1817049 (Migration)

1817049 (Migration) [2020] AATA 2071 (21 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1817049
MEMBER:Peter Booth
DATE:21 February 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 21 February 2020 at 8:13am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – no current enrolment – multiple courses partially completed – plans to work and reside in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212; Direction No 69
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 May 2018 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 28 March 2018. 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.
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 the applicant was not a genuine temporary entrant.
The applicant appeared before the Tribunal by telephone on 14 February 2020 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)
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?
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.
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.
The applicant gave evidence at the hearing the substance of which was as follows. The applicant had read the delegate’s decision dated 23 May 2018 refusing his application for a student Visa. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.
The applicant is currently enrolled in an advanced diploma of [Subject 1] which commenced on 13 January 2020 and which is expected to be completed on 10 January 2021. The applicant produced a confirmation of enrolment to corroborate that evidence. The Tribunal enquired when the applicant had enrolled in the course to which he said “13 January 2020. The Tribunal enquired when the applicant had applied to enrol in the course to which he said “I don’t know”.
The applicant arrived in Australia [in] October 2012 as the holder of a “visitor” visa. He said the visa was valid for one year and that he was permitted to stay in the country for periods of up to three months. The Tribunal enquired as to his declared period of stay to which he said “three months”. The Tribunal enquired what the applicant had done in this period to which he said “I spent time with my auntie and looking at schools”. The Tribunal enquired as to the purpose of his travel to Australia to which she said “to visit Australia, to see if there was an opportunity to stay in Australia”. The Tribunal enquired whether he had left Australia after the three months to which he said “no”.
The applicant said that he applied for a higher education visa in November 2012. The Tribunal enquired as to the course in which he had enrolled to which he said “diploma of [Subject 2] and advanced diploma in [Subject 2]”. The Tribunal enquired when he had enrolled in these courses which he said “after two months”.
The Tribunal then proceeded to ask the applicant questions regarding his study history in Australia. He said that he completed an advanced diploma of [Subject 2] between July 2013 and December 2014 and then enrolled in but did not complete a bachelor of [Subject 3]. This apparently commenced in July 2015. The Tribunal enquired what the applicant had done between December 2014 and July 2015 to which he said “I was waiting for school to start”. The Tribunal enquired whether the applicant abandoned the bachelor of [Subject 3] course or was excluded by the course provider. The applicant said “I abandoned it due to mental illness at that time”. The Tribunal enquired when he had abandoned the course to which he said “after September 2016”. The Tribunal enquired whether he had any medical evidence regarding the mental illness to which he said “yes”. The applicant’s migration agent, [Representative A] identified the documents upon which the applicant relied as the letter from [Doctor A] dated 27 August 2017 and a further letter from [Doctor B] dated 9 April 2019. The Tribunal refers to these documents subsequently.
The applicant then enrolled in a bachelor of [Subject 4] in March 2018 but did not complete it. The Tribunal enquired whether the applicant had abandoned this study to which he said “I applied for deferral but it got rejected”. The Tribunal enquired when his application for deferral had been rejected to which he said “I cannot remember”.
The Tribunal enquired what the applicant did thereafter to which he said “I was suffering from mental illness, I try to re-enrol but it was refused, this was early this year, the rejection was in May last year”. In answer to a question from the Tribunal he said that since December 2014 he had not completed a course of study. He further confirmed that during that period he had enrolled in but did not complete a bachelor of [Subject 3] and commenced a bachelor of [Subject 4]. The applicant enrolled in the advanced diploma of [Subject 1] course which commenced on 13 January 2020. The Tribunal observed that the applicant’s study history was somewhat checkered from December 2014 to January 2020 and invited the applicant to address the Tribunal on that point. In a lengthy response he said “I wanted to escape from my father, he beat me up, in 2012 the father burned my Hong Kong ID, I chose to live with my godfather, and I went to Australia, in 2015 my father died, emotional issues after he died, after my father’s death and living in public housing, needed to renew the landlord, returned to Hong Kong and signed documents, Hong Kong government wanted to take my house back, I wanted to put my mother’s name on the tenant list, I was suffering from different mental illnesses, [Medical Condition 1], depression, gave up on study, my mind was in chaos, after I added my mother name back on the tenant list, resume my study, after that [Medical Condition 1] and mental situation one stable after the second semester, I was afraid to go out, I did not want to see anyone, I tried to defer, but that was refused, there are riots in Hong Kong, protest near my house, Mum says it is not safe, she came to Australia on two occasions, the [Medical Condition 1] is gone, my mental condition is prepared for the next study”.
