Chen (Migration)

Chen (Migration) [2022] AATA 2193 (23 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Yu-Ling Chen
CASE NUMBER:  2115634
HOME AFFAIRS REFERENCE(S):          BCC2020/891823
MEMBER:Peter Booth
DATE:23 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 23 June 2022 at 11:49am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – arrived most recently on tourist visa intending to study – enrolments at lower levels than previous study in home country – no vocational or diploma course completed – vague and disjointed evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
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 22 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 8 January 2021. 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 (Cth) (the Regulations) because the applicant was not a genuine temporary entrant.
The applicant appeared before the Tribunal on 20 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision 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 22 October 2021 refusing her application for a student visa.
The applicant understood that the issue for determination was whether she was a genuine temporary entrant.
The applicant was asked to describe her current enrolment including commencement and completion dates. The applicant said “previously I had English language course start 31 January in 6 March going forward still have professional English course start 25 April finish 17 July”. She was asked whether she was enrolled in any other courses. She replied “Diploma Business yet to start”. The applicant was invited to provide the start and finish dates of the course. She said “start 1 August and finish 19 November next year”. She added “after that Advanced Diploma 17 November 23 and in 16 March 25”. She was asked whether she had a Confirmation of Enrolment document in respect of the last course. She said “yes”. She was asked when she received that document. She replied “January or February”. The Tribunal invited the applicant to supply a copy of that document subsequent to the hearing. She agreed to do so.
The applicant had produced three Confirmation of Enrolment documents to the Tribunal in respect of the following courses: a General English course conducted between 31 January 2022 and 6 March 2022; English for Academic Purposes course conducted between 25 April 2022 and 17 July 2022 and a Diploma of Business conducted between 1 August 2022 and 19 November 2023. Notwithstanding the vague nature of the applicant’s evidence the Tribunal accepts that she is enrolled in the courses described in the Confirmations of Enrolment.
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.
The applicant completed a course described as “Hospitality Management” in Taiwan between September 2011 and June 2015. The applicant stated that she was employed in “sales” in Taiwan between July 2015 and June 2018.
The applicant arrived in Australia on 18 January 2013. She stated that she returned to her home country in January 2014 for four years.
The application for the student visa in question was made in January 2021. She stated her visa history to be as follows: she held a “working holiday” visa between January 2013 and January 2014, a “tourist visa” between July 2018 and October 2018 and a “student visa” between November 2018 and January 2021.
The applicant stated her study history in Australia to be as follows: she completed a Diploma of Leadership and Management between November 2019 and July 2020, and a General English course between November 2018 and October 2019. She had a future enrolment in a Diploma of Business due to commence in August 2022 and be completed in November 2023, a future enrolment in an English for Academic Purposes course due to start in April 2022 and be completed in July 2022 and was “studying now” a General English course which commenced in January 2022 and was due to be completed in March 2022.
The applicant stated that she was employed as a waitress at various firms from April 2020 to date. She did not disclose details of her income.
The applicant stated that her father resides in Taiwan.
The applicant did not disclose ownership of any assets in Taiwan.
As to her future employment plans the applicant stated: “I have decided to continue studying in Australia and have now enrolled in General English, English for Academic Purposes and Diploma of Business because I want to cement my English skills and have qualifications in Business as this will be beneficial in my career growth especially since I am returning to Taiwan to continue my career in hospitality management. Getting an additional degree from a quality school in Australia will provide me with the experience and knowledge needed to better understand how to operate and manage a business, the courses will teach me on how to Implement WHS policies, financial reporting, developing and using complex spreadsheets, problem solving, basic leadership skills and much more. The courses will not only improve my knowledge but will also develop my skills on handling certain tasks and roles within a business. Aside from these, I believe the school that I have personally selected will be a great institution in helping me reach my objectives”.
The applicant did not provide details of her expected future remuneration .
The Tribunal proceeded to ask the applicant some questions arising from the responses above. The questions and the answers, in summary were as follows.
When asked to describe the nature of her employment in Taiwan, described as “sales” the applicant said “general hospitality”. She was asked whether she meant she was employed as a waitress. She said “yes”.
The Tribunal asked whether her working holiday visa expired in January 2014. The applicant said “yes”. She was asked when she returned to Australia as the holder of a tourist visa. She said “16 July 2018”.
She was asked to describe her employment in Taiwan during the period 2014 until 2018. She said “return to Taiwan to complete my study and work for one or two years after that”. She was asked what study she had completed in Taiwan between 2014 and 2018. She said “I study hospitality management and after I completed I work for one or two-year store manager in drink store, I discussed with parents about business study”. She was asked when she returned to Australia and how long she intended to stay. “For two or three year I intend to complete business study, then change course to management”.
When asked what visa she held when she returned to Australia in 2018 she said “at the time I was holding visitor visa, I was discussing with family about studying, I applied for visitor visa, then if things work out”. She was asked whether she arrived as a tourist in Australia with no return flight date. She said “I did book a flight in three months’ time, then I found institution, so I did not return”.
She was asked to state if the purpose of this visit to Australia was as a tourist. She said “my purpose was to see if I could find a suitable institution and study here otherwise I would stay as tourist, I wanted to check out environment, I wanted to see if I could fit in lifestyle plans to apply for tourist visa first, then to apply for education institution”.
The applicant was asked when she had applied for enrolment. She said “around two months ended August close to September”. When asked what course she intended studying at that time she said “it was not very strong, so decide to do language course and then Diploma of Business”.
