GANBAATAR (Migration)

[2020] AATA 5806

GANBAATAR (Migration) [2020] AATA 5806 (9 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SHINEBAYAR GANBAATAR

CASE NUMBER:  1717855

HOME AFFAIRS REFERENCE(S):          BCC2017/1006740

MEMBER:Penelope Hunter

DATE:9 December 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 09 December 2020 at 4:36pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – lengthy immigration history – property purchased in home country – 12 months gap in studies – maintain ongoing residence in Australia – value of current course towards career development – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359, 499; Direction No 69
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 July 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 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.

3. 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.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

   Application to the Department

5. The applicant is a citizen of Mongolia. He applied for the visa in order to undertake study in a Diploma of Information Technology with course dates from 17 April 2017 to 13 April 2018 and an Advanced Diploma in Information Technology (Project Management) with course dates from 16 April 2018 to 12 April 2019.

6. In a statement in support of his application, the applicant set out the following information (in summary):

   i.Australia was a well developed country in the education field and provided comfortable living and study conditions. He chose to study in Australia to learn more about English language skill and proficiency.

   ii.He had recently graduated from an Advanced Diploma of Marketing at SIBN College and now he wished to study IT. The reason for the study was that he wished to make his own website for online shopping. He believed that knowledge in marketing and IT would be a perfect combination for establishing his own business.

   iii.After finishing his study he wanted to return and start his own business in Mongolia with the new skills and concepts he had attained. His family was encouraging him to study in Australia and supporting him financially. He wanted to go back to Mongolia to deliver his education and skill to his country and the society. e Number: 171785

7. The delegate in their decision, a copy of which the applicant has submitted the Tribunal, set out several reasons for refusing the visa.

   i.The delegate had concerns about the applicant’s true intentions while in Australia The delegate commented on the immigration record of the applicant and noted that he was granted his initial student visa offshore on 1 March 2002, and he arrived in Australia on 19 March 2003. This visa was subsequently cancelled on 1 June 2002 The applicant then remained in Australia until 28 July 2005, awaiting the outcome of a [permanent] visa application. The applicant then returned to Australia on 4 March 2013 as the holder of a subclass 570  student visa which was valid until 17 March 2014. He departed Australia on 12 March 2014 and returned on a further student visa on 12 January 2016. It was considered that this information was unfavourable and did not support his application.

   ii.Each time the applicant has studied he had chosen courses that were typically of short duration and low cost. The delegate had concerns that the applicant had enrolled in a new course for the purposes of securing the visa rather than a genuine interest in study and overall academic progress.

   iii.It was noted that the applicant had family in Mongolia, however given the time that he had spent in Australia and the intended period of his future stay, the delegate was not satisfied that these ties represented a significant incentive for the applicant to return to Mongolia. The applicant had also been unable to demonstrate any economic ties or personal assets in Mongolia.

   iv.The applicant had failed to demonstrate to the delegate that any prospect existed for him to establish his own website for online shopping on the basis of his combined previous and current studies.

   Tribunal application

8. The Tribunal received an application for review from the applicant on 14 August 2017.

9. On 20 February 2019, the applicant submitted a marriage certificate, issued by the consular section of the Embassy of Mongolia in Australia, recording the applicant’s marriage on 31 March 2018 to Namuunaa Bayarsaikin.

10. On 6 March 2019, the applicant submitted a letter of reference from Strathfield College confirming that he was enrolled as a full-time student in an Advanced Diploma of Information Technology Project Management.

11. In response to a request for information pursuant to s.359(2) of the Act on 20 March 2019 the applicant provided the following further information:

    i.He did not have a current Confirmation of Enrolment (CoE) as he was waiting for the director of his college to return back from holidays and he would have one by the end of the month.

    ii.The reason that he was not undertaking a similar course in his home country was because the quality of education was poor in Mongolia. The teaching and learning methodology were traditional and he considered that they did not match the teaching in Australia. The applicant claimed that Australian institutions use current technology and research based materials while Mongolian universities taught in Mongolian. He claimed that in the current globalised world a good level of English was very important for a good career. Studying in Australia not only provided the applicant with knowledge of the course content but also gave him the opportunity to improve his English.

    iii.In the future the applicant wanted to run his own business or expand his father’s business named Tana Bosgo LLC, which produced plastic containers. He wanted to take marketing and IT skills with him after his course of study was completed in Australia. His course was directly related to the business because it gave him exposure to the use of IT in modern business.

12. On 18 April 2019, the applicant submitted a Confirmation of Enrolment (CoE) in an Advanced Diploma of Information Technology (Project Management), at Strathfield College, created on 5 April 2019, with course dates from 12 April 2019 to 6 October 2019.