The Tribunal enquired as to the applicant’s employment intentions when he returns to Hong Kong to which she said “I will try to find a bachelor course to continue study in Australia, it is not my intention to leave Australia once I complete the advanced diploma of [Subject 1]”. The Tribunal enquired as to the applicant’s intentions after he completed the current course to which he said “I took this because I have no bachelor offer from any institution”. The Tribunal enquired what bachelor’s degree he was intending to study after he completed the current course to which he said “bachelor of [Subject 5] or bachelor of [Subject 4]”. The Tribunal enquired how long he expected these courses to complete to which he replied that he expected after credits for existing studies that they would take approximately 18 months to complete.
Since arriving in Australia the applicant has returned to Hong Kong on four occaisions, for periods ranging between six days and four months.
The applicant’s immediate family in Hong Kong comprises his mother. The applicant’s aunt resides in Australia. The applicant has no assets in Hong Kong.
The Tribunal enquired whether the applicant could undertake the advanced diploma of [Subject 1] in Hong Kong to which he said “not confident with current academic record”.
The applicant is not currently employed in Australia and has not been employed in Australia since he arrived. The Tribunal enquired how he was supporting himself to which he said “my godfather support in the beginning my aunt takes responsibility on a daily expenses”. The Tribunal enquired who was paying his tuition fees to which he said “my godfather and my aunt”.
The applicant was invited to add anything further to his application to which he said “I know that the academic record is poor, I don’t know what I was doing, have regular chest pain and insomnia, depression, even now, I am able to undertake a bachelor course”.
The Tribunal turns to the medical evidence provided by the applicant. The first is a letter from [Doctor A] dated 27 August 2017. Relevantly the letter states as follows:
This letter is to certify that [the applicant], [an age] year old student, who is a patient of mine for the past 4 years.
He has been suffering from chronic fatigue and dizziness for many years due to [Medical Condition 2] since birth. He also has chronic, recurrent [symptoms] due to chronic [Medical Conditions 1 and 3] for more than 5 years. He was treated with [named medications] daily.
Recently, since September 2016 until present time, [the applicant] has been suffered from severe depression and anxiety disorder due to the dispute of his late father's will and the housing ownership issue which his mother had no ownship to the property so she had nowhere to live. [The applicant] had to fly back to Hongkong to fix up the housing ownship issue so that his mother had a place to live. He was treated by me with Counselling, psychotherapy on how to deal with his anxiety and depression.
To my knowledge, he is a good character, a hard working student and a good son in a well respected, kind family. [The applicant] has been so depressed and anxious about his father's health which could greatly affected his concentration and his study since last year until now.
In view of his medical illnesses and special family circumstances, please grant him a special consideration so that he can continue his study. Thank you very much for your consideration.
The Tribunal makes a number of observations in relation to this medical report. First, it appears from the author’s credentials that he has medical qualifications and is a general practitioner. It is not obvious that he is the holder of any qualifications in psychology or psychiatry. Secondly the applicant made no mention of chronic fatigue, dizziness or [Medical Condition 2] contrary to the medical report. However the medical report does state that the applicant has suffered from [Medical Conditions 1 and 3] for “more than five years”. It appears that from September 2016 until August 2017 the applicant suffered from “severe depression and anxiety disorder” and that [Doctor A] has treated him for this. Finally that the applicant has been depressed which has affected his study “since last year until now”. The Tribunal accepts that the applicant has suffered from [Medical Condition 1] and other conditions which affected him and his ability to study. The extent to which and the timing of which are unclear. [Medical Condition 1] appears to have been an issue for five years prior to 27 August 2017 but it is not stated in the medical report that it precluded study at times or at all. The applicant’s mental health issues however appear to have been persisting for the previous year and have affected his ability to study.
