Yoo (Migration)

[2021] AATA 4715

Yoo (Migration) [2021] AATA 4715 (24 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaemin Yoo

CASE NUMBER:  2002810

HOME AFFAIRS REFERENCE(S):          BCC2019/6719914

MEMBER:Peter Booth

DATE:24 November 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 24 November 2021 at 7:12am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – gaps in studies – value of the course to the applicant’s future career – multiple courses completed – employment offer in Korea – child born in Australia – maintaining ongoing residence in Australia – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cl 500.212

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 24 January 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 December 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 (Cth) (the Regulations) because the applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 18 October 2021 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.

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.

   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.

11. The applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 24 January 2020 refusing his application for a student visa. The applicant understood and that the issue for determination was whether he was a genuine temporary entrant.

12. The applicant was asked to describe his current enrolment including commencement and completion dates. The applicant said “currently start at end of September, last until December, and course finish in 23”. He did not elaborate. The Tribunal informed the applicant that this evidence was vague and asked him to provide the names of any courses that he was currently enrolled in together with the commencement and completion dates. He said “it started in 2019 and will finish in 2023”. He did not elaborate. He was again invited to provide particulars of these enrolments. He said “started in 2020 and will finish in 2023”. He did not elaborate. He was asked whether he knew the name of the course in which he was enrolled. He said “information technology course”. The Tribunal informed the applicant that none of the information which he had just provided accorded with the confirmation of enrolment document that he had provided to the Tribunal. He was asked to explain the inconsistency. He replied “currently I have finished Certificate IV in IT and currently doing Diploma in Information Technology and I’m planning to do advanced course in IT”. He was asked to state the dates that these courses commenced and would finish. He said “I don’t understand”. The Tribunal asked the applicant whether he was enrolled in a Diploma of Information Technology Networking which commenced on 8 February 2021 and was due to be completed on 6 February 2022. He said “yes”. The Tribunal asked the applicant whether he was enrolled in an Advanced Diploma in Information Technology which will commence on 7 February 2022 and be completed on 5 February 2023. The applicant said “yes”. The Tribunal asked the applicant why he was not able to state the names and particulars of his current enrolments. He said “I didn’t understand your question correctly. I thought I was at start here and finish”. The Tribunal informed the applicant that his response was difficult to accept and invited him to comment. He said “sorry about that”.

13. Shortly prior to the hearing the applicant’s representative produced a confirmation of enrolment in respect of a Certificate IV in Information Technology Networking which had commenced on 3 February 2020 and was due to be completed 31 January 2021, a Diploma of Information Technology Networking which commenced on 8 February 2021 and was expected to be completed on 6 February 2022 and an Advanced Diploma of Information Technology scheduled to commence on 7 February 2022 and be completed on 5 February 2023.

14. Notwithstanding the extremely confused and vague nature of the applicant’s evidence the Tribunal accepts that he is enrolled in the course described in the confirmation of enrolment.

15. The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2). In summary the information provided by the applicant was as follows.

16. The applicant completed “high school” between March 2002 and February 2005 and was employed as an “apprentice” at a “computer parts wholesaler” between May 2008 and January 2009 from which he derived an annual salary of AU$30,000.

17. The applicant arrived in Australia on 13 July 2010 and since that time has returned to South Korea on one occasion in September 2018 for a period of one week. The explanation for this visit was as follows “bridging Visa has expired. Visit family”.

18. The application for the student visa in question was made in December 2019.

19. The applicant stated his visa history in Australia to be as follows: he held a “first working holiday” visa between July 2010 and July 2011, “second working holiday” visa between July 2011 and July 2012 and “tourist visa” between October 2018 and February 2019.

20. In answer to the question as to whether the applicant had applied for any other Australian visa where a decision on that application has not yet been made he said “yes”. He provided the following details “Certificate IV in Marketing and Communications student visa applied in March 2017, refuse this visa on 11 May 2017 by the Department of Home Affairs. I applied a merit review and was not successful 09/2018”. The applicant appears to have misunderstood the question. Based upon his response it appears that the applicant had an earlier student visa application refused in May 2017 and which was affirmed presumably by this Tribunal in September 2018.

21. The applicant stated his study history in Australia to be as follows: he enrolled in a course described as “business” in July 2012 but did not complete it, he enrolled in another course described as “business” at a different course provider in May 2014 but did not complete it, he enrolled in a course described as “accounting” in June 2015 and completed it in April 2017, he enrolled in a course described as “marketing and communication” in March 2017 and completed it in December 2019.

22. The applicant did not provide any details of his employment history in Australia.

23. The applicant stated that his father and mother reside in South Korea and that his brother and “sun” reside in Australia.

24. The applicant did not provide any information in respect of ownership of assets in South Korea.

25. As to his future employment plans the applicant stated, “I refer it to submission”.

26. As to his expected future remuneration the applicant stated “I refer it to submission”.

27. The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary were as follows.

28. In answer to a question from the Tribunal he confirmed that he held a working holiday visa in Australia between July 2010 and July 2012. He was asked whether he returned to South Korea at the expiration of that visa. He said “no”. The applicant confirmed that he applied for a tourist visa in October 2018. He was asked what visa he held between July 2012 and October 2018. He said “bridging visa for student visa”. The Tribunal informed the applicant that it did not understand his response and invited him to explain his visa history between July 2012 and October 2018. He said “from August 2012 until October 2018 I was holding a student visa, then I went to South Korea and returned to Australia as tourist visa, then I apply for student visa, but holding bridging visa, can I change what I said now”. He was invited to continue with his evidence. He said “in October 18 I came to Australia on tourist visa and then applied for student visa, student visa was granted, and then afterward I applied for a visa”. The Tribunal invited the applicant to provide a concise visa history in Australia on or before 4 pm on the day following the conclusion of the hearing. The applicant agreed to do so.

29. The Tribunal observed that the information provided to it by the applicant stated that he enrolled in a “business” course in July 2012 but did not complete it. The applicant agreed. He was asked to state the proper name of the course. He said “Certificate IV Business but school closed down so I couldn’t complete the course”. He was asked when this occurred. He said “after two school terms, close down”. When the question was repeated he said “close in April 2013”.

30. He was asked whether he could produce any proof of the course provider closing. He said “I don’t have that moment but will look for it”.

31. The Tribunal observed that he stated that he next enrolled in a “business” course in May 2014. The applicant agreed. He was asked to state the proper name of the course. He said “diploma of business administration”. When asked what he did between April 2013 and May 2014 he said “I was just in the process of looking for other schools”. The Tribunal asked the applicant whether he was asserting that for over one year he was not enrolled or studying. He said “no because it’s time had passed I couldn’t remember before previous school which closed down. Before it was closed down I study there Certificate IV in Business Administration, after completing that by the time school closed down, so in 2014 I enrolled and started course at different school”. The Tribunal put to the applicant that his explanation was not believable, there appeared to be a clear gap in his study and invited him to explain it. He said “because it was too long ago I was confused. I started this attending the school which closed down in September 2012 and study until December 13, before close down then after school closed down and then I enrolled after that pretty soon”. The Tribunal informed the applicant that his response was still difficult to follow and observed that if he ceased studying the previous course in December 2013 and did not start his new course until May 2014 there was a clear gap in his study. He was invited to explain it. He said “in 2013 there was summer school holiday so some time before next term begin”. The Tribunal informed the applicant that it was not satisfied that he did not have a significant gap in his study in this period. The applicant did not respond.

32. The applicant confirmed that he completed a marketing and communication course in December 2019. Further that his next course, a Diploma in IT Networking commenced on 8 February 2021. He was asked what he did between December 2019 and February 2021. He said “Certificate IV in IT”.

33. The Tribunal observed that he had not provided any information regarding such a course and asked him when it commenced and when it concluded. He said “it started in February 2020 and Certificate IV finish in January 21”.

