Chen (Migration)

[2019] AATA 3057

Chen (Migration) [2019] AATA 3057 (25 June 2019)

DECISION RECORD

DIVISION:   Migration & Refugee Division

APPLICANTS:                   Mr Bo Chen
  Ms Xiu Yun Chen

CASE NUMBER:                1720583

HOME AFFAIRS REFERENCE:      BCC2017/1539293

MEMBER:  Dr Jason Harkess

DATE:  25 June 2019

PLACE OF DECISION:        Melbourne

DECISION:  The Tribunal affirms the decision not to grant the Applicants   Student (Temporary) (Class TU) (Subclass 500) visas

Statement made on 25 June 2019 at 4:49pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–genuine temporary entrant criterion not met – determination of application without hearing – 12 years in Australia – strong ties now to the Australian community– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA, 360, 363A, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicants are citizens of China. They seek review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 August 2017 refusing to grant them student visas.

2. The Applicants applied for the visas on 28 April 2017. The Migration Regulations 1994 (Cth) ('the Regulations') classify this type of visa as a Student (Temporary) (Class TU) (Subclass 500) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of section 65 of the Migration Act 1958 (Cth) ('the Act'). If granted, a student visa permits a non-Australian citizen to enter and remain in Australia to study full-time on a temporary basis. An applicant's family members or guardian may also join the application so that they too are issued with visas permitting them to stay in Australia for the duration of the primary applicant's studies.

   [1] See Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 500.1 to 590.612.

3. In this case there are two applicants. It is the Primary Applicant, Mr Bo Chen, who must meet the primary criteria set out in the Regulations relating to the grant of a student visa. The Secondary Applicant, Ms Xiu Yun Chen, is the spouse of the Primary Applicant. A secondary applicant must meet the secondary criteria under the Regulations. The grant of a student visa to a secondary applicant is also contingent on the primary applicant meeting the primary criteria.[2] This means that if the primary applicant fails to meet one or more of the primary criteria, all connected applications brought by secondary applicants must also necessarily fail.

   [2] Migration Regulations 1994(Cth), Sch 2, cl 500.311.

4. The student visas were refused in this case because the delegate found that the Primary Applicant did not satisfy the requirements of cl 500.212 of Schedule 2 of the Regulations. The delegate was not satisfied that he was a genuine applicant for entry and stay as a student. The delegate's reasons are set out in a decision record. A copy of this record was provided to the Tribunal by the Applicants when the review application was lodged on 5 September 2017.

DETERMINATION OF APPLICATION WITHOUT HEARING

1. More than 22 months have elapsed since the making of the delegate’s decision and the filing of the application for review. In coming to consider the merits of the present application on review, the Tribunal recognises the Primary Applicant’s personal circumstances may have changed during that time. The Tribunal considered that it would be beneficial for the Primary Applicant to provide updated and further information to the Tribunal for the purposes of determining his application on review.

2. To this end, by letter dated 7 February 2019 the Tribunal wrote to the Applicants inviting them pursuant to s 359(2) of the Act to provide information that could assist the Tribunal in determining their application for review (‘the Tribunal’s s 359(2) request’). The Tribunal’s s 359(2) request included a questionnaire that specifically invited the Primary Applicant to provide information about his personal circumstances, including:

   ·information about his education history overseas;

   ·information about courses enrolled in previously in Australia, as well as current enrolments since applying for the visa;

   ·information about his work experience overseas and in Australia;

   ·information about previous Australian visa applications;

   ·information about his immigration history in Australia and in other countries;

   ·information about his living expenses in Australia;

   ·information about his family;

   ·information about his property and assets;

   ·information about job plans, including employment plans, when he  finishes his proposed courses;

   ·information about any concerns he may have about military service commitments or political or civil unrest in his home country.

3. The Applicants responded to the Tribunal’s s 359(2) request on 19 February 2019 (‘the Applicants’ s 359(2) response’). Their s 359(2) response included information sought by the Tribunal’s s 359(2) request, by way of a completed questionnaire, as well as documentary materials filed in support of their application.

