CHEN (Migration)

CHEN (Migration) [2020] AATA 5709 (22 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss JIAYAO CHEN
CASE NUMBER:  1728586
HOME AFFAIRS REFERENCE(S):          BCC2017/3537255
MEMBER:Penelope Hunter
DATE:22 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 22 October 2020 at 2:13pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not a genuine temporary entrant – cancellation of previous enrolments – lack of academic progress – lack of career direction – credibility issues – strong incentives to remain in Australia – use of student visa program to maintain residency – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act2000
Migration Act 1958, ss 65, 359(2), 375, 499
Migration Regulations 1994, Schedule 2, cl 500.212
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 Immigration and Border Protection on 1 November 2017 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 27 September 2017. 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 delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
Application to the Department
The applicant is a citizen of China. She applied for the visa in order to undertake study in a Certificate IV in Marketing and Communication and a Diploma of Marketing and Communication commencing on 9 October 2017 and concluding on 5 April 2020. With her visa application, the only other documents submitted to the Department was a copy of her passport, and confirmation of the issue of Overseas Student Health Insurance.
The delegate in their decision, a copy of which the applicant has submitted to the Tribunal, set out several reasons for refusing the visa, including that the applicant had failed to provide any submissions or evidence in support of the visa application to demonstrate that she was a genuine temporary entrant, she had not provided reasons for studying in Australia or evidence to satisfy the delegate that her study plans would assist her in obtaining employment or improve her employment prospects in her home country.
Certificate issued pursuant to s.375 of the Migration Act 1958
Contained within the Department file was a Certificate issued pursuant to s.375 of the Act setting out that the disclosure of certain identified folios would be contrary to public interest. The reasons provided in the certificate is that the disclosure would prejudice the security, defence or international relations of Australia, or that it would involve the disclosure of deliberations or decisions of Cabinet or a committee of Cabinet. The certificate is dated and signed, further the officer issuing the certificate is identified. The Tribunal accepts on its face that this would be a valid reason for non-disclosure of relevant information, however having regard to the material covered by the certificate which is a partial electronic record of departmental correspondence the Tribunal is not satisfied that the certificate has been validly issued. The Tribunal is comfortable that the records of correspondence in and out, contain no materials relating to Cabinet or a Committee of Cabinet deliberation or decision, further there is no security related information. In the circumstances the Tribunal is of the view that the certificate is not valid, and informed the applicant as such when the matter was discussed at the hearing on 21 August 2020. Furthermore the material covered by the certificate has no material bearing on the Tribunal’s consideration of the application under review.
Tribunal application
The Tribunal received an application for review from the applicant on 17 November 2017. The applicant also submitted a copy of the Letter of Offer in a Certificate IV in Marketing and Communication and a Diploma of Marketing and Communication at the Warwick Institute, issued 20 September 2017, and a statement in support. In her statement the applicant set out the following relevant information (in summary);
i.During her previous undergraduate and postgraduate education, she had learnt business skills. Her work experience in Australia helped her to discover deficiencies to her satisfying job requirements. She believed that a systematic study program in marketing and communication could benefit her career path and help her to avoid unnecessary mistakes. Marketing required good communication skills with customers, where she had weakness.
ii.She chose to study at the Warwick Education Institute as it had a nationally recognised vocational qualification in marketing management. It was a well-known institution that attracted different people, the campus was convenient for her to attend, the cost of study was reasonable and the timetable flexible.
iii.She chose to study in Australia because it was beautiful, peaceful and multicultural. She was spending the prime of her life in Australia to study and live. She was familiar with NSW and the Australian education environment.
iv.Her family were so kind and will provide her with all the financial support that she might need while in Australia including tuition fees, rent and groceries.
v.She had studied Accounting for her bachelor’s degree. She would like to work for the PR company Concentrix in China. She was not able to get into the area that she was interested in, but she was happy to work in the company as she had colleagues willing to assist her to reach the job requirements. She would like to have more practical experience, good management skills and good marketing skills.