The second report is that of [Doctor B] dated 9 April 2019. In that report it is stated that the applicant was examined on 19 April 2019 “…and he is having mental health symptoms as well as [a medical condition]…. stated his symptoms are severe that it’s difficult to concentrate for his study – semester 1 2019. He’d like to stay with his aunt and would like to prepare for the next one while he is seeking treatment for his mental health. Please kindly consider his request so that he could have managed his mental health condition better (sic)”. The Tribunal makes several observations in relation to this report. First it is not apparent that the author has qualifications in psychology or psychiatry. Secondly it appears to relate to a single consultation on 9 April 2019. Next it appears that the applicant informed the author that the applicant was having difficulty studying in “semester one 2019”. It is not clear whether this difficulty was due to a [medical condition] or mental health or both. It is not clear whether this condition precluded study at all. It is not clear whether this difficulty in studying persisted and if so for how long. The Tribunal accepts that the applicant has suffered from a [medical condition] and from some mental health issues. However this medical report does not assist in identifying the extent of those conditions, the duration, the timing and whether and to what extent they interfered with or precluded study.
The applicant’s migration agent, [Representative A] was invited to make submissions. In his very helpful submissions [Representative A] made a number of points. He said that it was an unfortunate case and that his client had made a genuine effort to study. He said that his client studied for about one-and-a-half years and then returned to Hong Kong in February 2015 for about four months. However since that time [Representative A] said that the applicant had been quite successful in his study. He drew the Tribunal’s attention to an academic transcript in respect of the bachelor of [Subject 3] degree which demonstrated that the applicant had passed 6/7 subjects in the Bachelor of [Subject 5] course. [Representative A] also drew the Tribunal’s attention to a similar document in respect of the bachelor of [Subject 4] course which showed that the applicant had passed 6/8 subjects in that course, apparently in semesters one and two in 2018. The Tribunal accepts this evidence.
[Representative A] continued and said that there were other issues which caused his client not to study. He referred to a depressive illness in 2016, and the need to return to Hong Kong to resolve housing issues. [Representative A] observed that his client had applied for a visitor visa and travelled to [Country 1]. This apparently occurred in September 2017. This had not been the subject of evidence from the applicant although the Tribunal notes that it was briefly referred to by [Representative A] in a written submission dated 6 February 2020. [Representative A] also observed that the applicant had apparently applied for a number of courses but was rejected but that he did want to study in future.
The Tribunal observed that during the period approximately December 2014 to January 2020 the applicant had an extremely checkered study history. [Representative A] agreed. The Tribunal observed that there appeared to be several reasons why the applicant had a poor study record during this period, the first was [Medical Condition 1], secondly mental health issues of some description and the need to travel to Hong Kong to resolve housing issues for his mother. However the Tribunal observed that the periods and the extent to which the applicant was unable to study during this time was far from clear. [Representative A] agreed.
[Representative A] also said that he would provide an email which his client had received in relation to an application to defer a course. Subsequent to the hearing [Representative A] provided an email from “[College 1]” dated 10 January 2020 addressed to the applicant which stated “while assessing your application, we regret to advise you that your application has been unsuccessful due to the following reasons; no further documents provided…” The email does not identify the course that is being considered, or the nature of the application made by [the applicant]. However the Tribunal observes that the communication is dated 10 January 2020 and is not in respect of, on its face, the period of poor study history between late 2014 and January 2020.It is given little weight.
[Representative A] had also provided to the Tribunal a letter dated 6 February 2020 in which some documents were supplied and some general submissions made in respect of his client’s application for review. The submission is in the following terms:
The applicant first came to Australia in October 2013 on a visitor visa. He applied for and was granted a student visa to study a Diploma and Advanced Diploma of [Subject 2] which was completed in December 2014. The applicant's father had died in October 2014. He had left [the applicant] as the beneficiary of a leasehold property in Hong Kong. [The applicant] spent the early part of 2015 largely in Hong Kong addressing legal disputes arising from his mother's occupation of the property.
