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Myung (Migration) [2018] AATA 4063 

Tribunal: Member David Barker

A delegate of the Minister for Immigration and Border Protection refused to grant the applicant a Student visa because there was insufficient evidence that the applicant was a genuine temporary entrant. The applicant applied to the AAT for a review of this decision.

The applicant first arrived in Australia in 2006 on a Working Holiday visa and was subsequently granted a Student visa in 2008. The applicant initially enrolled in courses in English, printing and management. Next, the applicant enrolled in accounting, ministry and music courses. The Department found that the applicant had enrolled in seemingly unrelated courses, with limited course progression, and significant gaps in the applicant’s study history. The Department requested evidence of course completion from the applicant and after receiving no reply refused to grant a further Student visa.

The AAT requested that the applicant attend a hearing and provide evidence of his course completion, an explanation for the gaps in his study, and any other relevant information. In answering the AAT, the applicant explained that his intent was to join the church on his return to South Korea and the seemingly random subject choices were with the intent to publish Christian magazines and story books for children.

One of the criteria for a Student Visa is the applicant is a genuine temporary entrant. The criteria broadly provides that the decision maker must be satisfied the student genuinely intends to stay in Australia temporarily, having regard to the applicant’s circumstances, immigration history and any other relevant matter.[1] In addition to these criteria the AAT is also required to consider Direction No.69.[2]

The AAT considered the submissions and oral evidence provided by the applicant and found the applicant did not satisfy the genuine temporary entrant criteria.  The AAT found the applicant’s migration history was not one of a person with a genuine intention to remain temporarily in Australia and the applicant’s explanation for the varying course choices was not convincing. The AAT did find that the applicant had strong family ties and financial assets indicative of someone who may return at some stage; however, this provided limited weight in the decision. The AAT concluded that the applicant’s ties to South Korea did not outweigh its other findings.

Having regard to all the evidence provided cumulatively, the AAT concluded that it was not satisfied that the applicant intended to genuinely stay in Australia temporarily.

The AAT affirmed the decision to refuse to grant the applicant a Student visa.

Read the full written decision on AustLII.

 

[1] Clause 500.212 of Schedule 2 to the Migration Regulations 1994