In response to a request by the Tribunal pursuant to s.359(2) of the Act, on 5 June 2019, the applicant provided the following further information:
i.Between January 2011 and July 2014, she had undertaken study in a Diploma of Accounting at the Guangzhou Business College.
ii.She had commenced the Certificate IV in Marketing and Communication but had ceased this course as she did not like the school or subject matter. She was interested in developing IT skills due to the increasing importance of IT in all aspects of work and sought the recommendation of an education consultant. The applicant commenced an Advanced Diploma of Information Technology and hoped to complete her current course in December 2020.
iii.The applicant had undertaken an English language course between October 2018 and December 2018.
iv.She had discussed her future with her father, who was in a partnership and a 50% ownership of 3 restaurants in Foshan and Guangdong. The businesses were only using primitive IT and she hoped to assist him in upgrading the IT functions of the business.
v.She had previously worked for Concentrix from July 2015 to July 2016 as a customer service supervisor.
vi.She had previously held a working holiday visa in Australia from September 2016 to October 2017. She had been working as an Uber eats delivery driver since January 2018.
The applicant appeared before the Tribunal on 18 October 2019 to give evidence and present arguments. The applicant was represented in relation to the application for review and her representative attended the hearing. At the hearing the applicant presented a letter of confirmation of enrolment dated 15 October 2019 from Academies Australasia Institute and an interim academic transcript from for the Advanced Diploma of Information Technology.
i.The applicant was asked to elaborate on why she wished to study the Certificate IV and Diploma in Marketing and Communications and she said that her father had two restaurants and that she thought that the course would help her in terms of managing these restaurants. After she finished half the course only then did she realise that it would not help her much.
ii.When asked if there were any other reasons she was studying the course, the applicant said that she thought studying a commercial course would help her career and her agent also suggested that it would be helpful.
iii.The applicant acknowledged that the information contained in her statement received on 17 November 2017 was wrong and she did a diploma of accounting not a bachelor degree.
iv.The applicant was asked what she meant with the claim in her statement received on 17 November 2017, that she wished to work for the Concentrix company, and she claimed that she wanted to express that she had worked there in the past. She worked there 9 months as a supervisor in a call centre.
v.When asked why her statement, received 17 November 2017, did not make any reference to using her qualifications in marketing in working with her father, the applicant responded that the statement had been made two years earlier. She said her position at Concentrix was already taken by someone else and that’s why she decided to go back and help her father. The position at Concentrix was no longer available from July 2017.
vi.She had studied from October 2017 to August 2018 at the Warwick Institute and did not complete the Certificate IV in Marketing and Communication. She attempted six subjects and completed two. At the time her English was poor.
vii.After she stopped the Certificate IV she studies English. She completed this course in December 2018.
viii.When she returns she will be working as a manager in her father’s restaurants. In the past she worked in her summer job as a manager, for morning tea she would supervise the making of dim sim, for lunch and dinner it would be more busy. For lunch she needed to pay attention to special of the day, special menu for the day to make sure that the supplies would be constant. For dinner it was similar, but she needed to focus on seafood, and also wine, beverages, et cetera. She also wished to use her IT skills to develop and App for the business to show customers when their table would be ready and also the menu would be contained on the App, with takeaway and eat in separate.
ix.She did not make enquiries about IT courses in China as she was in Australia. Also she does not have much confidence in the Chinese education system and the certificate that she gained in Australia was quite useful in applying for jobs.
x.When asked if she had any family in Australia, the applicant responded that she had a male cousin, she did not know how old he was, maybe in the 30s, she had not meet him for more than a decade. When asked how often since she had been in Australia that she met her cousin, the applicant replied just once. She was sharing her accommodation with one friend in a unit at Randwick, where she had been living for over a year.
xi.The applicant was asked to clarify her claims in the response to information pursuant to s.359(2) received on 5 June 2019, the applicant claimed that her father did have three restaurants but she received information from her mother this year that one of them had stopped, because the lease was up, but another place was being looked at.
xii.After she finished her study she planned to return to China, she had no interest in studying another course.
xiii.The Tribunal discussed with the applicant her PRISMS recorded and confirmed that it was consistent with her evidence.