The Tribunal observed that she completed an English language course between November 2018 and October 2019. The applicant agreed. The Tribunal observed that she then completed a Diploma of Leadership and Management between November 2019 and July 2020. The applicant said “I didn’t remember transferring”. The Tribunal asked whether she had completed the course in July 2020. She responded “not really only English course”. The Tribunal observed that she stated that she completed the Diploma of Leadership and Management between November 2019 and July 2020. The applicant said “it was true”. She was asked whether she had a Certificate of Completion of the course. She said “I don’t have, I cannot say, I did attend the course, a transfer then missed later”. She was asked whether she completed the Diploma of Leadership and Management course. She said “no”. She was unable to say when she stopped studying that course. She said “around beginning 2020 or mid-2020”. She was unable to give any further details. The Tribunal invited the applicant to provide a concise summary of her study history subsequent to the hearing. She agreed to do so.
The Tribunal observed that the next course she enrolled in was a Diploma of Business which commences in August 2022. The applicant agreed. She was asked whether she was currently studying. She said “I’m attending English language course”. She was asked whether she had Confirmation of Enrolment documents in respect of that course. She said “yes”. When asked to state these commencement and completion dates she said “a previous basic course started on 31 January 2022 and finish 6 March 2022, going forward a professional in this course start on 25 April 2022 and finish on 7 July 2022”. The Tribunal confirmed that such a Confirmation of Enrolment document had been provided.
The Tribunal returned to the Diploma of Leadership and Management course and observed that the applicant now said she did not complete the course but ceased study in early 2020 or mid-2020. She said “for this course I just finished language course, I started this, but difficult to keep up, I told my family I could not continue, then I sought technical course of massage, so I changed track, I want to learn new skills”. She was invited to explain her enrolment in the massage course. She said “I did not finish it either, I can supply information, a Certificate III or IV start 9 July 2021 and finish 13 August 2022”. She was asked when she stopped studying that course. She said “in October of last year 2021”. She was asked whether she wanted to say anything about that point. She said “initially thought would be easy but when studying, involve professional medical skills, I had no knowledge, so I thought I might go back to business course”.
The applicant was asked how many courses she had successfully completed since she returned to Australia. She said “none at all, for all courses, I start to find difficult, because English was not strong to begin with”.
The Tribunal observed that she had completed an English course between November 2018 and October 2019. The applicant said “yes only that one”.
The Tribunal asked the applicant why she thought she could study in Australia if her English language comprehension was inadequate. She said “because I thought it was a diverse environment maybe I could learn English here, better than in Taiwan”.
She was asked whether she is currently employed. She said “just some cash work in free time”. She was also asked to state the nature of her employment and her income. She said “in same industry, hopefully work in kitchens, weekly about $700 or $800”.
The Tribunal observed that she had changed the direction of her studies from that completed in Taiwan and invited her to explain. She said “I want to start a business in Taiwan I want to enhance knowledge”. She did not elaborate.
When asked whether she owned assets in Taiwan she said “no”.
Lastly the applicant sustained her employment intentions when she returns to Taiwan. She said “to see if I could open a small business, beverage shops in Taiwan, thinking of opening a chain store or franchise store”. She was invited to explain the nature of the business and replied “beverage shop or maybe a restaurant”.
The applicant declined an opportunity to add anything further to her application for review.
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 applicant provided a statement to the Department in support of her application for review. The statement is unsigned, 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. In this document the applicant states that she completed a Bachelor’s degree in hospitality in Taiwan in January 2018. She also stated that she had changed her intention in relation to study and enrolled in a massage course. The purpose of this was stated to be “final objective of my career plan is to be a professional massage master that I can manage my own massage shop in Taiwan”.
The applicant provided several documents subsequent to the hearing. A resume was provided in conventional form. Secondly several enrolment documents, most had previously been provided, save for one in respect of an Advanced Diploma of Business to be conducted from 27 November 2023 until 16 March 2025. Thirdly a letter dated 11 April 2022 from a course provider stating that she is currently enrolled in a General English course conducted from 31 January 2022 until 6 March 2022 and an English for Academic Purposes course to be conducted between 25 April 2022 and 17 July 2022. Despite agreeing to do so the applicant did not provide a concise study history of her study activities in Australia.
CONCLUSIONS
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.
Without diminishing the applicant’s evidence, it can be summarised as follows.
The applicant completed a catering management course in Taiwan between 2008 and 2011 and the second such course in Taiwan between 2011 and 2015. Having arrived in Australia as the holder of a working holiday visa in January 2013 she returned to Taiwan in January 2014. Thereafter she returned to Australia on 16 July 2018 as the holder of a tourist visa. She said that her purpose was either tourism and also to “apply for education institution”. She held a student visa between November 2018 and January 2021. The application for the student visa in question was made on 8 January 2021.
The applicant has a poor study history. Since holding her first student visa in 2018 she has completed three English language courses. She has also enrolled in but not completed a Diploma of Leadership and Management and a Massage course. Details of this later course was not provided. She is currently studying a further English language course. Thereafter she intends to study a Diploma of Business and an Advanced Diploma of Business between August 2022 and March 2025. However, having regard to her past study history there is a reasonable doubt as to whether she will complete either or both these courses.
The applicant has not explained to the Tribunal’s satisfaction why she changed the direction of the study from that completed in Taiwan, why she did not complete a Diploma of Leadership and Management course and a Massage course in which she was enrolled in Australia, why she has changed the direction of study in Australia on three occasions, why she has not returned to Taiwan since arriving in 2018 and why she did not return to Taiwan when her most recent student visa applications were refused.