4. In their completed questionnaire returned as part of their s 359(2) response, the Applicants indicated that they consented to the Tribunal deciding the review application without having a hearing in relation to the application. By the operation of and 360(2)(b) of the Act, in circumstances where the Applicants have consented to the Tribunal deciding the review without the Applicants appearing before it, the Tribunal may proceed to make a decision on review in the Applicant’s absence. Furthermore, the combined effect of ss 360(3) and 363A of the Act is that the Applicants have no entitlement to a hearing and the Tribunal has no power to permit them to appear.[3]

   [3] Hasran v MIAC [2010] FCAFC 40.

5. The Tribunal has therefore decided to proceed to make a decision having regard to all the information before it. This includes the information that was previously provided by the Applicants to the delegate, information that may be discerned from the delegate’s decision itself, and information provided by the Applicants in their s 359(2) response.

6. The criteria for a Subclass 500 Student visa are set out in Part 500 of Sch 2 of the Regulations. The primary criteria in cls 500.211 to 500.218 must be satisfied by the main applicant. Whether an applicant satisfies the criteria is to be determined at the time the Tribunal’s decision is made.[4]

   [4] Migration Regulations 1994 (Cth), Sch 2, cl 500.2.

ENROLMENT CRITERION

1. A student visa application must be founded on evidence of the applicant being currently enrolled in one or more registered courses of study.[5] An applicant must therefore nominate one or more courses run by a registered course provider proposed to be completed in the event of the student visa being granted.

   [5] Migration Regulations 1994 (Cth), Sch 2, cl 500.211.

2. In this case, the Applicants advanced their application on the basis that the Primary Applicant is enrolled in and wishes to study for a Certificate III in English as an Additional Language (‘EAL’), a Certificate IV in EAL, and a Diploma in Leadership and Management. In support of the Primary Applicant’s propose courses of study, the Applicants produced three Confirmation of Enrolment (‘CoE’) documents generated by the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’).[6] The Applicants’ original visa application lodged with the Department was advanced on the same basis.

   [6] The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth). It permits registered course providers to issue CoEs to students upon enrolling in a registered course of study. The COE may then be used by the student when applying to the Department for a student visa. A current COE is treated by the Department as evidence of an applicant currently being enrolled in a registered course of study for the purposes of cl 500.211 of the Regulations. A current enrolment is an essential preliminary requirement that must be satisfied if a student visa is to be granted.

3. The first CoE, bearing reference number 8C7F7674, was generated on 27 April 2017. As at that date, it shows that the Primary Applicant was enrolled in a Certificate III in EAL course at the Zarah Institute of Education (‘Zarah’) with a course commencement date of 1 May 2017 and anticipated completion date of 20 July 2017. On the face of this CoE, that course has been long been completed by the Primary Applicant. Indeed, the Applicants provided a letter dated 11 December 2017 from Zarah which indicates that the Primary Applicant completed the Certificate III EAL course on 11 December 2017. As a past and completed course of study, it no longer represents a current enrolment for the purposes of cl 500.211 of the REgulations. It cannot, therefore, properly form the basis for the Applicants’ case now on review.

4. The second CoE, bearing reference number 8C7F8C91, was also generated on 27 April 2017. As at that date, it shows that the Primary Applicant was enrolled in a Certificate IV EAL course at the same course provider, with a course commencement date of 1 January 2018 and anticipated completion date of 13 August 2018. The Certificate IV course has also been completed by the Primary Applicant, the Applicants providing another letter from Zarah dated 13 August 2018 indicating that he completed that course on 13 August 2018. Again, as a past course of study, this course cannot form the basis for the grant of a student visa.

5. The third CoE, bearing reference number 9D4A1233, was generated on 17 July 2018. AS at that date, it shows the Primary Applicant to be enroled in a Diploma of Leadership and Management course at Zarah. The course commence date is 8 October 2018. The course end date is 7 October 2019. On the face of that CoE, the Primary Applicant is currently studying this course and it appears that this course is a current enrolment. The Applicants provided the Tribunal with a letter dated 15 February 2019 indicating that the Primary Applicant is currently studying in this course on a full-time basis. The Tribunal is therefore satisfied that the Applicant is currently enrolled in at least one registered course of study. The criteria contained in clause 500.211 of Sch 2 of the Regulations are therefore met

GENUINE APPLICANT CRITERION

1. The critical issue in this case is whether the Primary Applicant satisfies the primary criteria contained in cl 500.212 of the Regulations. It states:

   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.

2. Critically, for a student visa application to be successful, the applicant must be ‘a genuine applicant for entry and stay as a student’ in Australia.[7]

Meaning of ‘Genuine’

[7] Migration Regulations 1994 (Cth), Sch 2, cl 500.212.

1. While not explicitly defined in the Regulations, the word ‘genuine’ may be taken to mean ‘real’, ‘true’ or ‘authentic’ (and not ‘phoney’ or ‘feigned’) according to its ordinary and natural meaning.[8] The Regulations also specifically direct the Tribunal to consider two constituent elements of a genuine student visa applicant.

   [8] See the entry for ‘genuine’ in Oxford English Dictionary (Oxford University Press, 2^nd ed, 1989); Macquarie Dictionary (Macquarie Dictionary Publishers, 7^th ed, 2017).

2. First, a genuine applicant is one who ‘intends genuinely to stay in Australia temporarily’.[9] The applicant must demonstrate an intention to stay in Australia for a limited time only – not permanently. That intention must be unqualified.[10] This requirement reflects the temporary nature of being a student. A person chooses to study to meet a passing need to obtain specific skills and formal qualifications that will, in turn, place them in a better position with respect to future employment opportunities. Once they have had a reasonable amount of time to complete their studies (but allowing for unexpected contingencies that may arise), the visa holder should immediately depart Australia. The visa is granted anticipating that the visa holder will eventually cease being a student, return to their home country, and enter the workforce to put their newly acquired skills to economically productive use.

   [9] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(a).

   [10] See Saini v Minister of Immigration and Border Protection [2015] FCCA 2379, [23], upheld on appeal in Saini v Minister of Immigration [2016] FCA 858.

3. Secondly, a genuine applicant is also one who ‘intends to comply with any conditions to which the visa may be subject.’[11] There are several conditions attaching to all student visas.[12] However, the most important of these oblige the visa holder to:

   ·     remain enrolled in a registered course of study;[13]

   ·     make satisfactory course progress;[14]

   ·     attend classes;[15] and

   ·     in the event of a decision by the visa holder to change their enrolment, avoid ‘downgrading’ to a course that will lead to a qualification of a level that is lower than that of the proposed qualification that resulted in the grant of the visa.[16]

   [11] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(b).

   [12] For applicants who satisfy the primary criteria, conditions which are imposed on all student visas are specified in the Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a). They include Conditions 8105 (paid work limitation), 8202 (maintain enrolment in full-time registered course of study, maintain or increase Australian Qualifications Framework level of enrolment in event of course change, attend classes, achieve satisfactory course progress), 8501 (maintain health insurance), 8516 (continuing obligation to satisfy the primary or secondary criter of the visa, as the case may be), 8517 (make arrangements for the education school-age dependants), 8532 (extra requirements for minors) and 8533 (notify education provider of changes of address). Further conditions may also be imposed in appropriate cases under cl 500.611(2). These Conditions are set out in Sch 8 of the Regulations.

   [13] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(a).

   [14] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(c)(i).

   [15] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(c)(ii).

   [16] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(b). The Regulations expressly draw upon the Australian Qualifications Framework (‘AQF’) as the measure for categorising the level of complexity of a student visa applicant’s proposed course of study. The AQF is the policy for regulated qualifications in the Australian education system. It creates a hierarchy of levels associated with courses of study registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course and/or the depth of achievement and the autonomy required that successful completion of the course represents. AQF level 1 (Certificate I) has the lowest complexity and AQF level 10 (Doctoral Degree) has the highest complexity. The AQF is administered by the Department of Education and Training. See generally <

4. These conditions reflect the very essence of being a student. A genuine applicant must demonstrate both an intention to study, and an intention to complete a course at a level of complexity that the original grant of the visa contemplates.

Ascertaining an Applicant’s Intentions

1. Ascertaining an applicant’s intentions for the purposes of clauses 500.212(a) and (b) calls for an inquiry into the applicant’s state of mind. The Regulations direct the Tribunal to consider the applicant’s state of mind as it is at the time the Tribunal makes its decision.[17] That effectively means that the Tribunal must take a ‘snap shot’ of the applicant’s intentions, at that time, to determine whether the criteria under clause 500.212 are met. Nobody has direct access to an applicant’s mental thought processes except for the applicant. The Tribunal must therefore look to other sources of evidence, extraneous to the applicant’s mind, from which reasonable inferences may be drawn as to what the applicant’s actual intentions are most likely to be.