[The applicant] applied for and was granted in or about September 2015 for the purpose of undertaking a Bachelor of [Subject 5] at [a named university]. He completed 2 semesters up until mid 2016. At this stage we are instructed that he developed depressive illnesses associated with uncertainties over his mother's situation in Hong Kong and chronic [Medical Condition 1]. We note that [the applicant] did not study for the period July 2016 to June 2017 when he left Australia for 2 to 3 months. He spent most of this time in Hong Kong where he was able to procure the addition of his mother to the lease ( death certificate of father and lease documents attached - note the handwritten notation on page 5 adding his mother to the lease and dated 9 August 2017.
[The applicant] returned to Australia. He then visited [Country 1] and obtained a new visitor visa. After returning to Australia [the applicant] sought advice about resuming his studies and was able to gain admittance to [College 1] to study a Bachelor of [Subject 4] to commence in March 2018. In March 2018 he commenced studying at [College 1] but ceased at the end of 2018. At that point we understand that he intended to re-enrol at the commencement of 2019 but his ongoing health issues prevented him from doing so. We are instructed that he intended to return to Hong Kong at that time but when the political unrest started in Hong Kong in March 2019 he deferred a return for treatment.
[The applicant] has now enrolled in an Advanced Diploma of [Subject 1] at [College 2]. We understand that this was the only enrolment he was able to procure having regard to his past study record. Our instructions are that his intent is to endeavour to transfer back to a Bachelor of [Subject 5] at the earliest possible opportunity and he understands that he will need to study hard and attain good marks if he is to be accepted into a university in Sydney.
We note that we are still awaiting the following documents:-
1. [College 1] records
2. Medical report from the applicant’s treating doctor. We are instructed that [the applicant’s] doctor is on leave until 10 February 2020.
We shall supply any further documents we receive next week as soon as practicable.
In relation to the specific issues relating to the Genuine Temporary Entrant requirement we note that the primary issue is the applicant's immigration history. We have endeavoured to demonstrate that the noncompliances by [the applicant] in failing to maintain an enrolment have been as a result of ill health both mental and physical. We are instructed that [the applicant] is committed to finishing his studies in Australia at a Bachelor level. We note that when [the applicant] has been able to study his marks have been reasonably good.
[The applicant] has his mother living in Hong Kong. He does have an aunt in Australia. [The applicant] has concerns about studying in Hong Kong having regard to recent events at Hong Kong universities.

The submission has been taken into account but, as is apparent, it does not resolve the paucity of evidence in relation to the applicant’s reasons for not studying during the period December 2014 to January 2020. The submission, amongst other things, attached a death certificate in respect of [the applicant’s father], a male of [age] years who died of [specified cause]. The date of death is not recorded on the certificate but it appears to have been registered [in] October 2014. The Tribunal assumes this is a death certificate in respect of the applicant’s father. However it does little to explain the interrupted study between December 2014 and January 2020. Nonetheless the Tribunal has taken into account the submissions, both in writing and at the hearing, of [Representative A] and given them appropriate weight.
In considering whether the applicant has met the genuine temporary entry 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.
The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from Hong Kong. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. When considering the applicant’s circumstances in his home country, the Tribunal therefore 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 proposed study. However, although the Tribunal accepts that the applicant may have family ties to Hong Kong, given 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 Hong Kong.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia [in] October 2012 as a holder of “tourist” visa valid, apparently for stays of up to three months during a 12 month period. The proposed study would extend the applicant’s stay until at least January 2021. However the applicant wishes to undertake a bachelor course in either [Subject 5] or [Subject 4] thereafter which he expects would take approximately 18 months to complete having regard to subjects he has already studied. If his estimate of the time it would take to complete his study is correct it would extend the period of study until approximately July 2022. The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia. Whilst the Tribunal accepts that plans can change, this is not the conduct of a genuine temporary student. Rather, it suggests the applicant has decided to extend his stay in Australia by utilising the student visa programme.