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 she has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in her home country. The applicant is unmarried and is from Taiwan. The applicant has provided evidence of social, direct family and financial ties to her home country or other economic incentives to return. The Tribunal finds that she has been able to demonstrate ties to act as an incentive to return to her home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to Taiwan, 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 Taiwan.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant arrived in Australia on 16 July 2018 as a holder of a tourist visa valid for one year. The proposed study would extend the applicant’s stay until at least March 2025. 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 her 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. There are several reasons for this. Firstly the applicant has provided extremely vague evidence in that regard. Secondly she has not explained to the Tribunal’s satisfaction the relevance or utility of her future courses to her vague plan of opening a beverage shop or perhaps a restaurant. Thirdly she has provided no details of her vague career plan. Lastly having regard to her poor study history in Australia there is a reasonable doubt as to whether she will complete her future study.
The Tribunal observes that her study plan is inconsistent with her plans when she entered Australia.
On balance, the Tribunal is not satisfied that the applicant has established that study will provide her with significant benefits in her proposed career plan, considering the cost of the study and the fact that the applicant already has qualifications and experience obtained in Taiwan which appear relevant to her vague career plans. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to her career beyond the existing qualifications.
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.
The Tribunal has considered the applicant’s economic circumstances in her home country relative to her potential circumstances in Australia. Having regard to the disparity in economic circumstances between Taiwan and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to Taiwan. The applicant has been unable to demonstrate substantial ties or personal assets in her home country which diminishes her incentive to return to Taiwan.
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 her 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 her proposed course to her future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 16 July 2018 the applicant has spent nearly four years in Australia and has not returned to Taiwan, owns no assets in Taiwan, intends to reside in Australia, if permitted, until at least March 2025 and appears to have stable employment in Australia all of which indicates that she does not appear to have strong personal ties to Taiwan. On balance, the Tribunal assesses the applicant’s incentive to return to Taiwan to be poor.
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 her to achieve that goal. The applicant was granted a student visa which would have facilitated the applicant’s study in her desired field. The applicant lodged this application shortly prior to expiry of the visa. 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 considered all information provided by the applicant in support of her application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in her home country, potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
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.
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 Taiwan; political or civil unrest circumstances in Taiwan; remuneration the applicant could expect to receive in Taiwan or a third country compared with Australia; circumstances in Taiwan relative to Australia or any other country; and the applicant’s circumstances in Taiwan relative to others in that country.
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;
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.

[2022] AATA 2193

23 June 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Intention

Standing

Statutory Construction