The initial member allocated the application for review was unable to finalise the matter and the application for review was reconstituted on 13 July 2020 to a different member. The applicant was advised that all documents and materials that were submitted to the Tribunal would be considered in relation to the review, including any recording of hearing and submissions to the Tribunal or the Department.
On 14 August 2020, the applicant provided to the Tribunal a Confirmation of Enrolment in an Advanced Diploma of Information Technology with course dates from 14 January 2019 to 11 June 2021, an interim academic transcript of her studies in the Advanced Diploma of Information Technology, Commonwealth Bank balance statement and representative’s submissions. In the submissions the following further information was provided:
i.The applicant had difficulties commencing in November 2019. She was living with her cousin and his wife since her arrival in Australia. The wife fell pregnant in October 2019 and started to make the applicant’s life intolerable and expected her to move out. This she was forced to do on short notice and she was unable to concentrate on her studies.
ii.The applicant was forced to move 3 times in 3 months and this led to a disruption in her studies and she was obliged to sell her motor vehicle from which she earned income as a delivery driver.
iii.The applicant was unable to meet course fees and her enrolment was cancelled in March 2020. The applicant then enrolled in English in June 2020 as she was cognisant of the need to maintain an enrolment. She commenced this course but subsequently withdrew as she was able to reinstate her enrolment in the Advanced Diploma of Information Technology because she was able to prevail upon her father for the necessary funding. She has also been able to resume her work as a delivery driver as one of her friends is allowing her to borrow their car.
iv.The applicant was confident that she could now regularly access funds to complete her course. The applicant relied on the bank statement submitted as evidence of funds.
v.The applicant’s passport had also expired and as the Chinese embassy had ceased processing passport applications she was currently unable to submit a valid passport to the Tribunal.
The applicant was again invited to appear before the Tribunal by telephone on 21 August 2020, to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The representative of the applicant also attended the hearing by telephone. The hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. At the hearing the following relevant information was discussed with the applicant:
i.The Tribunal confirmed with the applicant that she adopted the submissions of her representative and that they were accurate. The applicant was asked whether she was close to her cousin, and she replied just general. When the Tribunal asked if her cousin and his wife were supporting her, the applicant claimed that she was supported by her family and her income from employment.
ii.As they had a general relationship the Tribunal asked the applicant about her level of distress at having to move, in reply the applicant claimed that they would pick on her for a number of things, and she was only able to use a small space in the refrigerator, the also blamed her for a lot of things, like making things dirty which was not true. One more person was living in the house, her auntie, her cousin’s mother, and her relationship with her aunt was quite good. Her auntie had been living there for about a year.
iii.When she first arrived in Australia she spent a year in Perth, then she moved to Sydney to live with her auntie, in Eastwood for seven to eight months. Then her aunt decided to sell, and together she moved with her aunt to live with her cousin and his wife in Randwick.
iv.She thought she had moved out of Randwick in December 2019. The Tribunal asked the applicant about her claims that she had moved three times in three months. The applicant claimed to remember the addresses but not exact dates, around New Year’s Day 2020, she moved to Meadowbank for two months and three days to live with her friend and stayed on the lounge. In this property they got threatening as well, and she found it inconvenient so she got hold of a friend to move to another place in Ashfield. She settled down, the place was quite close to the city and bigger so they would not obstruct each other. Then she moved to suburb called Rhodes. After this because of the COVID her money was getting short, she asked her family for help. She ended up in Lane Cove and had been there for approximately 3 months.
v.The applicant claimed to have stopped studying in February 2020, at the start of COVID. The Tribunal referred to the applicant’s submission that her course was cancelled because she could not meet course fees. The Tribunal asked the applicant why when she had claimed that she was supported by her family that she could not meet her course fees, and she responded that initially her financial support was provided by her mother, her parents were separated at the time and her father did not know much about her situation. The Tribunal raised with the applicant her claims that she was studying to assist her to work in her father’s restaurant, and it questioned why when she claimed to have discussed matters with her father, he did not know about her situation. The applicant then said that she did not mean that her parents did not understand her situation, what her understanding from them was that her parents did not wish to give her too much money. If her mother had provided her in one way her father would not do so. The Tribunal put to the applicant the information contained in her statement of support received 17 November 2017, that her family were so kind and would provided her with all the support that she would need while in Australia, and the applicant was questioned why she did not explain the separation of her parents and the limitations on their support. In reply the applicant claimed that at that time no person had asked her things like that.
vi.The Tribunal asked the applicant to explain why she did not mention that she had an aunt in Australia that she was close to, or that she was living with her cousin, his wife or her aunt. In reply the applicant said that at the time of the Tribunal hearing that she was just living with her aunt. The applicant was asked again why she had not mentioned that she had an aunt in Australia, and the applicant responded that she could not remember whether she mentioned it or not.
vii.The Tribunal asked the applicant to explain why she previously gave evidence to the Tribunal that she had only met her cousin once since she had been in Australia, and that she was sharing a unit with a friend at Randwick, and when she was now claiming that her study had been disrupted having to move out of accommodation she was sharing with her cousin for some time. The applicant said that initially she was living with her auntie, at that time her cousin and his wife were living separately elsewhere and they did not see each other. The first time she saw them was when they decided to move into the place in Randwick. It took some time for this home to be completely ready and furnished, it was a two level house and she was living on the lower level. Her cousin and his wife were on the upper level, and her cousin worked early in the morning and she worked at night so they seldom saw each other. The applicant was then asked when the first time she met her cousin, and she replied it was June/July 2018. She then said that June/July 2018 was the time that she went to look at the house and they moved in around September 2018. The applicant maintained that only time she had met her cousin was when they went to look at the house in 2018.
viii.The Tribunal discussed with the applicant the academic transcript that she had provided did not demonstrate that she had progressed any further in her studies since the last hearing in September 2019, and the applicant was whether she had any evidence to support her claim that she continued with her studies until February 2019. The applicant responded that it was an old transcript. The applicant was asked whether she had re-enrolled in the Advanced Diploma of Information Technology for the purposes of the Tribunal hearing, in reply she said that the transcript was old and she had submitted assignments.
ix.When asked about her remaining study schedule, the applicant gave evidence that she proposed to re-start her studies on 23 September 2019 and said she had two terms to complete. The Tribunal asked the applicant how long a term for her education provider and she replied three months. The applicant was then asked to explain why her new enrolment was for a period up until 11 June 2021, which was equivalent to three terms. The applicant then responded that she had two terms to yet to complete and also a further term of courses that she had failed.
x.In response to concerns by the Tribunal as to the need for the applicant to obtain her qualification to work in her father’s restaurant, the applicant said that she had worked part-time for her father during holidays and noticed that they did not have a good computer system so wish to do website, there would also be an App to simplify ordering and paying the bill. It was still her intention to work in her father’s business when she finished her course.
xi.The applicant was asked when her aunt moved out of her cousin’s house and she replied, and the applicant replied that when she moved out her aunt was not there because she was staying with friends at Little Bay and she returned after the applicant had left. The Tribunal again asked the applicant when her aunt had moved out, and she replied that she had not moved out she just used to visit Little Bay occasionally.

At the request of her representative, the applicant was provided with time until 4 September 2020, to provide additional documentation to clarify the extent of the further study required by the applicant to complete her course. The Tribunal received no further submissions from the applicant within the time required or as at the date of this decision.
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 satisfies cl.500.21, of Schedule 2 to the Regulations.
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 Tribunal accepts that the applicant has family in China, and these ties may act as in incentive to return. In addition there is no evidence of economic circumstances of the applicant in China that would present a significant incentive for her not to return. The applicant has claimed that her father will employ her in one of his restaurants. The Tribunal has not been provided with further evidence of these restaurants, but it is accepted that this employment opportunity may also act as an incentive for her to return. There is also no evidence of military service commitments outstanding for the applicant or incidents of civil or political unrest that would induce her to apply for a student visa. It is accepted that these factors weigh favourably for the applicant.