13. The applicant attended a hearing before the Tribunal on 24 April 2019, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Mongolian languages. The applicant’s registered migration agent also attended the hearing. At the hearing the following information was discussed (in summary):

    i.He had extended his enrolment Advanced Diploma of Information Technology because due to the visa refusal he was under depression and he did not have the ability to concentrate on his studies. His studies were a bit discontinued and now he would like to continue his studies. He was initially excited to start his courses but because of the visa refusal his condition changed. He continued to attend classes and did not have any time off.

    ii.He had undertaken studies in marketing as it related to his father’s business and he would like to continue the family business of plastic bottle making. It is just a small factory but he wanted to expand it and studied marketing, as he wanted to assist his father and carry out the marketing side of the business. The applicant wanted to continue to help his father professionally and this was why he was studying IT. With these skills he would make his own websites and projects and run the marketing.

    iii.When asked whether he had completed his Diploma of Information Technology, the applicant claimed that he had.  

    iv.When asked about what he was learning in his course, the applicant said that he was learning to code and create applications.

    v.The applicant was asked about the project management part of his course and whether this made it different from the Diploma. He said that it did and that in the Diploma in the beginning it was how to create codes and with the advanced course it was getting more difficult and learning how to memorise everything. With the courses he will be able to create his own website and make his own business marketing and advertisement without additional costs.

    vi.He came to Australia to learn English in 2013, and he went back before his visa expired.  He had returned home in 2014 to help his father to run the business and get it started. Then he realised that if he studied marketing he would make the business better.

    vii.The applicant was asked what he intended to do when his course finished in October 2019, and he said that he would go back to his home country and run the business with his dad. He did not wish to upgrade to a Bachelor’s degree.

    viii.The applicant said that his course was available in his home country, but he preferred the way of teaching in Australia.

    ix.The applicant told the Tribunal that his father did not speak English. Then when asked how English skills would assist him in working in the business, the applicant claimed it would assist with expanding and communicating with international companies. When asked about the size of his father’s business, the applicant claimed that it employed two to three people. The applicant did not know the exact information as to the production output for the company bit claimed that they had good connections with local companies. They manufactured water bottles for small and medium sized water companies. His father had been running the business for about six or seven years.

    x.He was living with his partner who was also from Mongolia. They were sharing an apartment. His partner was studying business and was due to finish her course around the same time as him. His father was providing the funds for him to continue studying and he had not been working in Australia. He had an interest in a unit in Ulaanbaatar which was purchased in 2006. It was his family home and his parents were living in the unit.

    xi.He believed that he could make a difference of around $30,000AUD to the family business once his courses were completed.

    xii.The applicant was asked whether he was in Australia between 2002 and 2005, and he confirmed that he had travelled to Australia when he was around 10. The applicant was asked about the visas he sought at this time and he said that he could not  remember, he was in Australia until he was 13 and he had come with his parents.

14. On 2 May 2019, the applicant submitted letter from the director of Tana Bosgo, confirming that the applicant would work for the family company after his graduation and on returning to his home country.

15. The initial member allocated the application for review was unable to finalise the matter and the application for review was reconstituted on 31 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.

16. On 6 October 2020, the Tribunal wrote to the applicant and advised that it was unable to make a favourable decision on the information before it and the applicant was invited to attend a further hearing by telephone on 29 October 2020. The hearing scheduled 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 applicant. 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 applicant was also invited to provide any documents that he wished for the Tribunal to consider and evidence of a valid CoE.

17. On 22 October 2020 the Tribunal received further submissions from the representative for the applicant. The submissions that the applicant was now married with one son. His wife was an international student and her course of study will finish in October 2022. It was claimed that the applicant would have difficulties leaving his wife and son during COVID-19. The submissions were accompanied by the following documents:

    i.Certificate of Completion and transcript for the Advanced Diploma of Information Technology (Project Management) for the applicant issued 31 October 2019.

    ii.Conditional letter of offer from Kings Own Institute dated 15 October 2020.

    iii.Email send to Kings Own Institute requesting waiver of conditions on the letter of offer dated 21 October 2020.

    iv.Emails purporting to demonstrate that the applicant attended to secure admission in a Bachelor of Information Technology immediately after the completion of the Advanced Diploma of Information Technology. An email dated 25 November 2019, from the Australian Institute of Higher Education advising that they were unable to offer the applicant a place due to poor academic progress and GTE reasons. An email from the Holmes Institute dated 14 March 2019, advising that management had refused the case.

    v.Evidence of Overseas Student Health Cover.

    vi.CoE for the wife of the applicant, in an Advanced Diploma of Project Management with course dates from 12 April 2021 to 9 October 2022, created on 21 January 2020.

18. On 28 October 2020, the Tribunal received a further submission from the representative of the applicant enclosing a CoE created on 28 October 2020, at Kings Own Institute in a Bachelor of Information Technology with course dates from 2 November 2020 to 3 March 2023.

19. At the hearing on the Tribunal discussed with the applicant the following matters (in summary):

    i.It was noted that the applicant provided evidence of completion of his Advanced Diploma of Information Technology in October 2019, however the Tribunal was concerned that there was no evidence of further enrolment until his proposed Bachelor of Information Technology. The applicant was asked why he had remained in Australia when he had not been studying for 12 months. The applicant said that after he finished his course he was waiting on a decision from the Tribunal, and he applied for three colleges and he was rejected by two. Recently he obtained admission to his currently college. Also his wife was studying and he had to look after their child and with COVID-19 everything was a bit chaotic.

    ii.The applicant was asked whether the enquiries he made for other courses were contained in the emails provided with his agent’s submission. The Tribunal noted that the email correspondence with the Holmes institution dated back to March 2019, which was six months before he finished his Advanced Diploma. Further the other email with The Australian Institute of Higher Education was dated in November 2019. The Tribunal put to the applicant it was concerned as to whether he did actively pursue a further enrolment after he finished the Advanced Diploma of Information Technology.

    iii.The applicant was asked when his son was born, and he told the Tribunal that he was born in 12 February 2019. The Tribunal confirmed that his son was born when he attended the previous Tribunal hearing. The applicant was asked if there was a reason he did not disclose this to the Tribunal on the last occasion, and he responded that he thought it would be better if he got his visa first.

    iv.The Tribunal raised with the applicant that the CoE submitted for his wife discloses that her course did not commence until 12 April 2012, the applicant claimed that she was currently studying a Diploma of Project Management, and that she had started in February 2020. The Tribunal raised with the applicant his previous evidence to the Tribunal that his wife was studying business and that she would finish her studies the same time as him and questioned whether that evidence was correct. He said that it was but that she wanted the knowledge to study project management. The applicant was asked as a family what their future intentions, when did they plan to return to Mongolia or if they wished to remain in Mongolia. He responded that they planned to return after his wife’s study had finished and in the meanwhile he wanted to pursue a course.

    v.The applicant was asked whether it was still his intention to work in his father’s business and he claimed that this was still the case. He said that the reason he decided to pursue his study was to assist his father’s business and if in the future he wanted to create his own business it would be beneficial or helpful for him to study and gain more experience.

    vi.The applicant was asked what business he planned to start in the future and he said he was thinking of having a similar business to his father which was in the plastic container industry, or he could expand his father’s business. The Tribunal questioned why he would start a business in  competition with his father. The applicant said that he was not really certain about the future and that first he would join his father’s company and then with more experience he would perhaps expand it.

    vii.The applicant was asked how his proposed Bachelor of Information Technology would assist him with his future plans, and he said that nowadays everything was based on information technology. With the advancement of digital technology businesses were tending to flourish and become more profitable. The Tribunal put to the applicant that it was a very general response and that it had concerns as to whether the course would assist him in his goals in the future and questioned his motivation for his enrolment. The applicant said that when he went back to his home country he would be responsible for the information technology and marketing department of his father’s company so that was why he needed to know especially about coding in order to be in charge of those departments. The Tribunal then questioned the applicant whether his father’s business was still a small business with two to three employees. The applicant responded that maximum it had 10 employees. The Tribunal then questioned whether it currently had an IT or marketing department. He said that there were people working in that department but when he joined with the company he had no hesitation that he would be in charge.

    viii.The Tribunal noted that the applicant had previously told the Tribunal that he would return home after he had finished his Advanced Diploma of Information Technology and that he did not propose to upgrade to Bachelor level study. The applicant acknowledged that he had made those comments but at that time his wife was pregnant and they decided to have their child in Australia, and then Covid-19 happened and they were unable to return. The Tribunal again confirmed the date of birth of his son, in February 2019.

    ix.The Tribunal was asked about a previous visa cancellation and [permanent] visa application made on his behalf as disclosed in the decision record of the delegate, and he said that he was not sure about those applications because he was young at the time. The Tribunal noted that the matter had been raised several times in relation to the visa refusal under review and asked the applicant whether he had made any enquiries with his family, and the applicant responded that he had not.

    x.The Tribunal asked the applicant whether his enrolment in the Advanced Diploma of Information Technology was extended due to depression or whether the real reason was the birth of his child. The applicant said that due to the refusal he was a bit stressed and failed some of his courses.

    xi.The applicant was asked whether he completed all subjects required for the award of the qualification of the Diploma of Information Technology. The applicant claimed that to the best of his knowledge he did complete all units. The Tribunal then questioned why he did not then obtain the certificate of qualification. The applicant claimed to have no idea, he said that he had failed some of his course but he re-took them and because of changes in the school maybe that was why he only got the certificate.

    xii.He had met his wife in Australia in 2017. The applicant was asked about where they planned to live if they returned to Mongolia and he replied maybe in the capital city. He said that they would live on their own not with his family. The Tribunal asked what career his wife was planning and he said maybe something in project management, she might look for a job or they might have another child.

1. The Tribunal also had before it the Provider Registration and International Student Management System records for the applicant and his Department movement records. The Tribunal considers that the information contained in those record is generally consistent with the evidence of the applicant, or disclosed by the applicant to the Tribunal. It has placed no reliance on any information disclosed in these records in determining the matter.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. 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. 500.212 of Schedule 2.

3. 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?

4. 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.

5. 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.

6. The Tribunal accepts that the applicant has family in the form of his parents and siblings in his home country. It is also accepted that he may be able to work in his father’s business in the future. The applicant claims to own a unit in Mongolia, although he claimed to be the owner he also gave evidence that it was his family home, and has provided to the Tribunal not actually evidence of ownership. While the Tribunal is not persuaded that the applicant has any assets in his home country, there is no evidence presented of the applicant’s economic circumstances that would present as a significant incentive for the applicant not to return to Mongolia. Additionally there is no evidence of any outstanding military service obligations for the applicant or circumstances of civil or political unrest that would induce the applicant to apply for a student visa as a means of remaining in Australia indefinitely.

7. The Tribunal also accepts that the applicant has completed the qualifications of the Advanced Diploma of Information Technology, however he did not complete the course within the prescribed time. In the absence of corroborative medical evidence the Tribunal is not certain how much reliance can be placed on his claim that he was suffering from depression, or stress. While the Tribunal accepts that the applicant completed his enrolment in the | Diploma of Information Technology, he has not been able to satisfactorily explain to the Tribunal why he did not obtain confirmation of the award of the qualification, and told the Tribunal he had no idea but maybe due to changes at his college that he did not identify further in his evidence. This is problematic for the Tribunal because if the applicant was genuinely in Australia for the purposes of obtaining well-regarded qualifications for the benefit of his future career, it did not make sense to the Tribunal that he would not ensure he received the qualification after paying for and undertaking the course. These matters raise questions for the Tribunal as to the actual value to the applicant of the qualifications he is undertaking.

8. The Tribunal is also not satisfied that the applicant had a reasonable explanation for the gap in study between the applicant finishing his Advanced Diploma of Information Technology and his further enrolment in the Bachelor of Information Technology. It is a gap of approximately 12 months, it does not accept that awaiting the outcome of a Tribunal review is a sufficient reason to cease studying. The Tribunal questions whether the applicant only obtained this enrolment for the purposes of the further Tribunal hearing rather than any genuine interest in further study. It is not accepted that the emails submitted by the applicant from March 2019 and November 2019, demonstrate that there was a significant impediment to him obtaining a further enrolment. It is also not accepted that these are reflective of a genuine attempt to obtain enrolment proximate to the time he finished his previous course. The Tribunal further has difficulty reconciling his proposed enrolment which would require a further three years of study, when he submitted to the Department at the time of the visa application that he would just complete his initial proposed courses and return to his home country, and later gave evidence to the Tribunal in April 2019, that he was not proposing higher level Bachelor study. These factors indicate to the Tribunal that the applicant is using the student visa for the purposes of mainlining ongoing residence in Australia.

9. As to the value of his proposed Bachelor of Information Technology, the Tribunal is not satisfied that the additional skills from this degree are required for his proposed future employment in his father’s plastic bottle making business. On the evidence of the applicant this is a small business that supplies plastic bottles to local water suppliers. It has only between two and 10 employees, when asked he did not know its level of production. The applicant has not presented evidence of a large distribution network, and more particularly an international supply chain that would require the English skills he claims are the advantage of studying in Australia. The Tribunal is not persuaded that it has an online presence or even a marketing or IT department for the applicant to manage, given the small scale of the operation. Given that the applicant has a position waiting for him in Mongolia, and he made claims that with his Diploma and Advanced Diploma qualifications he could significantly improve the profitability of the business the Tribunal is not satisfied that the time and expense of a further three years of study has value for the applicant, or will significantly improve his employment or remuneration prospects.

