Jeon (Migration)

Jeon (Migration) [2022] AATA 3755 (26 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Haryong Jeon
REPRESENTATIVE:  Mr Philip Oh (MARN: 9900334)
CASE NUMBER:  2114483
HOME AFFAIRS REFERENCE(S):          BCC2021/1359250
MEMBER:Frank Russo
DATE:26 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 26 October 2022 at 4:30pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa and study history – arrived on working holiday visa – completed, non-completed and non-commenced courses, changes of course provider, enrolments in lower-level courses and changes of subject area – return to original subject area – length of stay, one return and ongoing work – vague plans for business in home country, with no supporting evidence provided – family ties and responsibility to support older parents – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 September 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 4 July 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The applicant is a 39-year-old national of the Republic of Korea. The Student visa application was in respect of the applicant’s enrolment in an Advanced Diploma of Business.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The applicant appeared before the Tribunal by telephone on 15 July 2022 and 9 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of interpreters in the Korean and English languages. The first hearing was adjourned because the interpreter was unable to attend for the duration of the hearing.
The applicant was assisted in relation to the review. The applicant’s representative attended the Tribunal hearing by telephone.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary applicant for entry and stay as a student.
In addition to the application form and copy of the delegate’s reasons for decision and notice of the decision from the Department, the applicant provided the Tribunal with a confirmation of enrolment (CoE) for the Advanced Diploma of Business with Global Education (trading as Abbey College), commencing on 5 July 2021 and ending on 2 July 2023.
On 21 April 2022, the applicant provided a response to a s.359(2) invitation, including the following documents in support of his claims:
a.A completed ‘Request for Student Visa Information’ form;
b.A CoE for the Advanced Diploma of Business with Abbey College from 4 April 2022 to 2 July 2023;
c.Award of the Diploma of Leadership and Management by Bright Minds on 26 May 2021;
d.Photograph pages of his Korean passport;
e.Overseas student health cover policy;
f.Australian bank deposit details; and
g.Certificate of Korean military service.
On 31 May 2022 the applicant provided a form appointing an authorised representative. On 27 June 2022 he provided a response to the hearing invitation.
On 8 August 2022, the applicant provided a written submission dated 2 August 2022.
The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file, which include a genuine temporary entrant (GTE) statement from the applicant, overseas student health cover policy, copy of the applicant’s Korean passport and a system generated copy of the applicant’s visa application. The Tribunal has had regard to the documents on that file.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Applicant’s evidence at the hearing
The applicant stated in his evidence that he first arrived in Australia in 2011 holding a Working Holiday visa (his movement record indicates that he was granted the Working Holiday visa in December 2011, but arrived in Australia on 1 January 2012). Following this, he was granted a second Working Holiday visa. He then applied for a Student visa onshore. He stated that his reasons for wishing to study in Australia at that time were that he had worked for 6 years in South Korea, but had only completed Year 12 education, and had a desire to ‘upgrade’ his skills. He stated that in South Korea a university degree and English proficiency can make a large difference with the annual salary one can earn.
The applicant gave evidence that he is currently enrolled in an Advanced Diploma of Business. He gave evidence that he has previously had enrolments in the following courses:
a.Certificate III in Business;
b.Certificate IV in Business;
c.Diploma of Management;
d.General English;
e.Certificate IV in Marketing;
f.Diploma of Marketing;
g.Advanced Diploma of Marketing;
h.Certificate IV in Leadership and Management;
i.Diploma of Leadership and Management; and
j.Advanced Diploma of Leadership and Management.
The applicant stated that he did not complete the Certificate III and IV in Business and the Diploma of Management because he was struggling with English, so he instead enrolled in General English. He stated that he completed the Certificate IV in Marketing, but not the Diploma or Advanced Diploma of Marketing as at the time his work position changed from sales to management, which is why he changed his studies to Leadership and Management.
As to his reasons for choosing to study the Advanced Diploma of Business, the applicant stated that he has been interested in business all the time and never had interest in other areas. He stated that he has a strong desire to own his own business in South Korea and stated that he is currently working in this area. He stated that he has worked in sales or marketing while holding the Student visa and he has no intention to study any other courses.
The Tribunal noted that in his s.359(2) response, the applicant states that he works as a sales manager. The applicant stated that this is just a job title, and that in reality he is managing the wholesale part of the business he works for, which includes importing and exporting Asian food products, including the logistics. He stated that he currently earns slightly over $30,000 per year.
As to his plans after he completes the proposed course, the applicant stated that he wants to return to South Korea. He stated that he needs his family, and his parents are getting old and he intends to look after them. He stated that he is planning to open a Korean branch of the company he currently works for, which will involve importing quality Australian products to South Korea and exporting Korean products to Australia. He stated that to do this he needs more study.
When questioned how the proposed study will assist him with his proposed employment or business plans, the applicant stated that he will learn English, which will assist him. He stated that the best way to study Australian work culture is to study Business. He stated that in order to do business with Australia, you need to know what the needs of Australian businesses are, and for that he needs to study.
When questioned what he has learned from his current course of study that will be of assistance to him with his proposed business plans, the applicant mentioned online home pages, managing people and day-to-day management. He stated that Australia is a multicultural community and he needs to know the needs of Australian customers.
The Tribunal put to the applicant that on the information he has provided, he has already completed an Advanced Diploma of Leadership and Management and a Certificate IV in Marketing, and that through these courses he is likely to have learned about managing people and about online home pages, and questioned how the qualification he will gain from his current course will assist him over and above his existing qualifications. The applicant stated that the course he did in Marketing was about packaging and how to sell products well, with a focus on sales and marketing, but the purpose of his current course includes sales management and HR management. The applicant then stated that the focus of his current course of study is on HR or labour management and on sales management. The Tribunal questioned whether the applicant hadn’t already learned about these topics as part of the Advanced Diploma of Leadership and Management. The applicant responded that he did learn about them, but that applying those principles in practice at work is different. He stated that he still has more to learn. He argued that after studying an area for one year, a person cannot say they have mastered it, and that he still needs to study more.
The Tribunal noted that the information about the applicant’s enrolment history which is on file is generally consistent with the evidence he had given of his enrolments, however the information on file contains greater detail, and therefore the Tribunal would put it to him. The Tribunal used the procedure in s.359AA of the Act to put to the applicant information from his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that his enrolment record indicates that he has had the following enrolments:
a.In 2014 he was enrolled in a Certificate III in Business, which is recorded as ‘Finished’;
b.He had enrolments in the Certificate IV in Business commencing in 2014 and a Diploma of Management commencing in 2015, both of which were cancelled, the latter for non-commencement of studies;
c.In 2014 and 2015 he had enrolments in Cambridge English Language courses, which are recorded as finished;
d.He had an enrolment in General English for one month in 2015;
e.He finished a Certificate IV in Marketing from February 2016 to November 2016;
f.He had enrolments in a Diploma of Marketing commencing in November 2016 and an Advanced Diploma of Marketing commencing in November 2017, both of which were cancelled due to transfer to another course provider;
g.He completed a Certificate IV in Leadership and Management from July 2017 to April 2018 and a Diploma of Leadership and Management from April 2018 to April 2019;
h.He completed an Advanced Diploma of Leadership and Management from May 2019 to April 2021; and
i.He is currently studying the Advanced Diploma of Business, which he commenced on 5 July 2021, before transferring to the same course with another provider. He commenced his current enrolment on 4 April 2022 and is scheduled to complete it on 2 July 2023.
The Tribunal informed the applicant that his study history might be the reason, or part of the reason, for affirming the delegate’s decision, and noted a range of concerns with this study history, including his enrolments in a range of courses in different fields and his enrolment in Business courses in 2014, which he did not proceed with, and his decision to enrol in a Business course again in 2021 and 2022. The Tribunal put to the applicant that this information may indicate that he is enrolling in a range of vocational courses to maintain ongoing residence.
The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.
The applicant confirmed that he understood the nature of the document and wished to comment on the PRISMS enrolment record at the hearing. However, at this point in the hearing the interpreter indicated that he had another booking and was unable to continue with the hearing. The Tribunal therefore adjourned the hearing at this point, which would also allow the applicant to have time to consider his comments or response to the information the Tribunal had put to him.
At the second hearing, the applicant responded to the information in his PRISMS record by stating that in April 2014 he started the Certificate IV in Business, but received quite a few fail marks because of his English level. He stated that he was asked by the school to do some courses in English, so he was forced to transfer to another school.
The Tribunal put to the applicant that while it could understand the need for him to undertake further English language courses, it was concerned that in 2014 he was enrolled in courses in Business, however after completing the courses in English, he enrolled in Marketing in 2016 and then Leadership and management in 2017, and in July 2021 decided to return to Business, suggesting he may have returned to study a course he has limited interest in. The applicant stated that due to his limited English in 2014, he could not continue with his studies in Business. He stated that he used to work in sales for a company, but now he has been transferred to the management section, and he plans to work in the same area when he returns to South Korea, where he will work in conjunction with his current workplace.
The applicant told the Tribunal that his current workplace has issues in terms of trading methods and management and that when he returns to Korea he will be in charge of such processes. He stated that the subjects he learns in his current course will more thoroughly teach him about managing ‘manpower’ and quality control. He stated that his current employer is not an importer, but a distributor, and they have no control over quality or used by dates, but they wish to import directly. He claims that he will run a branch office in South Korea as a director and will be a business partner. He stated that in order to conduct this work he will need to handle things like market research, shopping, staff control, and therefore the study will have great significance for his future and is directly related to his proposed future work.
When questioned whether he had done any research into the remuneration he could expect to earn in South Korea by using the qualification to be gained from his proposed course of study, he stated that he is 39 years old and plans to create his own family unit. He stated that his parents will retire soon and stop being his providers. He stated that if he can become the director of a branch, his annual income will make a lot of difference, and his qualifications will help consolidate that.
As to his reasons for wishing to undertake the proposed course of study in Australia, the applicant stated that the education system in South Korea is very different, and to do a Business or Management course there, he would need to do a lot of other subjects.
As to his personal ties, the applicant stated that his family in South Korea includes his parents, sister, brother-in-law and a niece. He has no family in Australia. He stated that he is not in a relationship, but he intends to meet someone in South Korea. He stated that as a son, he is expected to look after his parents. He stated that he has been away for 7 to 8 years and has been supported financially by his parents, so he would like to make money to look after them. As to his assets, the applicant stated that he has term deposits under his name in South Korea, which he will use for his future business.
The Tribunal raised various potential concerns with the applicant and gave him an opportunity as a matter of procedural fairness to comment or respond to each. The Tribunal raised concern about the length of time he had spent in Australia on temporary visas, and his proposal to remain until at least July 2023, which would bring his stay to over 11 years. The applicant responded that he has been in Australia for 10 years now and endeavoured to build up his career and study, and when he finishes his current endeavour, he needs to return to South Korea. He stated there is no-one he can rely on in Australia.
The Tribunal raised concern that the applicant had not left Australia since March 2014, when he returned to South Korea for approximately a fortnight, which may suggest that his ties in South Korea may not act as a strong incentive for him to return there. The applicant responded that South Korea has a very developed communications system, and he can use social media to see people as if he is with them in person. He stated that he communicates with his family in South Korea, so he didn’t feel that much necessity to return there. He stated that there were other reasons, such as COVID-19. The Tribunal put to the applicant that there was a period of approximately 6 years prior to the COVID-19 pandemic, in which he had not returned to South Korea. The applicant responded that he was building up his business plan, and that if he had gone to South Korea during the COVID-19 pandemic, it would have wrecked his work here. He stated that Korea and Australia are a far distance from each other, so it wasn’t easy to return there.

The Tribunal noted that the applicant gave as reasons why he has chosen his current course of study, that he needs to learn English and needs to know what Australian businesses need so he can do business with Australia. The Tribunal put to the applicant that he has lived in Australia since 2012 and studied in Australia since 2014, which has included English language courses and then vocational courses, and he has worked for wholesale trading or distribution companies in Australia since August 2016, including with his current employer since January 2020. The Tribunal put to the applicant that this suggests he has had sufficient time to learn English and to obtain an understanding of what Australian businesses need. The applicant responded that he would like his time in Australia to be fruitful and he would like to wind it up in the most meaningful way. He would like to return to Korea as the best qualified business partner he can be. He stated that he has completed one year of his course and has one more year to go.
The Tribunal raised concern that the applicant’s employment in Australia may be an incentive for him to remain here on completion of his proposed course and raised concern that he may be attempting to build his career in Australia. The applicant responded that on his Student visa he can only work 20 hours per week, which means he can live only on a tight budget. He stated he can live an affluent life in South Korea. He stated that his annual salary is currently just over $30,000, but when he returns to South Korea his potential income will be over $100,000.
The applicant’s representative was invited to make any oral submissions. His representative asked whether the Tribunal would accept written submissions. The Tribunal indicated that if he wished to provide written submissions, the Tribunal could grant some time for this. The applicant’s representative then indicated that there were no more submissions. The Tribunal also notes that the applicant’s representative provided a written submission dated 2 August 2022, in relation to the applicant’s studies.
Findings regarding the factors in Direction No.69
Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account all the relevant information, the Tribunal is not satisfied that the applicant meets the genuine temporary entrant criterion.
The applicant’s circumstances in his home country
I accept that the applicant has personal ties to his home country. These include the presence of his parents, his sister, brother-in-law and a niece. I accept that he regularly contacts his family by SMS and video calls. I accept the applicant’s claims that he is close to his family and that his parents are getting old, and he wishes to look after them.
The applicant claims he has term deposits in South Korea, which he will use to establish an intended business. He has not provided evidence in support of this, but he has listed this information in his s.359(2) response. He has provided evidence of an Australian bank account. I accept that the applicant has savings deposits in both South Korea and Australia, as listed in his s.359(2) response.
The applicant claims in his s.359(2) response that he worked as an operator in printing companies from 2005 to 2011. While I accept that this was the case, given such employment was over 10 years ago and is in a different field from his work and study in Australia, I give only little weight to it. The applicant claims that he intends to return to Korea to establish a Korean branch of his current employer, and to expand the business so it is no longer a distributor, but becomes an importer and exporter of Korean and Australian food products. He claims he will use the money he has from a savings deposit in Korea to assist in establishing the business, in which he will be a director and partner with his current employer. While the applicant has not provided any supporting evidence of such a plan, such as letter from his current employer or proposed business plans, I am prepared to accept that this may be an option for the applicant and give it some weight in considering his circumstances as a whole.
While the Tribunal accepts that the applicant has personal and family ties to South Korea, as well as some financial or economic ties, which may serve as an incentive to return there, the Tribunal also notes that the applicant has not returned to South Korea since April 2014, when he departed Australia for approximately a fortnight. This is the only time the applicant has returned to South Korea since arriving in Australia on 1 January 2012. While I have taken into account the difficulties in international travel since 2020 as a result of the COVID-19 pandemic, as well as the applicant’s stated reasons for not returning to South Korea more often or more recently, I find that the applicant’s travel history raises some doubts as to the extent to which his ties to South Korea may serve as an incentive to return to his home country. I do however give some weight to the applicant’s personal ties to his home country and accept that they would serve as some incentive to return to his home country.
I make no adverse findings regarding the applicant’s economic circumstances.
The applicant’s stated reasons for wishing to undertake the proposed course of study in Australia include the different education system in South Korea, as well as his claim that to study Business or Management there he would have to undertake other units or subjects which may not be relevant to the course. I make no adverse findings regarding the applicant’s reasons for not undertaking the course of study in his home country.
The applicant has provided evidence of his military service in South Korea, and I accept that there are no military service commitments which would present as a significant incentive for the applicant not to return to his home country. There is no evidence of civil or political issues that would act as an incentive for the applicant to remain in Australia. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in South Korea, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.
The applicant’s potential circumstances in Australia
The applicant first arrived in Australia on 1 January 2012, holding a Working Holiday visa. He was granted a second Working Holiday visa, which ceased on 1 January 2014. He has been granted three Student visas, in January 2014, May 2016 and May 2019. The applicant is currently enrolled in an Advanced Diploma of Business until 2 July 2023. If the Student visa is granted, this will bring the applicant’s stay in Australia on temporary Working Holiday and Student visas, as well as associated Bridging visas, to over eleven-and-a-half years, which the Tribunal considers to be a significant length of time and casts some doubt on the applicant’s claim that he intends to remain in Australia only temporarily.
The applicant explained in his evidence and his written submission that he was first enrolled in Certificates III and IV in Business Management at Lloyd International College from January 2014, but was told by the college that they were having difficulties with this training package and he was told to commence the Certificates III and IV in Business Management at Cambridge International College. The applicant commenced these enrolments in April 2014, but due to his English language level at the time, failed some subjects and was told that he may not be able to complete the course. The applicant transferred to an English language course in December 2014 and studied English courses until December 2015. He then commenced a Certificate IV in Marketing at Apex College in February 2016, which he completed in November 2016. The applicant was enrolled in a Diploma and Advanced Diploma of Marketing, but changed his enrolment to Leadership and Management at Trison College because he claims this course suited him better and he changed the focus of his work from sales to management. He completed a Certificate IV in Leadership and Management and a Diploma of Leadership and Management from July 2017 to April 2019. From May 2019 he studied an Advanced Diploma of Leadership and Management at BMP, which he completed in May 2021. The applicant then enrolled in an Advanced Diploma of Business at BMP in July 2021, but his application for the Student visa was refused. The applicant submits that he continued with this course, but BMP closed due to the COVID-19 pandemic. His enrolment in this course was cancelled in April 2022. In April 2022 he commenced studying the same course at Abbey College.
The Tribunal makes no adverse findings regarding the applicant’s difficulty in completing the Certificates III and IV in Business in 2014 due to his English language skills at the time, nor does it consider the applicant’s decision to transfer from courses in Marketing to Leadership and Management to in itself be of concern. The Tribunal also accepts that the applicant’s first education provider for the Advanced Diploma of Business closed its doors, and he was forced to transfer to another education provider. The Tribunal notes however that since arriving in Australia the applicant has completed certificates in English as well as a Certificate IV in Marketing in 2016 and an Advanced Diploma of Leadership and Management in August 2019. The applicant has now returned to study an Advanced Diploma of Business. The applicant was first enrolled in courses in Business in 2014 and in Management in 2015. While I accept that he had difficulties with these courses due to his English language skills at the time, rather than return to them after completing certificates in English, the applicant instead enrolled in courses in Marketing, then courses in Leadership and Management. I have concerns that the applicant may be enrolling in vocational courses in different fields as a means of maintaining ongoing residence in Australia, and that he has now returned to an enrolment in Business after not studying in this field for approximately seven years.
I have had regard to the applicant’s stated reasons for now choosing to enrol in the Advanced Diploma of Business, including his claim that he has changed the focus of his work from sales to management, however I have concerns that the applicant’s employment in Australia may present as a strong incentive to remain in Australia. I have had regard to the applicant’s claims that he barely makes enough to support himself in Australia, and that he is supported by his parents, however I note that he has worked for three different grocery wholesale companies since February 2014. He has worked for his current company since January 2020. While the applicant claims that he intends to return to South Korea to establish a branch of his current company and to import and export food products from South Korea, the applicant has provided no evidence in support of these plans, and I am concerned that the applicant’s employment history indicates that he may have applied for the Student visa with the intention of further developing his career in Australia, rather than his stated plans. I have concerns that the Student visa may be used to maintain ongoing residence and to circumvent the intentions of the migration program.
I note that the applicant does not otherwise have family ties to Australia, nor is there any evidence that he is in a relationship, and I make no adverse findings regarding these matters.
The applicant has lived in Australia since January 2012 and has been progressing with his current course of study. I therefore make no adverse findings about his knowledge of living in Australia or of his education provider or intended course of study.
Value of the course to the applicant’s future
The applicant claims that he intends to open a branch of his current employer’s business in South Korea and enter a partnership with his current employer. The business will involve the importing and exporting of Korean and Australian products. The applicant claimed at the hearing that in order for him to do this, he needs to do more study. He claims that he will learn more English and that he needs to know the needs of Australian businesses. While I accept that the Advanced Diploma of Business is relevant to the applicant’s stated plans to open a branch of an existing business in South Korea, I have concerns that the applicant has already obtained an Advanced Diploma of Leadership and Management and has worked in the food wholesale industry with three different companies since February 2014. I consider that the applicant’s completion of the Advanced Diploma of Business may only marginally improve the applicant’s business and employment opportunities in his stated field in South Korea when regard is had to his over eight years of experience working in this field and his existing Advanced Diploma qualification in Leadership and Management.
Further concern is raised by the applicant’s responses to questions about what he has learned from his studies in the Advanced Diploma of Business (which he commenced over a year ago, in July 2021). The applicant responded that he has learned about online home pages, as well as managing people, day-to-day management and knowledge management. The Tribunal has concerns that the applicant already has a Certificate IV in Marketing, which would have provided him with knowledge about websites or ‘online pages’ (as translated), as well as an Advanced Diploma of Leadership and Management, which would have covered skills relating to management. The applicant then stated that the focus of his current course is on HR and labour management, rather than on sales management, however when it was put to him that HR and labour management are also covered in the Advanced Diploma of Leadership and Management, he accepted that this was the case, but indicated that learning about principles and applying them to the workplace are two different things. He claimed that he still needs to learn and develop.
I find the applicant’s claim about needing to know about the needs of Australian customers and about business needs in Australia to be vague and unconvincing, given his over eight years of experience in working with three different wholesale food companies. The applicant’s evidence about the value of the course to his future raise significant concerns that he has not enrolled in the proposed course of study for his stated reasons, but rather to extend his stay in Australia or to maintain ongoing residence.
In relation to his claim that the course will improve his English language skills, I consider that the applicant has been present in Australia since 2012, has been studying since 2014 and completed over 12 months of English language studies in Australia between 2014 and 2015. I consider the applicant has had sufficient opportunity to develop his English language skills, and find that his proposed studies at the same level as one of his existing qualifications, may only marginally improve his English language skills over and above those he has gained over the past ten years.
I consider there is insufficient information before the Tribunal regarding the remuneration the applicant could expect to receive in his home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study. However, for the reasons set out above, I have concerns regarding the value of the course to the applicant’s future.
The applicant’s immigration history
As noted above, the applicant arrived in Australia in January 2012. He has held two Working Holiday visas, followed by three Student visas and associated Bridging visas. He now proposes remaining in Australia at least until July 2023, which will bring his stay in Australia to over 11 years.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Given the length of time the applicant has now spent in Australia on Working Holiday, Student and associated Bridging visas, the Tribunal is concerned that a further Student visa may be used primarily to maintain residence.
While I have considered the applicant’s explanations for why he has not made greater progress with some of the courses of study he was enrolled in, I have concerns that the applicant has now returned to studying a course in Business after a gap of approximately seven years, in between which he chose to study courses in Marketing and then in Leadership and Management. I have also taken into account the applicant’s progress with his enrolment in his current course, despite the visa refusal and despite the closure of the college in which he was initially enrolled in this course and have given this weight in the applicant’s favour. I nevertheless have concerns that the applicant has enrolled in vocational courses in various fields and has now returned to an enrolment in Business primarily to obtain a further Student visa and to maintain ongoing residence, rather than for his stated reasons.
I do not make adverse findings regarding the remaining factors relating to the applicant’s immigration history. There is nothing to indicate that the applicant has not complied with the conditions of his visas in Australia. There is nothing to indicate that he has an adverse visa or migration history to any other country. There is nothing to suggest that he has previously been refused a visa application or had a visa cancelled or considered for cancellation. There is nothing to indicate that he has any other applications for a different class of visa which are yet to be finally determined. However, for the reasons provided above, I have concerns that the Student visa may be used primarily for maintaining ongoing residence. I give weight to the applicant’s circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia.
Any other relevant matters and conclusion regarding findings
The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Frank Russo
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2022] AATA 3755

26 October 2022

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