposed to the practical approach in Australia.

   Personal ties to home country

   ·The applicant has family who live in South Korea. She keeps in contact with them once a week.

   ·The applicant has an apartment in South Korea that is currently rented to tenants, she derives an income from the rent.

   ·The applicant has not returned home since 2014.
   
   
   
   

   Economic Circumstances in Australia as incentive not to return home

   ·The applicant has worked as a cook since 2017. She continues to work in this employment.

   Military service or civil/political unrest concerns in home country

   ·The applicant raises no such concerns.

2. The Tribunal is unable to accept that applicant’s assertion about study in her home country, it is a claim made without supporting evidence. The applicant has not provided any specific details establishing benefits to be gained by studying the proposed course in Australia as opposed to studying in her home country considering the financial outlay required to study in Australia. The Tribunal is unable to conclude that there are genuine reasons for studying in Australia as opposed to her home country.

3. The Tribunal acknowledges that the applicant has family who reside in South Korea however the Tribunal finds that these family ties do not present as a significant incentive for the applicant to return to her home country particularly considering the significant family ties that she has in Australia and the lack of time spent offshore since her arrival.

4. The Tribunal finds that the applicant’s potential economic circumstances in Australia as demonstrated by her consistent and ongoing employment outweigh her financial ties to her home country. The Tribunal notes that the applicant has interest in property in South Korea however does not consider this to be a financial tie that provides an incentive to return to her home country and notes that the applicant derives rental income from it whilst in Australia.

Applicant’s potential circumstances in Australia

1. The Tribunal has had regard to the applicant’s potential circumstances in Australia, based on the evidence provided at the hearing, as follows;

   Applicant’s ties with Australia

   ·The applicant has a sister who lives in Australia, she is an Australian citizen and has a family in Australia. The applicant does not live with her sister and does not see her often as she lives in the northern suburbs whereas she lives in the eastern suburbs.

   ·The applicant lives with her daughter, they rent their property. The applicant was in Australia with her daughter during the period of the subclass 590 visa whilst she was completing high school, she is now studying nursing and is due to complete this study in 2 years.

   Evidence visa program being used to circumvent the migration program

   ·The applicant is enrolled in short, inexpensive vocational courses.
   
   
   

   Applicant’s knowledge of living in Australia, their intended course and level of research into their intended course.

   ·The applicant considers that she will be a more competent manager in South Korea if he can speak English. She provided no information as to why she chose the education provider specifically or how she chose her current course as relates to her specific circumstances.

2. The Tribunal gives significant weight to the fact that the applicant’s daughter and sister are in Australia, as a factor that serves as a disincentive for the applicant to return to South Korea.

3. On the basis of the information provided and considering the conclusions that the Tribunal has drawn concerning the applicant’s plans/goals (discussed below), the Tribunal is unable to conclude that the applicant has undertaken any genuine research into her proposed course, course content, education provider or educational objectives as would be expected of a genuine student who is undertaking a course for a specific purpose.

Value of the course to the applicant’s future

1. The Tribunal has had regard to the value of the course/s of study to the applicant’s future as follows;

   Is the course consistent with the applicant’s current level of education?

   ·The applicant has previously completed study in Graphic Design at Bachelor level. The current course of study is at a regressive level and in a different subject.

   Will the course assist the applicant to obtain employment or improve employment prospects?

   ·The applicant would like to obtain a senior management position on her return to South Korea. The applicant has provided the Tribunal with a document indicating a job offer at the institution on completion of her study.

   ·The applicant intends on returning to work at the English Academy where she was previously employed and teach children. She has provided a job offer.

   ·The applicant also intends on setting up her own private institute and considers that the Australian qualification is important for this.

   ·The applicant told the Tribunal that she considers that the leadership & management course is of value to her as it will help her set up her institute as a Director and essential to demonstrate leadership & operate her own business in South Korea. She considers that the overseas qualification is appealing to prospective customers.

2. Whilst the Tribunal accepts that the applicant may be able to return to her previous employment in South Korea, it does not consider this to be an employment tie to her home country nor does the Tribunal consider that the applicant has established that her current course of study is necessary for her to do so. The Tribunal also notes the length of time that the applicant has been away from this employment and as such places little weight on the fact of the offer in any case.

3. The Tribunal considers that the applicant’s alternative goal with respect to opening a business is vague and lacking in substance as it is not supported by any specific plans or information. The Tribunal therefore is unable to conclude that there is any connection between the applicant’s career goals and the current course of study. The Tribunal also considers that the applicant has not established that the current course of study is of value to such plan in any case.

4. The Tribunal considers that the value of the course to the applicant is that it will allow her to prolong stay in Australia rather than for the purpose of an educational outcome.

Immigration History

1. The Tribunal has had regard to the applicant’s immigration history. There is no evidence of other visa refusals or cancellations. The Tribunal draws no inference, adverse or otherwise from the applicant’s visa history.

2. The Tribunal is troubled by the length of time that the applicant has spent onshore, being 11 years. The Tribunal considers that the fact in and of itself is indicative of an intention to intention to not remain on a temporary basis. The Tribunal raised his concern with the applicant, and she responded that; she initially came to Australia with her daughter who was a student and was supporting her. Whilst looking after her daughter she decided she should learn something, and therefore she started the hairdressing course. She found the English too difficult so did not complete it. When the applicant’s daughter was old enough to not to need looking after she decided to complete further study and consequently enrolled in English study.

3. The Tribunal accepts that for a large part of this time spent onshore, the applicant was caring for her daughter and the Tribunal draws no adverse inference as to her study history, however this does not change the bare fact that the applicant has been onshore for a significant period of time and the Tribunal considers that this is an indication in and of itself that she does not have an intention to remain in Australia temporarily.

Any other relevant matters

1. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69:

   ·Any other relevant information provided by the applicant that may be either beneficial or unfavourable to the applicant.

2. Although the applicant provided information to the Tribunal demonstrating that she has successfully completed some studies undertaken to date, considering all the circumstances and all the evidence before the Tribunal, the Tribunal does not accept the applicant’s claims to be those of a genuine temporary entrant.

3. The Tribunal considers that an applicant who is a genuine temporary entrant in Australia for the purpose of studying and to progress academically will be able to demonstrate circumstances that evidence a genuine intention to remain temporarily as a genuine student. The Tribunal acknowledges that these things will be different in each individual case and may change over time with respect to an individual applicant.

4. The Tribunal considers that the applicant has failed to establish such circumstances and as such the Tribunal does not accept the applicant’s claim to be a genuine temporary entrant

5. Considering the above individually and collectively, 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).

6. 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.

7. 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

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

   Amanda Upton
   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.