Jiang (Migration)

[2019] AATA 5439

Jiang (Migration) [2019] AATA 5439 (25 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jiekun Jiang

CASE NUMBER:  1717793

HOME AFFAIRS REFERENCE(S):          BCC2017/1689582

MEMBER:Penelope Hunter

DATE:25 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 25 July 2019 at 9:13am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine student – migration history – several course enrolments – no strong incentive to return home – unemployed – economic reasons – enrolments to extend stay in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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 31 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 11 May 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 visas 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.

   BACKGROUND 

4. The applicant is a citizen on China. He applied for the visa in order to undertake study in English from 15 May 2017 to 29 September 2017, and then a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management with course dates from 9 October 2017 to 5 April 2020.

5. The applicant set out in his visa application that he had previously been employed as a sales manager with the Ghangzhou Gundi Fashion Ltd from 2006 to 2015, and prior to arriving in Australia as a marketing manager with Chuanghau Building Studio Limited. He had previously undertaken study in a Diploma of Business Administration at Jilin Normal University in China. The applicant set out in a statement accompanying the visa application the following relevant information:

   i.He wished to study Leadership and Management to facilitate his future career. During his career he had faced some difficulty managing employee relations and managing budgets and he sought the opportunity to improve in business.

   ii.As a leader of a department, management skills were very important to his career development and would enable him to have critical thinking.

   iii.He visited Australian Ideal College and spoke with students who have studied there and knows their study mode and courses to be professional and practical.  He also liked the study mode in Australia which was focused on interests and experience rather than the more score-focused Chinese education.

6. In response to a request for further information from the Department, the applicant submitted a copy of a residential tenancy agreement, an employment income certificate (and translation), a leave without pay certificate (and translation), curriculum vitae, course brochures, bank deposit certificate, photographs and further submissions. In his submissions the applicant set out the following further relevant information:

   i.When he finished college in China he started work immediately, and after working hard he became a sales manager. After he took on this role he became aware of the involvement of many international businesses in China’s economy. Due to his poor English skills and the lack of project management knowledge he could not fit in, or even understand, the contemporary global business environment. He could get a good income as a sales manager but not a sense of his next achievement.

   ii.During his travel in Australia he heard about the good reputation of Australian education from friends and people that he met. He obtained some education brochures and after reading them he realised that Australian Ideal College could provide him with a wide range of knowledge required for his future career path.

   iii.He then spent time talking with his family and company about his ideas and they supported him. His company gave him full trust and approved leave without pay for the full study period. His sister said she would take good care of his family and he would return to accompany them during any study break.

   iv.After graduation he will return back to China to his current position in the company.

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

   i.The migration history of the applicant was of concern. The applicant arrived in Australia on 13 February 2017 on a Visitor visa which was valid for three months after his first arrival, with no intention to study full-time. Departmental records record that on his incoming passenger card he declared he only intended to remain for 12 days for a holiday.  He lodged an application for a Student visa on 11 May 2017, intending to study courses that would see him remain in Australia for three years. The delegate was not satisfied that that a person travelling as a tourist would make such a significant change from their original intention without a greater level of planning and preparation prior to arriving in Australia.

   ii.The applicant was single with no dependent children or family members. The delegate was not satisfied that his ties of his parents and one sibling constituted a strong incentive for him to return home given his proposed period of future stay.

   iii.The applicant had not demonstrated any property, business or investments in his name in China. In his visa application he indicated that he was unemployed having resigned from his employment on 17 March 2017, shortly after his arrival in Australia. The delegate was not satisfied that the applicant would be compelled to return to China for any economic reasons.

   iv.The applicant said in his visa application that he would be looking for a job related to sales and management after finishing his study and indicated that he had no offer of employment at the completion of his studies.

   v.The applicant had not provided any detailed or convincing testimony as to how his proposed Australian qualification would assist him in achieving his career goal.

   Tribunal application

8. The Tribunal received an application for review from the applicant on 12 August 2017.

9. On 18 October 2018 the Tribunal received further documentation from the representative for the applicant. This included a medical certificate for the applicant’s grandmother, a medical certificate for the applicant’s grandfather, videos and photographs, a copy of the applicant’s household registration and translation, birth certificate of the applicant’s father, posters regarding lost children, birth certificate of applicant’s brother’s son and daughter, and a certificate of completion of a course of general English at Australian Ideal College issued 6 October 2017, and a further two courses of General English issued by Sunshine Coast International College on 21 May 2018 and 7 September 2018. The representative for the applicant provided the following information:

   i.The applicant completed studies in English from 15 May 2017 to 29 September 2017.

   ii.From 30 September 2017 to 11 March 2018 he had a study gap because he was affected by family issues. His grandmother and grandfather were sick and under hospital treatment and an increasing number of lost children in his hometown made him worried about his niece and nephew.

   iii.The applicant returned to study English from 12 March 2018 and was enrolled in a further course commencing on 15 October 2018 and concluding on 11 October 2019. Then he would study a Certificate II and Certificate III in Business from 28 October 2019 to 15 November 2020. Following this he proposed to undertake a Certificate IV in Business and Technology Education from 4 January 2021 to 4 July 2021. Relevant Confirmation of Enrolment (CoE) in the courses were also submitted.

   iv.The applicant had been offered a job in China once he completed his studies and would definitely leave for his career in China.

10. On 2 July 2019 the Tribunal received further documents and submissions from the representative of the applicant. This included the following:

    i.A Certificate of Completion of a course in General English of 32 weeks duration from 12 March 2018 to 21 June 2019, issued on 25 June 2019 from Sunshine Coast International College.

    ii.A CoE for a course of General English from 12 August 2019 to 1 November 2019 at Sunshine Coast International College.

    iii.A CoE for a Course in General English from 6 January 2020 to 27 March 2020 at Sunshine Coast International College.

    iv.A submission that the applicant will continue studying Certificate III and IV in Business at the Australis Institute of Technology and Education in the future.

11. The applicant appeared before the Tribunal on 4 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

12. The applicant was assisted in relation to the review by their registered migration agent.

13. Following the Tribunal hearing, on 11 July 2019 the following documents were received:

    i.Chinese drivers licence of the applicant valid to 2021.

    ii.Certificate if registration for an Audi vehicle in the name of the applicant issued 2015.

    iii.Property Certificate, No 54, Jiangcuo Lane, Donger Village, Dongzhou Street Honghaiwan District Shanwei District.

    iv.CoE at the Harbourside Institute Australia Pty Ltd in a Certificate IV in Business from 11 May 2020 to 6 November 2020.

    v.CoE at the Harbourside Institute Australia Pty Ltd in a Diploma of Business from 9 November 2020 to 5 November 2021.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. 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?

16. 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.

17. 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.

18. Having considered the applicant’s claims against all the factors specified in Direction No.69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

19. The Tribunal accepts that the applicant has undertaken some English study while in Australia and at the time of the Tribunal hearing had a current enrolment. Following the hearing the applicant has also submitted enrolment in a further program of business studies. However enrolment and the undertaking of courses are just some of the factors that the Tribunal is to consider.

20. The applicant claimed that he wished to undertake his studies in Australia because in China there was no environment to speak English outside the class. It has been over two years since the applicant initially applied for a student visa. In that time he has not progressed beyond English studies, and on his current enrolment is proposing to continue only English studies until March 2020. He has provided evidence to the Tribunal of the completion of two courses of English. He claimed that his initial course had an Indian teacher and the environment was not suitable. This raised questions for the Tribunal as to the extent of the actual research in his proposed course that the applicant undertook prior to applying for the visa. The applicant also had a six-month study gap, from 30 September 2017 to 11 March 2018, as he claims he was affected by family issues. He has provided evidence that his grandparents required medical treatment and that his brother had concerns for the safety of his children. The Tribunal accepts that these events would have caused the applicant distress. Following this the applicant resumed his study in English. He has produced for the Tribunal a Certificate of Completion of another course of General English. The Certificate records that the 32-week course was undertaken from 12 March 2018 to 21 June 2019, a period of more than 67 weeks. It is transparent from the evidence he has submitted that, although the applicant may have maintained enrolment, clearly the applicant was not involved in continuous full-time study. At the Tribunal hearing he claimed that he required further English study because his current level of English was only quite basic. The Tribunal raised with the applicant whether Australia was providing the right environment for him to learn English if his level was still only basic. Overall, the Tribunal had concerns as to whether the applicant had actively engaged in his studies to date, and whether he was seeking to remain onshore for other reasons.

21. The applicant gave evidence to the Tribunal that he was proposing further studies in Business following the completion of his English course. He was proposing to undertake these courses at his current education institute, the Sunshine Coast International College.  Pursuant to the provisions of s.424AA of the Act the Tribunal raised with the applicant information recorded in his Provider Registration and International Student Management System (PRISMS) records that his further enrolments in the Certificate II, III and IV in Business had been cancelled on 27 March 2019 for non-commencement of studies. The applicant was also provided with a copy of the record at the hearing. The applicant was informed that the information was important because it raised questions for the Tribunal as to whether the applicant genuinely intended to undertake further study beyond English. The applicant elected to comment immediately and claimed to have been unaware that these enrolments had been cancelled, and that he had been informed his enrolments in his Business courses would continue. The Tribunal found it difficult to accept that the applicant would not have been informed his enrolments had been cancelled or that he would not be aware that he could not continue his proposed enrolments having engaged in further English courses. The applicant  undertook to provide updated enrolments following the Tribunal hearing. It is accepted that the applicant has submitted further CoEs for a Certificate IV in Business and a Diploma of Business commencing on 11 May 2020. However, the applicant is now proposing to study at a different education institute, the Harbourside Institute Australia Pty Ltd. No explanation had been provided to the Tribunal for this change. There is also no explanation before the Tribunal regarding the change in courses. The applicant was previously proposing to commence with a Certificate II in Business and conclude with a Certificate IV. The updated CoEs record that the applicant will commence with a Certificate IV and then go on to a Diploma of Business. These further enrolments will further extend his time in Australia from July 2021 to November 2021. The Tribunal was left with questions as to the level of research that the applicant had undertaken into his proposed course and why he now felt that Diploma studies were necessary. Overall there were questions for the Tribunal as to whether the applicant had undertaken his enrolments for the purpose of extending his stay in Australia rather than genuine interest in the courses. Other than his desire to improve his English skills, the Tribunal is not persuaded that there are reasonable reasons for the applicant undertaking studies in Australia rather than his home country.

22. The Tribunal accepts that the applicant had family ties in his home country, his parents, grandparents, his sister and her family, and these would appear to act as an incentive for the applicant to return. It is noted that as part of the visa application the applicant set out that he would return to visit his family during any study break. Although he had a significant study break between September 2017 and March 2018 he did not return home. The applicant would have the Tribunal accept that he was so distressed by the health problems of his grandparents and potential security concerns for his niece and nephew that he could not engage in study at this time, still he did not return. In response to the Tribunal’s concerns the applicant claimed that he was able to communicate with his family via the internet and could video message, also that his parents had assured him that there was nothing he could do. However as the applicant was not engaging in study at this time, the Tribunal questions the strength of these family ties when he did not take any steps to return. It is also noted that the applicant has taken 67 weeks to complete a further 32-week English course, it would appear that there was again time for other study breaks. Yet the applicant has not returned home since his initial arrival. Further, at the hearing the applicant disclosed that he had married in Australia in March 2018. His distress at his family situation did not delay this union. His family have not visited him in Australia and they have not met his wife in person. The Tribunal has considered the evidence of the applicant that his family have spoken to his wife via video, however in the circumstances the fact that the applicant would take this significant life step without having his wife meet his family or himself meeting his in-law’s raises further questions for the Tribunal regarding the strength of the applicant’s family ties.

1. The applicant told the Tribunal at the hearing that he had property in his name in China. Following the hearing the applicant produced a translation of a property certificate. The Tribunal questioned why the applicant had not previously claimed to have held property or produced evidence of such, to which he did not have a satisfactory explanation. It is accepted that property in China may provide for an incentive for the applicant to return.

2. The applicant claimed that he had employment to return to in China, and his employer had granted him leave. The Tribunal queried whether it was realistic that an employer would leave a position open for the applicant from 2017, to potentially 2022, after he had left on a holiday for a few weeks. The applicant then claimed that if the company needed him that he would return earlier. The Tribunal had difficultly reconciling the claims of the applicant that he had a position to return to with the information he set out in his visa application that he had resigned from his employment on 17 March 2017, and that he would be looking for a job in sales and marketing on the completion of his studies. At the hearing the applicant appeared surprised when the Tribunal raised this information with him and suggested that his agent may have been confused. However for the Tribunal his initial claims raised doubts as to his employment. The Tribunal further noted that following a request from the delegate, the letter he had supplied from his employer in China had set out that he would be returning in December 2019. The applicant was now proposing study for several years after that and the Tribunal questioned whether the letter could be relied upon. The applicant claimed that he was in contact with his employer and they were aware of the progress of his studies. At best, if the applicant’s employer was prepared to grant him a further two years leave, it indicated that he was not essential to the operation of the business. On further questioning from the Tribunal, the applicant disclosed that he was not related to his employer but that he was a close friend from university. The Tribunal noted that the applicant had worked for this employer for approximately two years prior to travelling to Australia and asked the applicant whether he had been employed because of this friendship. The applicant responded, ‘not entirely’, that his friend was looking for someone that he could trust and the applicant also had experience in sales and marketing so he was employed. In response to further questions from the Tribunal the applicant claimed that he needed to study in Australia to improve his English so that he could assist his employer with international sales and be professionally more competitive. However the applicant was unable to demonstrate to the satisfaction of the Tribunal why he needed to undertake further studies beyond his proposed English courses. For example, when the Tribunal asked him why he had changed from his courses in Leadership and Management to courses in Business, the only explanation offered by the applicant was that the proposed diploma level course was above his level. His response did not address the content of the course or its application to his employment. While the Tribunal accepts that the applicant’s friend find may be able to find a position in his business for the applicant if he returns, the Tribunal is not satisfied that it is a genuine career opportunity for the applicant. The Tribunal does not accept that his decision to study in Australia was motivated by desire to progress in this employment, or that his proposed studies are necessary to his ongoing employment. Overall, the Tribunal is not satisfied that the applicant’s employment ties offer a significant incentive for him to return.

3. It is accepted that the applicant has no ongoing military service obligations. The applicant claimed that there were no incidents of civil or political disturbance that would act as an incentive for him to remain onshore. The applicant claimed that he had no fears of harm in China.

4. The applicant was married in Australia in March 2018. He lives with his wife whom he met after his arrival in 2017. He told the Tribunal that his wife is originally from China but possesses permanent residence in Australia. The Tribunal considers that this is a significant tie in Australia that may act as an incentive for him to remain. In response to the Tribunal’s concerns the applicant said that she would return to China with him when he had finished his studies. In assessing this evidence the Tribunal notes that prior to their marriage, the applicant has not taken his wife to his home, to meet his family and has not personally met her family in China, basic steps that a couple might take if they intended to establish a home and future in China. The applicant was evasive in his evidence as to his wife’s employment and claimed that she was a freelancer. On further questioning from the Tribunal he said she worked sometime in sales. The applicant claimed that he was not working in Australia. The Tribunal had concerns whether he was being forthcoming about his personal circumstances.  His ongoing, changing enrolment and slow progress in his current studies indicates to the Tribunal that the applicant may be using the student visa program as a means to remain onshore.

5. As to the applicant’s knowledge of his intended course of study and the associated education provider, it is noted that following the hearing the applicant had changed both his courses of study and education provider. There has been no explanation provided for this change, or the value of this study to the applicant. Again this suggests to the Tribunal that the applicant is enrolling in courses for the purpose of extending his time onshore.

6. With his latest enrolment in a Certificate IV and Diploma of Business, the applicant is seeking to undertake studies similar to those he has already completed in China. He already holds a Diploma of Business Administration; it does not appear that he is seeking to progress academically. As previously set out it is accepted that the applicant’s friend may offer him employment if he returns, however the Tribunal is not satisfied that the courses will assist the applicant further to obtain employment or as to the relevance of additional studies in business for his future employment given his existing qualifications and previous 14 years employment working in sales. The applicant has also not demonstrated to the satisfaction of the Tribunal that he could expect to receive additional remuneration as a consequence of his studies. The applicant’s reasons for wanting to undertake studies in English were plausible, however the Tribunal must balance this with his slow progress and the fact that after almost two years of study he considers he has only basic skills. Overall, the Tribunal was not satisfied as to the value of the applicant’s planned courses of study to his future.

7. The applicant’s travel history to Australia is of concern, particularly that he arrived in Australia in 13 February 2017 on a Visitor visa, and declared that he was only staying for 12 days, yet now proposes a course of study that would see him remain onshore until at least November 2021. The Tribunal concurs with the concerns of the delegate that it is unlikely that a person would make such a significant change from their original intention without a greater level of planning and preparation prior to arriving in Australia. The Tribunal holds concerns that the applicant was not forthcoming about his original intentions and there are ongoing concerns about the transparency of his circumstances. As to the remaining factors in relation to his migration history, there is no evidence that the applicant has previously applied for an Australian visa and been refused, there is also no evidence that the applicant has been refused visas from other countries, or had visas cancelled or considered for cancellation. The applicant told the Tribunal that he had previously travelled to South Korea and there is no evidence that he had not complied with the laws of that country.

8. In assessing the totality of the evidence against the relevant factor in Direction No.69, the Tribunal is not satisfied that he is genuine in his reasons for studying in Australia and why he wishes to undertake his proposed courses. The Tribunal has considered all of the evidence including the applicant’s personal circumstances, his family and economic ties to China, his potential future employment and the other matters he has raised. The Tribunal however gives more weight to the lack of value to his studies, the delay in the progress of his studies and the fact that he has entered into a marriage with an Australian permanent resident. The Tribunal is of the view that the applicant is using the student visa program to maintain residence in Australia.

9. 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).

10. 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.

11. 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

12. 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.