Leung (Migration) - [2024] ARTA 846

Leung (Migration) [2024] ARTA 846 (11 November 2024)
Decision and
Reasons for Decision
Applicant:   Mr Chung Man Leung
Respondent:   Minister for Home Affairs
Tribunal Number:   2307375
Tribunal:   General Member G Hallwood
Place:   Adelaide Registry
Date:   11 November 2024
Decision:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 500 (Student) visa:
· cl 500.212 of Schedule 2 to the Regulations.

Statement made on 11 November 2024 at 4:30pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant and compliance with conditions – COVID restrictions and physical and mental health – counselling from provider and course restructured – current study progress – regular contact with family and friends in home country – some part-time work in Australia, but reliant on parents – employment and financial goals – compliant travel to other countries – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 May 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 March 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied the applicant intended to genuinely stay in Australia temporarily.
The applicant appeared before the Tribunal on 7 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the requirements set out in cl 500.212 of the Regulations.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Background
Mr Leung is a 28-year-old Hong Kong national who first arrived in Australia on a student visa on 8 February 2019. He completed his foundation year course on 29 November 2019 and was enrolled to commence a Bachelor of Social Science degree commencing on 24 February 2020.
He described the mental impact of the COVID 19 epidemic on his life making it impossible for him to return home to his family during their lockdowns, having to make decisions about whether to stay in Australia, and lockdowns and online learning imposed on him in Australia. Being depressed he told the Tribunal he was unable to focus at all, had an emotional breakdown, stopped eating and became physically as well as mentally unwell. He requested to withdraw from the course in June 2020 although with counselling and other support from the University of Queensland (UQ) he was able to restructure his course to allow him to complete it over a longer period of time.
Mr Leung provided a comprehensive written submission to the Tribunal on 15 October 2024 which he confirmed at the hearing was a true and correct record of his evidence and that he wanted to be included as evidence before the Tribunal. He said that he had prepared the evidence in the submission, it was in his words, and he had been provided with assistance in ensuring the grammar was correct and the format was correctly structured. Much of the evidence below is a combination of the evidence provided in that written submission supported by Mr Leung’s evidence at the hearing. The Tribunal also relies on the Department’s records, enrolment records, and information from UQ. The Tribunal found Mr Leung’s oral evidence including his answers to questions raised by the Tribunal to be open, honest and complete.
The applicant’s circumstances in Hong Kong
The applicant explained that, while similar courses are available in Hong Kong, there is far more pressure and competition for university places in his home country than there is in Australia. He believes also that the teaching methods and environment in Australia provided an education that will make it easier for him to obtain a job and gain promotion in Hong Kong than if he studied there.
Mr Leung’s mother, father and younger sister all live in Hong Kong, he grew up in Hong Kong attending primary and high school there, and his closest friends live in Hong Kong. He visits Hong Kong once or twice a year while studying in Australia. He stays in regular contact with his family and friends in Hong Kong.
While studying Mr Leung has had some part time work in a Karaoke bar assisting him with spending money. He does not send money home to Hong Kong and is reliant on money from his parents for study and living expenses.
Mr Leung told the Tribunal that there are no military service commitments in Hong Kong and there is no current political or civil unrest.
Having considered the applicant’s circumstances in Hong Kong, the Tribunal is satisfied that the applicant has a strong incentive to return to Hong Kong once he has completed his studies.
The applicant’s potential circumstances in Australia
The applicant has made some friends while in Australia but told the Tribunal that only one or two of would be considered true friends. He also has an aunt who lives in Sydney that he is not very close to.
In describing the history of his study in Australia from initially not coping during the COVID pandemic through to accepting assistance offered by his university and making sound progress more recently with his course, the Tribunal is satisfied that Mr Leung is totally focussed on the completion of his course and is not using his student visa program to circumvent the intentions of the migration program.
Mr Leung is studying full-time and displays an intent to return to Hong Kong as soon as he is able to complete his degree. He has a sound understanding of life in Australia and his course of study having provided the Tribunal with a comprehensive analysis from his perspective, and using national and international rankings of various universities, of the course of study he has chosen and his reasons for choosing UQ as his education provider. After the current semester, he has four more subjects to complete and plans to finish his study before the end of 2025. Mr Leung also described his future career plans for Hong Kong using his qualifications obtained in Australia.
Remuneration for entrants to the workforce with the qualification Bachelor of Social Science is similar in Hong Kong to the entry remuneration offered in Australia. The applicant provided a cohesive plan for vocational progress in Hong Kong indicating that there is not a strong career or financial incentive for him to remain in Australia.
Having considered the applicant’s potential circumstances in Australia, the Tribunal is satisfied that the applicant’s potential circumstances in Australia do not offer a substantial benefit in comparison to his incentives to return to Hong Kong.
The value of the course to the applicant’s future
Now that he has dealt with the mental and physical health conditions he faced during the COVID pandemic, Mr Leung has made sound progress with his studies. Some of the benefits the applicant suggests flow from undertaking the course in Australia are: an emphasis on active learning, group projects and discussions; extensive academic and personal support services; strong emphasis on practical applications and critical analysis; and, highly multicultural environment promoting inclusivity. All of these elements, according to Mr Leung, contribute to employability in Hong Kong.
Mr Leung’s long-term goal is to become a Community Development Director through obtaining positions related to health and social services with organisations such as Hong Kong Housing Society, Hong Kong Red Cross, and the Hong Kong Jockey Club to gain experience.
In order to succeed with his future employment goals in Hong Kong, Mr Leung has chosen a university ranked in the top 40 in the world and is paying a premium for that level of education.
The applicants wage in Hong Kong when he has graduated is expected to be about $360,000HKD which is equivalent to about $70,000AUD per annum. He expects his Australian qualifications, knowledge and experience will support him to achieve his vocational goals in Hong Kong.
Having considered the value of the course to the applicant’s future, the Tribunal is satisfied there is a strong incentive for the applicant to complete his course and return to Hong Kong to progress his career there.
Mr Leung’s migration history
Mr Leung stated, in accord with departmental records, that he had only travelled to Australia for the purpose of completing the undergraduate degree he is currently completing, and it is only the setbacks resulting from the COVID pandemic that have necessitated him seeking a further student visa to complete that study. He said he has travelled to Canada, where he studied for about nine months, and has travelled to Japan and Singapore in recent years as a tourist, in each case for a few days. As a child he travelled to a few other countries on family holidays with his parents and his sister.
The refusal of his student visa that is the subject of this application by the delegate is the only time the applicant has been refused a visa and he told the Tribunal that he has always complied with the conditions of his visa wherever he has travelled.
Having arrived in Australia in February 2019 and completed his foundation year of study, the applicant’s experience through the COVID pandemic delayed his completion of his degree which he now expects to complete in November 2025. He continued to work through the expensive undergraduate degree and has made good progress.
Having considered Mr Leung’s migration and travel history the Tribunal is satisfied that Mr Leung has complied with his visa’s conditions and has acted consistently with being a genuine applicant for entry to and stay in Australia as a student.
Conclusion - genuine intention to stay in Australia temporarily
Based on the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).
The applicant stated that he intended to comply with all conditions subject to which the visa is granted. He told the Tribunal that he had complied with all of the conditions since he has been in Australia. There is nothing on the Department’s file that suggests otherwise.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
No other relevant matters were put to, or identified by the Tribunal.
Conclusion on cl 500.212
Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
Hearing date: 7 November 2024
Representative for the Applicant: Not applicable
Attachment – Direction No.108
Attachment – Direction No.108
DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

(Section 499)
I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 21 March 2024
Clare O’Neil
Minister for Home Affairs and Minister for Cyber Security
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 - Preliminary
Name of Direction
This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 108.
Commencement
This Direction commences on 23 March 2024.
Revocation
Direction No. 69, given under section 499 of the Act, is revoked.

Interpretation
Act means the Migration Act 1958.
Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.

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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).
This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.
This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.
Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
Preamble
The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8. Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia. The applicant’s circumstances in their home country
9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a) whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b) the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c) economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d) military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e) political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

10. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a) The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b) evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c) whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d) whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e) the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

Value of the course to the applicant’s future
12. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a) whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b) relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c) remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

The applicant's immigration history
13. An applicant’s immigration history refers both to their visa and travel history.
14. When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a) Previous visa applications for Australia or other countries, including:
i. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii. if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
iii. b. Previous travels to Australia or other countries, including:
iv. 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;
v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
vi. 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
vii. 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 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.