Lau (Migration)

[2020] AATA 2988

Lau (Migration) [2020] AATA 2988 (8 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ka Ni Lau

CASE NUMBER:  1829573

HOME AFFAIRS REFERENCE(S):          BCC2018/4009756

MEMBER:Robert Cumming

DATE:8 May 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa.

Statement made on 08 May 2020 at 10:23am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – civil unrest in Hong Kong – lengthy stay in Australia – variety of Vocational courses – employment offer in Hong Kong – application for spouse visa – settled intention to later seek permanent residence – maintaining ongoing residence in Australia – relevance of studies to future employment – decision under review affirmed          

LEGISLATION

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

CASES

Saini v Minister for Immigration and Border Protection [2015] FCCA 2379

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 Home Affairs on 20 September 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 June 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis 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 the applicant intended genuinely to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 7 November 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE 

6. 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 the applicants for the visa, need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.

   Genuine applicant for entry and stay as a student (cl.500.212) 

7. 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?

8. 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, a copy of which was provided to the applicant in the course of the application by the Tribunal and is also 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.

9. 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.

10. The Tribunal has had regard to all the information supplied to the Department of Home affairs with the visa application (which is on the Departmental file provided to the Tribunal) and all the information supplied to the Tribunal by the applicant. In particular, the Tribunal notes the submissions and supporting documentation provided to the Tribunal on 9 October 2018, the Request for Student Visa Information form (Information form) and other supporting documentation received by the Tribunal on 17 September 2019 as well as the supporting documentation received at hearing on 7 November together with the oral evidence and submissions given by the applicant at the hearing.

11. The Tribunal notes that it has on its file certain information which was not provided by the applicant. These were printouts from the Provider Registration and International Student Management System (PRISMS) and also the Departmental movement records. The Tribunal notes that the applicant has, in the Information form, given information largely to the same effect as the information contained in those two printouts.

12. Nevertheless, out of fairness, and in accordance with the provisions of s.359AA of the Act, the Tribunal gave copies of the printouts to the applicant and the applicant was given time to consider the material and to comment upon it. Having had time to consider the material, the applicant indicated to the Tribunal when asked that she did not require any additional time to consider the information and did not intend to seek an adjournment to make submissions in relation to the information in the printouts. The applicant gave some explanation as to the enrolments as set out at the beginning of the PRISMS records but otherwise did not challenge the accuracy of the information in the printouts.

13. Based on all that information, the applicant’s circumstances may be summarised as follows:

    (a)The applicant is a 27-year-old holder of a British National (Overseas) United Kingdom passport born in Hong Kong who first arrived in Australia on 4 October 2009 as the holder of a Subclass 572 Student Visa.

    (b)The applicant has links in her home country in the form of her mother, father and younger brother with whom she keeps in contact on a regular basis. At the time of the hearing, her other brother was in Australia on a working holiday visa and was at that stage working at Mundubbera in regional Queensland.

    (c)The applicant says that her family are middle class and have been able to provide financial assistance to her on an as required basis. Were she to have to return to Hong Kong earlier than planned, she would not suffer financially as a result of that, having family support in that regard.

    (d)The applicant indicated in her completed Information form that she had no concerns in respect to requirements for military service commitments or for political and civil unrest in the area of Hong Kong where her family lives.

    (e)However at hearing, Hong Kong was undergoing a period of civil strife with riots in the street and actions by the Hong Kong police being taken to suppress the actions of the rioters. Indeed, the applicant said that her mother had suffered the consequences of such behaviour in that she had inhaled tear gas in the course of her being outside and undergoing her usual activities. This, the applicant said caused her significant stress. She said she was very keen to get home to support her parents who were aging.

    (f)In Australia, the applicant has a circle of friends drawn from study and work with whom she sometimes socialises although the applicant did say that she was not particularly social and really her only outside activities involved going grocery shopping. At the time of the hearing her brother and a cousin were both in Australia on working holiday visas. The applicant said that those visas were shortly due to terminate by which time both her brother and cousin would return to Hong Kong.

    (g)In addition, the applicant did have her partner, Jay Thuong, living with her. Although born in Vietnam, Mr Thuong had come to Australia at a young age and was now an Australian citizen. The applicant indicated in the Information form that, in August 2019, she had applied for a Subclass 309 Partner (Provisional) Visa. She said at hearing that she expected this application would take some time to process. The applicant said that Mr Thuong had visited Hong Kong for the first time with her when she travelled for a visit there to see her parents in August 2019 and she said he quite liked the situation there in Hong Kong.

    (h)The applicant has worked fairly consistently in Australia, particularly since 2013. In the Information form the applicant lists some twelve different employers she had in that time. One of the positions was as a volunteer and also two positions were as an intern, those three positions not being remunerated but all other positions were remunerative. Some were as a shop assistant but the majority have been accounts based positions and, at hearing, she was employed by Exclaim IT Pty Ltd in a senior accounts and payroll officer position earning approximately $AU60,000 per annum.

    (i)Her partner, Mr Thuong, who is aged 33 years, was at hearing not in employment according to the applicant. He had previously worked in positions in a bank and also as the manager of a bottle shop but evidently had eyesight problems which had caused him to cease work.

    (j)Prior to arrival in Australia, the applicant had completed secondary school only to year 11 level. Her work history in Hong Kong includes a short period employed by the Standard Chartered Bank during the period November 2011 through to February 2012 which was during one of her return visits to Hong Kong from Australia.

    (k)The applicant has undertaken a number of courses of study during her time in Australia. Indeed, her PRISMS record shows she has received some 16 Confirmations of Enrolment (CoEs). Initially, these involved General English studies in October 2009 through to January 2010 which were followed by some attempts to undertake business studies. The applicant indicated this was presented as a suite of courses which did not suit her and accordingly a number of her CoEs were cancelled.

    (l)After that, in the period February 2010 to June 2010 the applicant completed a Certificate III in Employment, Education and Training followed by a Certificate III in Financial Services (Accounts Clerical) which she completed in the period July 2010 to December 2010. This was followed by a Certificate IV in Financial Services (Accounting) completed in the period February 2011 to June 2011. The applicant then completed a Diploma of Accounting in the period July 2011 to December 2011 and, following several enrolments, finally finished a Bachelor of Business in February 2014.

    (m)For a period, the applicant then had a Temporary Graduate visa (in the period August 2014 to February 2016) after which time the applicant returned to study attempting a Diploma of Interpreting which was to be conducted in the period February 2016 to July 2016. This, the applicant said, proved to be too difficult for her to complete. The studies focussed on interpreting between the Mandarin and English languages whereas her first language is Cantonese.

    (n)Ultimately, the applicant enrolled in a Graduate Diploma of Management (Learning) which she was undertaking at the time of hearing which was being conducted in the period June 2018 to August 2020. At hearing, the applicant indicated she was hopeful that her progress would be such that she would be able to finish her studies a little earlier, likely in June 2020.

    (o)On conclusion of those studies, it was the applicant’s intention, she stated at hearing, to return to Hong Kong and take up the position with Welslandis International Limited in the position of Management Accountant which position had been offered to her by letter dated 16 July 2018 for commencement on 15 August 2020 (or on completion of her Graduate Diploma of Management prior to that date) at a salary of $HK300,000 per annum. That letter together with a further letter from the company dated 29 July 2019 reiterating the job offer were in evidence on the Tribunal file.

    (p)The applicant stated this job offer came about following an interview with the company during her visit to Hong Kong. She had seen during her visit there some jobs offered and had made applications for these. The applicant said she had had a face-to-face interview with the director of the company who had signed the employment letters, a Qu Cal who was the managing director and the applicant said she had been able to give some pointers to Qu Cal about improving accounting practices at the firm because the applicant said Qu Cal was having difficulty with staff and was not easily able to contain expenditure which the applicant said she was able to help with.

    (q)Based on the information regarding travel as confirmed by the applicant in the movement records and as noted in her completed Information form, the applicant initially arrived in Australia on 4 October 2009 as the holder of a Subclass 572 Student Visa and subsequently had been granted a total of four more Student visas as well as a Temporary Graduate visa and a Working Holiday visa. The applicant indicated that, but for the current visa application under review, she had not had any other visas cancelled or refused in Australia and she indicated that she had been complying with her visa conditions. As noted previously, at hearing, she was awaiting the outcome of her application for the Subclass 309 Partner (Provisional) Visa.

    (r)Since that initial arrival in Australia, the applicant had returned to Hong Kong on six occasions (totalling in all approximately 42 weeks) and she had also departed for two short holidays in 2018 and 2019, once for approximately a week in Fiji in December 2018 and once for approximately four weeks in June 2019 to visit Japan.

    (s)In addition to the trips to Fiji and Japan, the applicant also gave evidence that she had travelled to Macau, China and Taiwan. The applicant gave evidence that she had no difficulties with visa requirements or the migration laws during the visits to all those particular countries.

    (t)Apart from dealing with the issues of concern in explaining her circumstances overall, including given explanations as to her intentions and history in Australia, the applicant did not suggest there were, or give evidence concerning, any other matters which may relate to her genuine temporary entrant status in Australia.

14. During the hearing, the Tribunal put to the applicant possible concerns it may have in respect to several issues.

15. In no particular order, the first concern related to the applicant’s job offer with Welslandis International Limited. This is evidently a food delivery business. The applicant’s circumstances about receipt of this offer have been described above in these reasons and the applicant was questioned on why it was that a business could guarantee employment some two years hence when no one really could foresee the future and what business conditions would be like. The Tribunal put to the applicant, based on her evidence, it sounded like the situation was that a person or persons would be employed in the position but then, in mid-2020 she would return to Hong Kong and the person would be removed and she would be placed in the position. The applicant answered this by suggesting that the managing director was not satisfied with the quality of the staff he was getting and in any event her return would coincide when it was intended that a third office of the business would be open. This was against a background of a description of the business having a poor cash flow according to the applicant and also being subject to quite stiff completion in the food delivery business particularly services such as Uber Eats.

16. A related concern with the job offer was the salary. At hearing, the offered salary, the applicant agreed when suggested by the Tribunal, equated to approximately $AU55,000 per annum.  The Tribunal put to the applicant that this was less than the $AU60,000 she was earning in a payroll officer position presently.  Indeed, the applicant had suggested that with her qualifications she could earn at least to the order of $AU100,000.  The applicant’s response to this issue was to suggest the cost of living in Hong Kong was less than in Australia.

17. The next issue of concern related to the applicant’s application for a Partner (Provisional) Visa which had only been applied for a few months before the hearing. It was put to the applicant that such a course of action was designed to allow residence in Australia on a temporary basis with the ability then to move to a Subclass 100 Visa allowing permanent residence in Australia. It was suggested to the applicant that such visas cost to the order of at least $7,715.00 which was a large investment and was indicative of an intention to remain in Australia. The applicant suggested that her partner had visited Hong Kong and was happy with the situation there. The Tribunal suggested it seemed strange for someone who would wish the Tribunal to believe they did not possess an intention to have residence in Australia on the basis of a partner visa with an Australian citizen, would spend at least $7,715.00 for such a visa and then not wish to persevere with it. The Tribunal asked the applicant if she was then going to withdraw the application. The applicant was not drawn on this and did not positively state that she would do so, instead deflecting the answer to suggest that her real motives were to return to Hong Kong.

18. It is also to be mentioned that during the course of discussions relating to the applicant’s situation and particularly the partner visa, a period of five years was mentioned by the applicant which the Tribunal understands relates to potential processing times for the visa. The Tribunal put it to the applicant that it may then seem that the situation was that she would return to Hong Kong on a temporary basis with a view then to return to Australia. Once again, the applicant deflected her answer in this regard and reiterated her intention to return to Hong Kong on completion of her studies in 2020.

19. A further concern in relation to the job offer related to the nature of the studies the applicant was undertaking. It was put to the applicant that her position in a management accounting position  related to producing documents about how the business was operating and how performances could be judged and improved. As such that was an accounting-based position rather than a management-based position. The applicant suggested that the studies she was undertaking would help with that position because she was undertaking studies relating to management which would help the business. The applicant was invited to suggest just what particular subjects she was studying that she had not already studied in her long history of accounting, business and financial services studies that would assist her in the position. The applicant suggested she was learning subjects such as emotional intelligence and communication skills which would help in that regard. The applicant was not able to provide any greater detail as to such subjects other than to suggest she had not studied those before and this also was the reason why she was undertaking the studies in Australia because she was familiar with the Australian education system and found that while theoretical studies would be the same in Hong Kong she felt the practical work done in Australia, such as in role-plays, were better for her than she could gain in Hong Kong.

1. As noted above, the key issue the Tribunal has to decide in this case is whether the applicant intends genuinely to stay in Australia temporarily. On that issue, the consideration set out in cl.500.212(a) of Schedule 2 to the Regulations govern the matters the Tribunal needs to consider.

2. In assessing whether an applicant meets that genuine temporary entrant criterion, the Tribunal must have regard to Direction No.69. As also noted above, that Direction is not to be used a checklist, but rather as is intended to guide decision makers in considering the applicant’s circumstances as a whole in reaching a finding as to whether the applicant satisfies that genuine temporary entrant criterion.

3. The Tribunal also notes that the expression “genuinely intends to stay in Australia temporarily” has been subject to judicial consideration in the context of the equivalent pre 1 July 2016 student visa criteria. It requires that the applicant must unqualifiedly intend his or her stay to be temporary. In Saini v Minister for Immigration and Border Protection [2015] FCCA 2379 at [23], Judge Cameron held that an intention to remain in Australia, if qualified to do so at the end of the student visa, would amount to the lack of an intention to stay temporarily, because the intention to stay temporarily would not be unqualified. In upholding His Honours judgement, Justice Logan in the Federal Court ([2016] FCA 858 at [30]) held that what is required is an evaluation of intention at the time of decision, and if at this time there is a settled intention to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention genuinely to stay temporarily.

4. In adopting the process of consideration of Direction No.69 in this case and, after having considered all the factors in the Direction, the Tribunal finds that some of those factors are not of such significance, importance or materiality to its decision so as to tip the balance away from the view the Tribunal has taken of the applicant’s circumstances. This is not to suggest that those factors have been overlooked but rather the Tribunal, in considering its decision, has found these factors of lesser weight in balancing all those factors in coming to its decision overall on the merits of the review application.

5. Having had regard to the applicant’s evidence and submissions and her responses to the possible concerns raised by the Tribunal, as considered above, and giving consideration to all the factors specified in Direction No.69, the Tribunal makes the following findings:

   (a)At the outset, the Tribunal expresses its concerns as to the consistency of the applicant’s evidence. In particular, the applicant stated that the job offer with Welslandis International Limited in July 2018 followed face-to-face meetings with the managing director, Qu Cal. However, on the applicant’s own evidence, the applicant was not in Hong Kong at or about the time of the initial offer. Her departure from Australia prior to the job offer was in the period 14 July 2017 to 1 August 2017, some almost 12 months prior to the offer and her next departure to Hong Kong was not until August 2019, some 12 months after the offer. Indeed, the first overseas trip the applicant undertook after the job offer in July 2018 was in December 2018 which the applicant notes was a short holiday to Fiji. On that basis, therefore, the Tribunal has concerns about the reliability of the evidence of the applicant. Moreover, given the nature of the responses to certain questions which will be dealt with in more detail later in these reasons, the Tribunal does not have confidence in placing weight on those particular answers by the applicant.

   (b)In considering whether the applicant has reasonable reasons for not undertaking study in her home country, the Tribunal notes that it can accept that there is advantage to the applicant in improving her English language skills by undertaking study immersed in an English speaking country such as Australia. However, the Tribunal notes that English is an official language of Hong Kong and that particular reason does not carry particular weight as far as the Tribunal is concerned. It seems that the applicant has undertaken all her studies since school in Australia over a significant period (approximating 10 years at hearing) and it seems that the applicant is relying on a suggestion on the superior practical aspects of training (for instance, the ability to do role-plays) as distinguishing studies in Australia from those in Hong Kong where the applicant admitted in evidence that the theoretical content would be similar. The Tribunal does not consider the applicant’s reasons significantly convincing in relation to this aspect.

   (c)The applicant has links in her home country in the form of her parents and brothers. She does not have any property there but does have property in Australia. The applicant’s conduct in remaining in Australia for a period of approximately 10 years, albeit with ongoing visits to Hong Kong during that period, combined with the fact that she is here in Australia with her partner and has applied for a Partner (Provisional) Visa, and where she is working earning approximately $60,000 per annum as against approximately expenses of $26,400 according to the Information form with the ability to call on her parents for extra funds and the ability to remain in contact with her parents on an ongoing basis, all lead the Tribunal to the conclusion that the applicant has made a life for herself here in Australia and there is not a significant incentive for her to return to her home country.

   (d)As to economic circumstances in the applicant’s home country, the Tribunal notes there would be family support if the applicant had to return. Accordingly, the Tribunal does not consider the economic circumstances of the applicant in her home country would present as a significant incentive for her not to return to her home country.

   (e)There are no requirements for military service commitments affecting the applicant which would present a significant incentive for her not to return to her home country.

   (f)As to the situation regarding political and civil unrest in the area where the applicant’s family are located in her home country, at hearing there was a concern on the part of the Tribunal in that regard. The applicant stated she felt guilty that she was here safe and sound while her parents were over there particularly in the circumstances where her mother had suffered tear gas inhalation as a result of the rioting. The fact that the applicant elected to stay in Australia potentially might indicate reluctance on her part to return. However, given that the applicant was studying, the Tribunal takes a neutral view in respect to the applicant’s situation in regard to this particular circumstance.

   (g)In considering the circumstances in her home country, relative to the circumstances of others in that country, the Tribunal finds the applicant comes from a middle class family, but otherwise does not make any findings in that regard which are other than entirely neutral towards the applicant.

   (h)The applicant has ties in Australia namely a small circle of friends but most importantly her partner with whom she has applied for a Partner (Provisional) Visa which is understood leads on to the ability to obtain a Subclass 100 Permanent Visa and the fact that the applicant has been here studying a multitude of courses over some 10 years since initial arrival, leads the Tribunal to the conclusion that the applicant has made a life for herself here and the incentive is to remain in Australia and accordingly the Tribunal concludes that the student visa program is being used to circumvent the intentions of the migration program.

   (i)For those reasons also, the Tribunal finds that the student visa is being used to maintain ongoing residence in Australia.

   (j)As there is no secondary applicant, it is unnecessary for the Tribunal to consider whether the applicant has contrived a relationship for a successful student visa outcome.

   (k)As to the applicant’s knowledge of living in Australia, the Tribunal is satisfied the applicant has in her material provided sufficient knowledge of living in Australia and also in that regard in relation to her education provider. While the applicant could describe the sort of study she was undertaking in her course, the Tribunal nevertheless is concerned that this linkage does not satisfactorily explain why such study is necessary for her intended employment.  Her explanations were only in the most general of terms and did not address the level of her accounting qualifications and other business related studies and why that was no sufficient for employment in an accountant role. Her linkage seems to relate to the fact that the role was as management accountant rather than financial accountant and hence doing management studies was somehow relevant.  The Tribunal places little weight on the applicant’s explanations in this regard.

   (l)That latter point leads on to the consideration of the nature of the course and its consistency with other studies. The applicant indicated she was studying such subjects as emotional intelligence and communication studies which were at a level that she did not previously study, however the Tribunal, as noted, was not satisfied that the applicant could explain just exactly how those subjects would assist her in her management accountant’s position.

   (m)For similar reasons, the Tribunal is unable to find in favour of the applicant in regard to her current course of studies as being relevant to her proposed future employment.

   (n)The applicant gave evidence as to the remuneration she would likely receive which she stated was the equivalent of, at hearing, approximately $AU55,000 compared to the $AU60,000 she was already earning as a payroll clerk. The Tribunal has concerns that her likely remuneration in Hong Kong is less than she could otherwise obtain in Australia and the applicant’s suggestion that the cost of living was less in Hong Kong failed to convince the Tribunal in this regard. Indeed, the Tribunal notes a report by Mercer, the international consulting corporation, in a comparative survey of 209 world cities found Hong Kong one of the costliest cities when assessed on factors including housing, transportation, food, clothing, household goods, and entertainment. Of the world’s major cities, the costs of movie tickets, coffee, property rental and petrol in Hong Kong were the most expensive. Accordingly, the Tribunal places little weight on the applicant’s explanation as to remuneration.

   (o)It should be pointed out that the last factor is but one of several where the Tribunal is not convinced by the applicant’s evidence and places little weight on her answers.  It was not the sole factor going to the Tribunal’s decision or indeed of such materiality so as to result in a different decision if that factor is disregarded, however.  If it is excluded wholly from the decision making process, the Tribunal finds there are sufficient other reasons to support the Tribunal’s decision.

   (p)It should also be highlighted that the Tribunal places little weight on the purported job offer to the applicant from Welslandis International Limited. For a business that has cash flow problems and strong competition (as the applicant stated in evidence at hearing) to be able to guarantee a position some two years into the future does not present as inherently believable or the rational course of action by an employer. 

   (q)At the hearing, the applicant had been in Australia for some 10 years during which time she had returned to her home country for approximately 42 weeks (during some six trips) and she had also holidayed away from Australia for approximately five weeks. Were she to remain to the conclusion of her proposed studies, she will have been in Australia for approximately 10 years and eight months (if it is accepted that she will finish the course early) or some 10 years and 10 months in accordance with the schedule of the course as per the CoE.

   (r)As to previous visa applications for the applicant, but for the current visa application under review, the applicant has successfully been granted a total of five Student visas, a Temporary Graduate visa and a Working Holiday visa. There is no evidence to suggest any other visas that she has applied for have been cancelled or any other visas she has applied for have been refused. Similarly, there is no evidence that she has failed to comply with her visa conditions.

   (s)As to travel to other countries, there is no evidence before the Tribunal that in the applicant’s travels to Macau, China, Taiwan, Fiji and Japan that the applicant failed to comply with the migration laws of those countries.

   (t)As noted, were the applicant to remain in Australia to full completion of her studies she will have been in Australia for approximately 10 years and 10 months. This is in circumstances where the Tribunal is concerned that she has prolonged her studies and cannot with any degree of confidence in the mind of the Tribunal explain how her current studies will help her in a management accounting role and overall in circumstances where little weight is placed on that job in any event and in the further circumstances where the applicant appears well set up in Australia with her earnings and in the process of applying for a partner visa which despite the applicant’s protestations of her intentions to return to Hong Kong she refused to indicate that the visa would be withdrawn, which the Tribunal considers presents as a qualified intention with regard to the applicant’s temporary residence in Australia, and the fact that she can keep in contact with her parents regularly, all of which lead the Tribunal to the conclusion that the use of the applicant’s student visa is primarily for the maintenance of ongoing residence in Australia.

   (u)As there is no child secondary applicant, it is unnecessary for the Tribunal to make any findings in respect to the intentions of the applicant as a parent.

   (v)There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant.

6. Balancing all these findings, the Tribunal considers the weight of the evidence points more to those factors not favouring the applicant’s case rather than those factors which are supportive of her case. Through that balancing exercise, weighing the particular factors, most notably those set out in paragraphs 24(a), (b), (c), (h), (i), (k), (l), (m), (n) (p) and (t), the Tribunal considers those factors of materiality weigh more heavily to establish there is not a significant incentive for the applicant to return to Hong Kong and that the student visa is being used to maintain ongoing residence in Australia than do the other factors which are either neutral to or in the applicant’s favour.

7. Having had regard to all matters, including all the Direction No.69 requirements to which regard is required, 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).

   Conclusion on cl.500.212

8. 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.

9. 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

10. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa.

    Robert Cumming
    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.