   [17] Saini v MIBP [2016] FCA 858, [30]: ‘What is required is an evaluation of intention at the time of decision, and if at this time there is a settled intention to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention genuinely to stay temporarily.’

2. A convenient starting point is to consider any relevant stated intentions that may have been made by the applicant. The Regulations specifically oblige the Tribunal to take into account an applicant’s stated intentions.[18] Reference may be made to any relevant statements made by the applicant in oral evidence or contained in documentary material before the Tribunal. Consideration may also be given to other statements previously made by the applicant, such as those contained in the applicant’s original visa application lodged with the Department of Home Affairs (‘the Department’, formerly known as the Department of Immigration and Border Protection).

Objective Considerations

[18] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(b)(ii).

1. The expressed intentions of an applicant are not determinative. The Regulations contemplate that declared intentions may be misleading because they are inherently self-serving. All student visa applicants are likely to declare that they intend to stay in Australia temporarily, and to comply with any visa conditions, because that is what the law requires of them. Indeed, it is a standard requirement that an applicant make such formal declarations upon lodging their visa application with the Department. The Tribunal must therefore look beyond an applicant’s stated intentions and consider more objective evidence that may tend to support or undermine an applicant’s declared intentions.

2. In relation to the question of whether an applicant intends genuinely to stay in Australia temporarily, the Tribunal must have regard to the applicant’s circumstances,[19] immigration history,[20] and, if a minor, the intentions of a parent, legal guardian or spouse of the applicant.[21] On the question of whether an applicant intends to comply with the conditions attaching to the visa, the Tribunal must have regard to the applicant’s record of compliance with the conditions of any previous visas issued.[22] These factors have the potential to reveal certain motivations, past behaviours, and tendencies that are likely to inform the Tribunal as to whether an applicant is likely to be a genuine applicant for entry and stay as a student. They may disclose matters that are entirely consistent with an applicant’s claims of being a genuine applicant. On the other hand, they may suggest that the applicant has ulterior motives and might be attempting to obtain a student visa for a purpose it was not designed to serve.

   [19] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(a)(i).

   [20] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(a)(ii).

   [21] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(a)(iii).

   [22] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(b)(i).

1. The issue of whether an applicant intends genuinely to stay in Australia temporarily is of particular concern to the Australian government. The Tribunal must have regard to ‘Direction No 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications’ (‘Direction No 69’) that was issued by the Minister on 1 July 2016.[23] Direction No 69 elaborates upon the regulatory criteria contained in cl 500.212(a) (commonly referred to as ‘the general temporary entrant criterion’). Direction No 69 requires the Tribunal to consider the following:

   [23] Minister for Immigration and Border Protection, ‘Direction No 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications’ (commencing on 1 July 2016).

   ·the applicant’s circumstances in their home country, including:[24]

   [24] Direction No 69, cls 6, 9.

   ▪   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 (consideration should be given to any reasonable motives established by the applicant);[25]

   [25] Direction No 69, cl 9(a).

   ▪   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;[26]

   [26] Direction No 69, cl 9(b).

   ▪   economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country (which may include consideration of the applicant’s circumstances relative to the home country and to Australia, and of the applicant’s circumstances in their home country relative to the circumstances of others in that country);[27]

   [27] Direction No 69, cls 9(c), 10.

   ▪   military service commitments that would present as a significant incentive for the applicant not to return to their home country;[28]

   [28] Direction No 69, cl 9(d).

   ▪   political and civil unrest in the applicant’s home country (which might motivate an applicant to apply for a student visa as a means of obtaining entry to Australia for the purpose of remaining indefinitely).[29]

   [29] Direction No 69, cl 9(e).

   ·the applicant’s potential circumstances in Australia, including:[30]

   [30] Direction No 69, cls 6, 11.

   ▪   the applicant’s ties with Australia which would present as a strong incentive to remain in Australia (which may include family and community ties);[31]

   [31] Direction No 69, cl 11(a).

   ▪   evidence that the student visa programme is being used to circumvent the intentions of the migration programme;[32]

   [32] Direction No 69, cl 11(b).

   ▪   whether the student visa is being used to maintain ongoing residence;[33]

   [33] Direction No 69, cl 11(c).

   ▪   whether the primary applicant and secondary applicant (if any) have entered into a relationship of concern for a successful student visa outcome (eg, where the Tribunal considers that the primary and secondary applicant have contrived a relationship for the purpose of a successful visa application outcome);[34]

   [34] Direction No 69, cl 11(d).

   ▪   the applicant’s knowledge of living in Australia and their intended course of study and the associated 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;[35]

   [35] Direction No 69, cl 11(e).

   ·the value of the course to the applicant’s future, including:[36]

   ▪   whether the applicant 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 (allowing for reasonable changes to career or study pathways);[37]

   ▪   relevance of the course to the student’s past or proposed future employment either in their home country or a third country;[38]

   ▪   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;[39]

   ·the applicant’s immigration history, including consideration of:[40]

   ▪   previous visa applications for Australia or other countries that were granted, that were refused (and the grounds for the refusal), or applications that may yet to be finally determined;[41]

   ▪   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, whether there were circumstances beyond their control;[42]

   ▪   whether the applicant previously held a visa in Australia or another country that was cancelled, or considered for cancellation, and the associated circumstances;[43]

   ▪   the amount of time the applicant has spent in Australia and whether the student 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;[44]

   ▪   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.[45]

   [36] Direction No 69, cls 7, 12.

   [37] Direction No 69, cl 12(a).

   [38] Direction No 69, cl 12(b).

   [39] Direction No 69, cl 12(c).

   [40] Direction No 69, cls 4, 5, 13, 14.

   [41] Direction No 69, cl 14(a).

   [42] Direction No 69, cl 14(b)(i).

   [43] Direction No 69, cl 14(b)(ii).

   [44] Direction No 69, cl 14(b)(iii).

   [45] Direction No 69, cl 14(b)(iv).

2. Direction No 69 also states that weight should be placed on an applicant’s circumstances that indicate that the student visa is intended primarily for maintaining residence in Australia.[46] The circumstances of some student visa applications may require the Tribunal to engage in further scrutiny of the merits of the application, including where:

   ·there is relevant and potentially applicable information in statistical, intelligence and analysis reports on migration fraud and immigration compliance complied by the Department of Home Affairs (‘the Department’, formerly known as the Department of Immigration and Border Protection’);[47]

   ·the applicant or a relative of the applicant has an immigration history of reasonable concern;[48]

   ·the applicant intends to study in a field unrelated to their previous studies or employment;[49]

   ·there are apparent inconsistencies in information provided by the applicant in their student visa application.[50]

   [46] Direction No 69, cl 8.

   [47] Direction No 69, cl 4(a).

   [48] Direction No 69, cl 4(b).

   [49] Direction No 69, cl 4(c).

   [50] Direction No 69, cl 4(d).

3. However, Direction No 69 also stipulates that the factors specified in it should not be used as a checklist. They are intended only as a guide for decision makers, which includes the Tribunal, when they come to consider an applicant’s circumstances as a whole in determining whether the applicant satisfies the genuine temporary entrant criterion.[51] The Tribunal should assess whether, on balance, the genuine temporary entrant criterion is satisfied by considering the applicant against all factors specified in Direction No 69 as well as any other relevant information provided by the applicant or that is otherwise available to the Tribunal.[52] Other relevant information includes information that may be either beneficial or unfavourable to the applicant.[53] Ultimately, the Tribunal should refuse the visa (or, in this case, affirm the delegate’s decision) if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia.[54]

   [51] Direction No 69, cl 1.

   [52] Direction No 69, cl 2.

   [53] Direction No 69, cl 16.

   [54] Direction No 69, cl 5.

4. Direction No 69 is a lawful direction of the Minister made in accordance with s 499 of the Act. The Tribunal is therefore bound to consider it and, to the extent that its terms are relevant, apply it to the Applicant’s case.[55] Accordingly, the terms of Direction 69 and their application to the Applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusion as to the merits of the Applicant’s case, which includes an assessment of how and to what extent each factor in Direction No 69 is relevant and applicable, independently of any conclusions reached by the delegate.

Other Relevant Considerations

[55] FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

1. Finally, it is appropriate to note that the specific considerations referred to in both the Regulations and in Direction No 69 are not exhaustive. The Tribunal may have regard to any other matter that is relevant in determining whether an applicant is a genuine applicant for entry and stay as a student in Australia.

Is the Applicant a Genuine Applicant in this Case?

1. In his original visa application, the Primary Applicant stated that he wishes to undertake the Diploma course so that he can run his own business when he returns to China, a business currently operated by his parents.

2. In the Applicants’ s 359(2) response, the Primary Applicant included a short statement in which he drew attention to the fact that he had completed his Certificate III and Certificate IV in EAL and is now currently studying for his Diploma level course. It is clear that he was conveying the point that such acts on his part, since the Applicants’ student visas were originally refused back in August 2017, demonstrate that he is a genuine student. In that regard, such evidence goes some way towards satisfying the Tribunal that his intentions to comply with the conditions attaching to any student visa that is issued are indeed genuine. The Tribunal considers that it is likely that the Primary Applicant will meet the criteria set out in cl 500.212(b).

3. However, the difficulty with the present application on review is found in considering the application of cl 500.212(a). Both Applicants have now been residing in Australia for almost 12 years. The arrived in Australia in November 2007 having been issued with temporary student visas. From 2009 to 2017 the Primary Applicant applied for further temporary visas, as a dependant applicant connected with his wife’s visa applications as a primary applicant. This, then, draws attention to the fact that the Secondary Applicant in the present applicant on review has also held student visas for the same period of time as a primary visa holder. She was granted her first student visa in November 2007. She was granted subsequent student visas, as a primary applicant, which she used to enrol in courses from community welfare, business, management, printing, graphic arts, children’s services, accounting, hairdressing, salon management and systems analysis. Her husband, the Primary Applicant in the present application on review before the Tribunal, was then a secondary student visa holder.

4. For the last 12 years, the Applicants have effectively resided in Australia on a permanent basis on successive temporary visas. Most of those visas have been student visas, although the Primary Applicant was in Australia on a Visitor (Class FA) (Subclass 600) visa for a short time in 2017. On each occasion that the Applicants applied for these temporary visas, they declared an intention to Australia’s immigration authorities that they intended to remain in Australia temporarily. Yet, on each occasion, that declared intention to depart Australia and return to their home country of China to live never actually manifested into reality. They have remained in Australia.

5. Both Applicants are now 30 years old. They have spent more than one third of their whole life in Australia. They have spent their entire adult lives here. They have a child who is almost 4 years old who was born in Melbourne in July 2015. The Tribunal notes that the child is not a party to the present application on review and the Applicants have not sought to explain why they do not seek to include their child as a dependant visa applicant. They now come before the Tribunal declaring, yet again, an intention to remain in Australia temporarily and to depart following completion of the Primary Applicant’s Diploma course. There is no credibility to be found in these declarations.

6. It is reasonably clear that the Applicants have established a satisfactory life in Australia and would probably prefer to remain living here on a permanent basis. The Tribunal also notes that the quality of life in Australia is rated extremely high by the United Nations Human Development Index, as compared to China’s. By any objective assessment, it is understandable why the Applicants may prefer to remain here rather than return to their home country. The fact they have left Australia in the last 12 years infrequently, suggests that they have strong ties now to the Australian community.

7. The Tribunal does not consider the ties that the Applicants may have to their home country of China to be a significant incentive for them to return. However, the Tribunal notes that the Applicants are also unlikely to be deterred from returning to China due to political or civil unrest or possible compulsory military service, issues which do not appear to be of any consequence in this case.

8. The Tribunal’s concerns are not allayed by the possible value that the Primary Applicant’s proposed Diploma course might offer him in terms of future career value. The Primary Applicant has not articulated any cogent reason for undertaking this course and has failed to demonstrate to the Tribunal’s satisfaction that this qualification will be of value to him upon his return to China. His reference to running his own business in China was vague and lacked any specificity.

9. The Tribunal notes that, apart from their immigration history in Australia, they do not have appear to have any concerning immigration history in other countries. However, this is of little import having regarded to the sheer length of time they have remained in Australia on a purported ‘temporary’ basis.

10. In all the circumstances, the Tribunal does not consider the Primary Applicant to be a genuine applicant for entry and stay as a student in Australia. The Tribunal is of the view that the Applicants are attempting to use the student visa program to maintain ongoing residence. This is not a legitimate purpose for which student visas can be granted.

DECISION

1. The Tribunal affirms the decision not to grant the Applicants Student (Temporary) (Class TU) (Subclass 500) visas.

Dr Jason Harkess

Member