The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. The applicant gave extremely vague evidence in that regard.
The Tribunal has considered the applicant’s study history since arrival and notes that he commenced study in Australia in 2013. Apparently he completed an advanced diploma of [Subject 2] in December 2014. Since that time the applicant has not completed a course of study. He completed, apparently, two semesters of a bachelor of [Subject 3] degree and, apparently, two semesters of a bachelor of [Subject 4] degree. It seems that his last period of successful study was in December 2014. He enrolled in the current course which commenced on 13 January 2020. The applicant made it clear that this was not his preferred area of study but that he enrolled in it because he could not obtain an enrolment in any other course of his choice. It is for that reason that he said that once he completes this course he intends to apply for a bachelor of [Subject 5] or bachelor of [Subject 4] degree. Much time was spent at the hearing discussing the applicant’s study history between December 2014 and January 2020. The applicant advanced several reasons, [Medical Condition 1], mental health and the need to assist his mother in respect of her accommodation in Hong Kong. The Tribunal accepts these matters and the documents which the applicant has produced. However the Tribunal is not satisfied that the extensive period of unsuccessful study can be reconciled with these reasons in any meaningful way such that the entire period is adequately explained. Whilst the Tribunal is sympathetic to the applicant, the Tribunal does not accept that the poor study history for an extended period of time can be reconciled with the conduct of a genuine temporary entrant.
The Tribunal notes that this course plan is inconsistent with the applicant’s plans when he initially entered Australia. He arrived in Australia as the holder of a tourist visa, apparently intending to stay for three months. The applicant now wishes to pursue an advanced diploma of [Subject 1] in Australia. Thereafter he intends to apply for, and if accepted, embark on a bachelor of [Subject 5] degree or a bachelor of [Subject 4]. This course of study will, on his estimation, require him to stay in Australia until at least July 2021. The course is asserted to have relevance to very vague future plans. This is not the conduct of a genuine temporary entrant.
The applicant has, by his migration agent, provided a submission in which he attempts to address the genuine temporary entry criterion. It has been taken into account and given appropriate weight.
The Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, and considering the cost of the study. The Tribunal therefore is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds.
The Tribunal has given regard as to whether there is any other relevant matter. 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.
The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.
The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in the applicant’s home country relative to the applicant’s potential circumstances in Australia. Given the disparity in economic circumstances between Hong Kong and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to Hong Kong. The applicant has been unable to demonstrate substantial ties or personal assets in the applicant’s home country which diminishes the applicant’s incentive to return to Hong Kong.
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 the applicant’s proposed study which will outweigh the significant time and monetary commitment this course will require. Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of the applicant’s proposed course to the applicant’s future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia [in] October 2012 the applicant has spent in excess of seven years in Australia and returned to Hong Kong on four occasions for periods ranging between six days and four months. This strongly suggests that the applicant does not appear to have strong personal ties to Hong Kong. Based on this evidence the Tribunal assesses the applicant’s incentive to return to Hong Kong to be minimal.
On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for a 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 the applicant to achieve that goal. It therefore 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. The Tribunal has also given regard as to whether there is any other relevant matter, and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily. The Tribunal has considered all information provided by the applicant in support of the applicant’s application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in the applicant’s home country, potential circumstances in Australia, the value of the proposed course to the applicant’s future, the applicant’s immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and overall academic progress. The applicant appears to be 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.
There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: economic circumstances of the applicant; any potential military service in Hong Kong; political or civil unrest circumstances in Hong Kong; remuneration the applicant could expect to receive in Hong Kong or a third country compared with Australia; circumstances in Hong Kong relative to Australia or any other country; and the applicant’s circumstances in Hong Kong relative to others in that country.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be being used primarily for maintaining ongoing residence.
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).
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.
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
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;
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.

[2020] AATA 2071

21 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice