Yeom (Migration) - [2021] AATA 192

Yeom (Migration) [2021] AATA 192 (27 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Eungjin Yeom
Mrs Mi Sun Park
CASE NUMBER:  1924462
HOME AFFAIRS REFERENCE(S):         BCC2019/2631290
MEMBER:Robert O’Neill
DATE OF ORAL DECISION:                   27 January 2021
DATE OF WRITTEN STATEMENT:        27 January 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.

And the second named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.311 of Schedule 2 to the Regulations.

Statement made on 27 January 2021 at 11:25am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – no employment or financial ties to Australia – strong family ties to home country – offer of employment in family business conditional on completing diploma – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311

CASES

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Saini v MIBP [2016] FCA 858

Shoukat v Minister for Home Affairs [2020] FCA 194

Tandukar v Minister for Immigration [2019] FCCA 3510

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

The primary applicant (the Applicant) is a 52-year-old male citizen of the Republic of Korea who seeks review of a decision made by a delegate of the Minister refusing to grant him a student visa.
The Applicant filed his visa application on 21 May 2019. The visa application was refused by the delegate on 14 August 2019.
Type of Visa
The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Student (Temporary) (Class TU) (Subclass 500) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’).
[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 500.1 to 590.612.
If granted, a student visa permits a non-citizen to enter and remain in Australia to study full-time on a temporary basis.

Reasons for Initial Refusal

The student visa was refused in this case because the delegate found that the Applicant did not satisfy the primary criteria contained in cl 500.212 of Schedule 2 of the Regulations. The delegate was not satisfied that he was a genuine applicant for entry and stay as a student.
The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when he was notified…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 192
Decision Date: 27 January 2021

CaseChat Overview and Summary

The applicant, Mr. Yeom, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, which affirmed the refusal of his Subclass 500 (Student) visa. The primary ground for refusal was that Mr. Yeom was not considered a genuine temporary entrant (GTE). The Administrative Appeals Tribunal (AAT) had affirmed this decision, leading to the present application in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Tribunal had erred in law in its assessment of Mr. Yeom's GTE status. Specifically, the Court had to consider whether the Tribunal had adequately considered all relevant factors, including the applicant's circumstances in his home country and his intentions regarding his stay in Australia, when determining if he genuinely intended to temporarily enter Australia for the purpose of study and then depart.

The Court found that the Tribunal had failed to properly consider the evidence regarding Mr. Yeom's strong family ties to his home country and the conditional offer of employment in his family's business, which was contingent upon his completion of a diploma. While the Tribunal noted the absence of employment or financial ties to Australia, it did not sufficiently weigh these factors against the evidence suggesting a strong incentive for the applicant to return home. Consequently, the Court concluded that the Tribunal's decision was affected by an error of law.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders