YOON (Migration)

[2021] AATA 3781

YOON (Migration) [2021] AATA 3781 (13 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms MISEON YOON

CASE NUMBER:  1933726

HOME AFFAIRS REFERENCE(S):          BCC2019/4760368

MEMBER:Elizabeth Tueno

DATE:13 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl.500.212 of Schedule 2 to the Regulations

Statement made on 13 September 2021 at 12:09pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant is currently enrolled – one way ticket to Korea provided – genuine entrant criterion met –new evidence provided – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499

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 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 23 September 2019. The delegate refused to grant the visa on 7 November 2019.

2. The delegate made the decision on the basis that there was insufficient evidence provided by the applicant as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. The applicant appeared before the Tribunal on 10 September 2021 by telephone to give evidence and present arguments.  The applicant was represented by a migration agent, however due to technical difficulties the agent was unable to join the hearing.  The applicant advised that she wanted to proceed with hearing in the absence of her migration agent. 

4. At the hearing, the Tribunal noted that the applicant is currently enrolled in a Diploma of Project Management, which commenced on 2 November 2020 and is to end shortly on 29 October 2021.  The Tribunal questioned the applicant about her plans to return to her home country of Korea.  She said she intends on returning to Korea upon completing this course and find employment as a manager.  She has been planning on returning in November 2021 but was waiting for the hearing at the Tribunal before purchase any flight.  She said she was also having difficulty because of the Covid-19 lockdowns and travel restrictions.

5. The Tribunal advised the applicant that it had looked up available flights returning to Korea in November and that here were a number of flights available.  It asked the applicant to provide evidence of having purchased a one way flight to Korea by the close of business on 13 September 2021 and that in the absence of such evidence, the Tribunal considered that she did not meet the genuine temporary entrant requirement.  However, if such evidence was provided, it would be strong and persuasive evidence that the applicant intended on staying in Australia temporarily and that she would meet the criteria.

6. At approximately 5:50pm on 10 September 2021, the applicant provided an electronic ticket itinerary and receipt dated 10 September 2021.  It confirms that the applicant has now purchased a one way ticket to , Seoul, Korea departing Sydney on 20 November 2021 with Asiana Airlines.  The applicant has paid the airfare, taxes and surcharges.

7. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   DECISION

8. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

   ·cl.500.212 of Schedule 2 to the Regulations

   Elizabeth Tueno
   Member