However, in assessing the applicant’s claims the Tribunal had considerable difficulty reconciling the statements and oral evidence of the applicant and consequently has concerns about the reliability of the applicant as a witness and her reasons for undertaking study in Australia.
Although she applied for the visa in September 2017, other than a two month English course, the applicant is unable to demonstrate completion of any of her proposed courses. She has had three enrolments cancelled for various reasons. The evidence is that she ceased study in her Certificate IV in Marketing and Communication and did not undertake the Diploma of Marketing and Communication. The applicant has not presented evidence of any progress through the Certificate IV, and the Tribunal is not satisfied on her evidence presented on 18 October 2019, that the successful completion of two subjects of an attempted six, over a period of 10 months is a reasonable level of completion. The Tribunal also has concerns as to the reasons advanced by the applicant for enrolment in these courses. In her original statement, 17 November 2017, she claims that she wished to work in PR for her former employer Concentrix, yet she had to be reminded of these claims at the hearing on 18 October 2019. Also at this hearing she also presented to evidence that this position was no longer available to her as of July 2017, prior to the presentation of her statement to the Tribunal on 17 November 2017 in which she made claims about seeking this employment. It appeared clear that despite her written claims, working in PR for Concentrix was not a motivation for her enrolment. Instead, it was claimed that she wished to apply the skills to the marketing of her father’s restaurant. She made no reference to perceived deficiencies in her employment skills consistent with her original statement of November 2018. It also emerged on the subsequent evidence of the applicant that she had not previously completed postgraduate or even undergraduate education that she needed to build on with marketing skills. It is noted that the applicant also made claims that she enrolled in these subjects as her agent suggested that they would be helpful. This raises questions for the Tribunal as to the applicant actual level of interest in her course. The claims of the applicant regarding the her language ability have also been considered in relation to her claims that they presented an obstacle to progress, however it is noted that the offer of enrolment submitted by the applicant with the Warwick Institute documented that the applicant had to satisfy the English language requirement for the course. Further the applicant was able to address her language obstacles in her subsequent higher level advanced diploma course after English studies of less than two months. Overall, the lack of progress by the applicant in these initial studies and the conflicting reasons advanced for undertaking the course indicate to the Tribunal that she did not undertake the enrolment for the purposes of educational advancement and academic achievement but that it appears she was using the student visa program as a means of extending her time onshore.
The Tribunal is also not satisfied that the applicant has made satisfactory progress with her current proposed studies, the transcript submitted on 14 August 2020 does not demonstrate that she had progressed any further with her subjects than as at 18 October 2019. Despite being provided with leave to submit additional evidence to support her claims that she continued her studies for several months, none has been forthcoming. The Tribunal has carefully considered the applicant’s claims that her studies were interrupted by her issues with her cousin and his wife and is not satisfied that they are reliable. The Tribunal cannot reconcile her claims that she was emotionally affected by the break down of her relationship with her cousin and his wife with the applicant’s other claim that she had only ever met her cousin on one occasion when they inspected the apartment prior to moving in. It is also difficult to reconcile evidence that she was picked on for cleanliness when she also claimed to live on a different level of the apartment to her cousin and his wife. Her discomfort in the accommodation is also hard to reconcile with her claims that she had a good relationship with her aunt, with whom she shared her level of the apartment. Although the Tribunal accepts that the applicant relocated, on her evidence she was in new residences for a period of several months. The Tribunal also has concerns about the applicant’s claims that she lacked finances to continue the payment of her fees with her written submissions that she was fully supported by her parents. It found her claims about her parents being separated and not being aware of her situation as unreliable. Ultimately if the applicant was genuinely undertaking her course for the reasons she claimed, to benefit and improve the operation of her father’s business, the Tribunal finds it difficult to accept that that he would not be aware of her needs for funds for course costs or that he would withhold theses funds. The Tribunal does not accept that the reasons that she has advanced for her lack of progress are reliable. Once more the Tribunal has concerns that the applicant is using the student visa program as a means of extending her time onshore.
The Tribunal is also not satisfied that the applicant has reasonable reasons for not undertaking similar study in IT in her home country. It is clear from the applicant’s evidence that she made no enquiries of similar courses, because she was already in Australia. The Tribunal also has difficulty accepting the applicant’s claims that there would not be a suitable well regarded course in her home country, or that Chinese employers do not value these courses.