10. The Tribunal has also considered the claims of the applicant that further study is required so that he could perhaps develop his own business. The Tribunal is not persuaded as to the relevance of his proposed study to any future business. Although the applicant has talked about developing an online businesses, despite now studying IT for three years his evidence as to what business he would like to develop and how his studies would benefit this has been consistently vague. His suggestion that he might establish another business in plastic bottle, did not persuade the Tribunal that advanced skills in IT were required and the Tribunal questioned the sensibility in establish a business  in competition to his father. The Tribunal was not satisfied that the applicant was able to demonstrate knowledge of his intended course, his evidence that it would be further coding and that nowadays everything was based on information technology, did not satisfy the Tribunal as to the value of the skills he would acquire for his stated future employment. Furthermore, the applicant has already gained English language skills with his previous study, and if the applicant genuinely desired addition skills in IT the Tribunal was also not satisfied that the applicant has reasonable reasons for not undertaking a similar Bachelor of Information Technology course in his own country.

11. While the applicant may have his parents and siblings in his home country, it is in Australia where he has determined to marry and start a family. His wife is proposing further study in Australia and the Tribunal finds that this would provide considerable incentive for him to seek to remain in Australia. The Tribunal has concerns about the applicant’s previous withholding of information about his child, and it raises questions about the reliability of the applicant as a witness. The applicant already had a child at his hearing in April 2019, and the information before the Tribunal is that his wife proposed ongoing study, clearly the submission to the Tribunal at that hearing that he would return on the completed of his Advanced Diploma in 2019, was not accurate, and the Tribunal has doubts as to whether it ever was his intention.  Added to this are the Tribunal’s concerns about the applicant vague evidence, at his Tribunal hearing in October 2020, as to when he intended to return to Mongolia with his family. That it was now after his study or his wife’s study had finished, not at the completion of a specific course by an ascertained date.  As to the plans for his wife when she completed her study the applicant was again vague, she might get a job related to her current course. The applicant was unable to persuade the Tribunal that there was a plan for his family in Mongolia. One more, it appeared to the Tribunal that the applicant was using the Student visa system as a means of maintaining residence in Australia.

12. As to the applicant’s migration history, the Tribunal has concerns about the considerable amount of time he has spent in Australia on this and previous visas. The proposed Bachelor’s degree will extend his period of study on the visa under review to approximately six years. This is in addition to the two years that the applicant has already spent studying English and Marketing. The length of time that the applicant is proposing to spend in Australia suggests that he sees it as a place to live and raise a family, rather than a place to obtain qualifications to build a career in his home country. Additionally if the qualifications and knowledge that the applicant wished to obtain from his study was significantly important to his future career, the Tribunal considers that he would have enrolled in that study proximate to the time of completion of his Advanced Diploma of Information Technology in 2019, not 12 months later.

13. The Tribunal also takes note of the fact that the applicant previously sought and was refused a [permanent] visa. Although it is accepted that the applicant was a child and not the initiator of this application, an application has previously made on his behalf to remain permanently in Australia. The Tribunal will not afford it significant weight, and it is not determinative, but it is a factor for consideration in accordance with Direction 69. Further the applicant’s claim to have no knowledge of the matter, or even having made enquiries throughout the review of this application also appears to lack transparency.

14. The Tribunal has also considered the submission of the applicant’s representative that discretion should be exercised because the applicant would face difficulties travelling due to COVID-19, and he wishes to remain with his family. The Tribunal notes that the applicant is not restricted from making arrangements to depart Australia, and international flights are operating. His desire to remain with his family may be a reason for a dependent visa, however the Tribunal is not satisfied that, with regard to the relevant considerations listed in Direction 69, it demonstrates that the applicant genuinely intends to remain in Australia temporarily.

15. In making its decision the Tribunal has considered all the evidence before it, including that the applicant has previously completed courses in Australia, that he has family, and an employment opportunity in Mongolia. However, given the Tribunal’s concern of the applicant’s gap in enrolment, the lack of value of his course, his circumstances in Australia and the length of time he is proposing to remain onshore, for the reasons outlined above it does not accept that the applicant is undertaking his study for the reasons he has claimed. It is not accepted that his proposed further Bachelor studies are required for his future and rather finds that he is using it as a pathway to maintain residence in Australia.

16. 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 his reasons undertaking further study in Australia and is not satisfied that he is a genuine applicant for entry and stay as a student because it is not satisfied that he intends to genuinely stay in Australia temporarily

17. Accordingly, the Tribunal is not satisfied that the applicant satisfies cl.500.212.

18. 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

19. 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.