34. The Tribunal asked the applicant to provide evidence of his enrolment in such a course after the conclusion of the hearing. The representative interrupted and informed the Tribunal that such evidence had been provided to the Tribunal prior to the hearing.

35. The applicant was invited to explain the change in direction in his study while in Australia. He said “one of my uncle suggested to work together with me so I ended up taking courses which are thought necessary to do the job”. The Tribunal asked him to explain the “suggestion” which his uncle had made. He said “that was when I started first accounting course 2015, uncle currently running English private school in South Korea”.

36. He was asked whether he had been employed in Australia whilst holding student visas. He said “yes”. He was asked to provide the details. He responded “I did cleaning work in casual and also work as tiler at construction site”. When asked whether he was currently employed he said “yes”. He did not elaborate. He was asked to provide details. He said “Tiling work, and because of lockdown work was quiet for a while but now I am working for a company in Newtown, for 20 hours each week”. When the question was repeated he said “before lockdown income of $500 or $700 each week”.

37. He was asked when he arrived in Australia as a tourist. He said “October 2018”. He was asked as to the purpose of his visit. He said “I’m a promise with my uncle, and I returned to South Korea in mid of marketing course, so I came back to finish the course”. He was asked whether he returned to Australia on a tourist visa. He said “yes”. When asked whether he travelled to Australia solely for the purposes of study he said “yes because I was still enrolled”. He was asked why he did not apply for a student visa before he returned to Australia. He said “in order not to be late for course”. He was asked whether he made a declaration when he entered Australia as a tourist as to the length of his intended stay. He said “don’t remember”.

38. When asked whether he had relatives in Australia he said “no”. The Tribunal pointed out that in information provided to it by the applicant, he had stated that he had a brother and “son” in Australia. He was invited to comment. He said “I didn’t see them as relative, they are family”. When asked to state who of his family resided in Australia he said “one younger brother and newborn child”. He was asked whether the child was his child. He said “yes”. He was invited to give some more evidence about it. He said “don’t know what you want”. The Tribunal invited him to provide details such as the gender of the child, when the child was born, its age and why he was travelling with the child. He said “child born in May 21, a boy, child was conceived, it was unplanned pregnancy, the woman, the girlfriend met last year, however I am happy to become a parent”. He was asked whether the child’s mother was an Australian citizen. He said “no”. When asked whether the child was living with the applicant he said “yes”. He was asked to state the mother’s citizenship. He said “Korean”.

39. When asked whether he had any assets in South Korea he said “no”.

40. The applicant was asked to state how many times he had returned to South Korea and the duration of those visits since arriving in Australia on a working holiday visa. He said “went to South Korea only once in 2018, stayed for 10 days”.

41. He was asked to state his employment intentions when he returns to South Korea. He said “as said before, I am going to work with uncle, I am going to work at his institute as a general manager”. He was asked to state when he had received a job offer in respect of this position. He said “in 2016”.

42. He was asked to state the relevance of his current course to employment as a manager of a language school. He said “while I am in role as general manager I wanted to obtain multi-skill in accounting, marketing and information technology”.

43. The applicant declined an opportunity to add anything further to his application for review.

44. Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to those documents. An undated letter from “Prime Education” offers the applicant employment as general manager following completion of his “marketing studies in Australia”. The starting salary range is stated. The terms of employment are provided. It is not signed by the applicant to evidence that he has accepted the offer. It is apparently from his uncle. It is given little weight.

45. After the hearing the applicant’s representative provided education transcripts and certificates which disclose as follows: he completed a Diploma of Business Administration on 6 May 2014, a Certificate IV in Accounting on 16 June 2015, a Diploma of Accounting on 20 April 2016, an Advanced Diploma of Accounting on 12 April 2017, a Certificate IV in Marketing and Communications on 22 April 2018, and a Diploma of Marketing and Communications on 18 October 2019.

46. After the conclusion of the hearing by email dated 19 October 2021 the applicant’s representative provided further information as follows:

    Mr Yoo’s instructions are as follows:
    Hearing response correction
    Visa history in Australia
    The business course in Ivy Business College information

    • Mr Yoo was confused yesterday in the hearing regarding the time gap between Ivy College and Pacific College. The accurate response is that Mr Yoo did not take a long break but he immediately transferred his course from IVY College.
    • Working holiday visa- July 2010 to July 2012.
    • Student Visa- July 2012 to September 2018
    • Tourist visa -October 2018 to January 2019
    • Student visa- January 2019 to December 2019
    • Bridging Visa A- since December 2019 till now
    • Mr Yoo applied for a student visa July 2012, the visa granted September 2012 and the course commenced on 9 October 2012.
    • Mr. Yoo attended and completed the course until the school closed (5 April 2013) Attached CoE Certificate (53140292) & Cancellation CoE (5ABF8B49)
    • Mr.Yoo continued studying at Pacific College from 06 May 2013 to 06 May 2014.
    • Mr Yoo achieved Diploma of Business from this course. Attached CoE (53141820) & Diploma of Business Administration

1. The Tribunal notes that the so-called “cancellation COE (5ABF8B49)” was not attached to the email.

2. Prior to the hearing the applicant provided a statement in support of his application for review. The statement is signed, undated, and without page numbers or paragraph numbers. The statement was not referred to by the applicant during the course of giving evidence at the hearing. Nonetheless it has been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to the statement. It is broadly consistent with his oral evidence although does provide some better detail of his study history. It refers to employment in his uncle’s business but does not provide any significant details.

3. The applicant’s representative was invited to make submissions to the Tribunal. The representative made brief submissions but it was clear that he relied upon his written submissions dated 7 October 2021. These submissions are undated, and without page numbers or paragraph numbers. They have been taken into account by the Tribunal and given appropriate weight. The Tribunal makes a number of observations in relation to the submissions. It purports to give evidence in relation to a range of matters. These matters could have been and should have been the subject of direct evidence by the applicant. The submissions purport to provide further evidence than that which was provided by the applicant. They are given no weight. It does state that the Certificate IV course in business at “Ivy Business College” was not completed because the college closed down. No evidence of that has been provided to support the assertion. This was raised in the hearing with the applicant. The applicant said that he would provide corroboration. He has not done so. The assertion that the college closed is given little weight. The submission provides certificates of completion of various courses. It also mentions that in 2016 the applicant’s then application for a student visa was refused. Apparently he sought a review. That review was unsuccessful. He departed Australia. He returned to Australia as a tourist. The submissions do not explain the apparent study gaps. A translated contract of employment is attached to the submissions. It is between the applicant and Prime Education. It refers to a period of employment commencing on 2 March 2023 until 2 March 2028. It contains basic employment details. It is dated 2 December 2020. The Tribunal observed that that was not previously produced, it was not referred to by the applicant at the hearing, it is for future employment commencing in 2023 in circumstances where the applicant has not completed his studies, and it is with his uncle’s firm. It is given little weight.

4. In considering whether the applicant has met the genuine temporary entrant criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.

   CONCLUSIONS

5. The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.

6. Without diminishing the applicant’s evidence, it can be summarised as follows.

7. The applicant completed secondary education in South Korea in 2005. He has extremely limited work history in South Korea prior to arriving in Australia. He arrived in Australia on 13 July 2010 as the holder of a working holiday visa. This was extended until 2012. He held student visas from 2012 until 2018, then a tourist visa from October 2018 until January 2019, then a student visa from January 2019 until December 2019. The application for the student visa in question was made on 17 December 2019. The applicant has returned to South Korea on one occasion in September 2018. This was for a period of either one week or 10 days, he gave evidence as to both. He applied for a student visa in 2017, it was refused in May 2017. A review of that decision was unfavourable to the applicant, this was concluded in September 2018. No other details have been provided by the applicant and he has not explained in any detail the reasons for the visa refusal.

8. The applicant’s study history is as follows: he completed a Diploma of Business Administration on 6 May 2014, a Certificate IV in Accounting on 16 June 2015, a Diploma of Accounting on 20 April 2016, an Advanced Diploma of Accounting on 12 April 2017, a Certificate IV in Marketing and Communications on 22 April 2018, and a Diploma of Marketing and Communications on 18 October 2019. However in the information which the applicant provided to the Tribunal prior to the hearing he stated that he also commenced several courses but did not complete them as follows: he enrolled in a course described as “business” in July 2012 but did not complete it, he enrolled in another course described as “business” at a different course provider in May 2014 but did not complete it. Insofar as the first course is concerned both the applicant and his representative have asserted that the course provider, Ivy Business College, closed before the applicant was able to complete the course. However as described above the applicant has not provided any documentary corroboration of this assertion. It is not clear whether the applicant did fail to complete the second course. His evidence on this was confused although he does appear to have completed such a course in 2014. Such is the unsatisfactory nature of the applicant’s evidence particularly in regard to his study history.

9. He appears to have had at least one gap in study between December 2013 and May 2014 although this is far from clear.

10. He owns no assets in South Korea. His family reside in South Korea however his brother and the applicant’s infant son reside in Australia. The applicant has an offer of employment in South Korea as general manager of his uncle’s language school. It will commence in 2023. As discussed above it is given little weight. The applicant has not provided a clear and cogent career path and has not explained why he has changed his direction in study on several occasions in Australia. As discussed above he has enrolled in several courses, did not complete at least one of those courses and perhaps two. His reasons for doing so were vague and confused.

11. The applicant has not explained to the Tribunal’s satisfaction why he has changed the direction of his study, why he did not return to South Korea permanently when his first student visa refusal occurred, why he did not return to South Korea when his second student visa refusal occurred, a clear and cogent career path, details of a career path, and the relevance of his current and future courses to his vague career path.

12. In considering whether the applicant has met the genuine temporary entrant criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.

13. The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from South Korea. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to South Korea, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to South Korea.

14. The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 13 July 2010 as the holder of a working holiday visa. The proposed study would extend the applicant’s stay until at least February 2023. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.

15. The Tribunal does not place substantial weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First the applicant has given very vague evidence about his future career path. He has provided no substantial details of his proposed career path. He has not explained to the Tribunal’s satisfaction the relevance of his current and future courses to his vague career plans. The applicant has extensive qualifications obtained in Australia and has not explained to the Tribunal’s satisfaction why these qualifications are insufficient to enable him to embark on his vague career path.

16. The Tribunal observes that his current study plans are inconsistent with his plans when he entered Australia.

17. The applicant relies on a statement in which he addresses the various genuine temporary entrant criterion. As discussed above it has been taken into account and given appropriate weight.

18. On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has extensive qualifications obtained in Australia. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.

19. The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.

20. The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between South Korea and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to South Korea. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to South Korea.

21. The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.

22. The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 13 July 2010 the applicant has spent more than 11 years in Australia and returned to South Korea on one occasion for no more than 10 days, he has no significant employment history in South Korea, he owns no assets in South Korea, he appears to have stable employment in Australia, his brother resides in Australia and his infant son resides in Australia, all of which indicates that he does not appear to have strong personal ties to South Korea. On balance, the Tribunal assesses the applicant’s incentive to return to South Korea to be minimal.

23. The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable him to achieve that goal. The applicant was granted several student visas which would have facilitated the applicant’s study in his desired field. On balance it appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.

24. The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

25. On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.

26. There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in South Korea; political or civil unrest circumstances in South Korea; remuneration the applicant could expect to receive in South Korea or a third country compared with Australia; circumstances in South Korea relative to Australia or any other country; and the applicant’s circumstances in South Korea relative to others in that country.

27. 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).

28. 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.

29. 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

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

    Peter Booth
    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;

    d.whether 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.