As to the applicant’s circumstances in Australia, the Tribunal is not satisfied that the applicant has presented reliable evidence of her family ties. Her initial claim of a male cousin that she had only met once in a decade is difficult to reconcile with the later evidence that she was living with her cousin and his wife for over a year. She did not initially disclose the presence of her aunt onshore then at the hearing on 21 August 2020 she provided evidence of a good relationship with her aunt. The Tribunal is also ultimately not persuaded that her relationship with her cousin and his wife is as inconsequential as she made out at the hearing on 21 August 2020. It would also appear from her evidence that she has several friends that will provide her with extended periods of accommodation. The Tribunal has concerns that the applicant has family and community ties that would present a strong incentive for her to remain in Australia.
The Tribunal has also carefully considered the applicant’s claims that she wished to use the skills obtained by her course to develop an app and website for her father’s restaurants. Firstly, this existence of these restaurants and the potential employment was only something disclosed by the applicant in June 2019, it was not an initial reason that she provided for study in Australia. Secondly, when listing her past employment in the form submitted on 5 June 2019, the applicant also did not disclose that she had previously worked in any restaurant. Thirdly, the applicant has provided no supplementary evidence to demonstrate the existence of these restaurants. Fourthly, the number of restaurants has changed from three to two. She was informed by her mother that one restaurant had closed down when her parents are allegedly separated and there are difficulties in communication as to her circumstances. Fifthly, the applicant has not presented any evidence demonstrating an offer of employment, or that her father desires these skills before he will employ her. Considering these issues, the concerns about the reliability of the evidence and submissions of the applicant, and her lack of demonstrated progress in this course since October 2019, the Tribunal has concerns regarding the claimed relevance of this course to her proposed future employment.
Given that the applicant is proposing employment in her father’s restaurant business and it is proposed that she work in the position of manager, not a dedicated IT officer, the Tribunal has concerns about whether this course is required for the applicant to gain the employment that she desires to return to China to undertake. Further, the Tribunal is also not persuaded that the attainment of the award of the qualification it will have any impact on the proposed remuneration that she could expect to receive working for her father. The Tribunal does not accept that the applicant is required to spend several years in Australia obtaining these relevant skills in IT for the position, particularly when she also claims there were difficulties obtaining funds from her parents for course fees. Finally the studies in IT are also not consistent with the applicant’s former studies in accounting and overall it is not accepted that the applicant has demonstrated the value of her course to her future.
With respect to the applicant’s immigration history it is accept that there is no evidence of any matters of concern. There is no evidence that she had not complied with conditions of her previous visa. The representative of the applicant submitted that because she applied for a student visa rather than an extension of her working holiday visa, the Tribunal should find that the applicant was a genuine in her intention to study. The Tribunal does not accept this proposition. A second working holiday visa would only have been for a period of 12 months, and also has requirements for specified work and the Tribunal is not satisfied that it is demonstrated that this would have been preferable visa for the applicant to obtain to remain onshore. The Tribunal does however accept that the applicant has not previously had a visa refused or considered for refusal.
In making its decision the Tribunal has considered all the evidence before it, including that the applicant has family in China, and that she wishes in the future to work in her father’s restaurant business. For the reasons outlined above it does not accept that the applicant undertaking her study for the reasons she has claimed, or, that her proposed further studies are required for her future, or that she has provided reliable evidence as to her circumstances in Australia. Ultimately the Tribunal finds that she is using it as a pathway to maintain residence in Australia.
Considering the evidence overall, and other matters that the Tribunal regards as relevant, including matters listed in Direction 69, as discussed above, the Tribunal is not satisfied that the applicant is genuine in her reasons for studying in Australia and as not satisfied that she is a genuine applicant for entry and stay as a student because it is not satisfied that she intends to genuinely stay in Australia temporarily.
Accordingly, the applicant does not meet cl.500.212(a).
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.
Penelope Hunter
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 5709

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Immigration

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