Li (Migration)
[2022] AATA 4627
•22 November 2022
Li (Migration) [2022] AATA 4627 (22 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Qi Li
CASE NUMBER: 2118467
HOME AFFAIRS REFERENCE(S): BCC2021/1205429
MEMBER:Robert Cumming
DATE:22 November 2022
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 22 November 2022 at 1:37pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – multiple course cancellations – no evidence of course completion – course benefit for future career – limited family ties in home country – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 363, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212; Schedule 8, Condition 8202CASES
Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25
Hasran v MIAC [2010] FCAFC 40STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the now Minister for Immigration, Citizenship and Multicultural Affairs on 22 November 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 7 June 2021. At the time of application, Class TU contained 2 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 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 intended genuinely to stay in Australia temporarily.
On 26 July 2022 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide information in writing to show that the applicant met the criteria that he was enrolled in a registered course of study and that he was a genuine applicant for entry and stay as a student.
The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 9 August 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant did not provided the information within the prescribed period and no extension was granted. In these circumstances, s 359C of the Act applies and pursuant to s 360(3) of the Act the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
Subsequently, on 31 October 2022, the Tribunal again wrote to the applicant at the last address provided in connection with the review pursuant to the provisions of, firstly, s 359(2) of the Act in order to seek information from the applicant by way of the applicant providing documentary proof in the form of Certificates of Completion from the relevant awarding Registered Training Organisation (RTO) for all courses the applicant has successfully completed while studying in Australia and been given credit for the successful completion of the particular course. Information in the form of a current Statement of Attainment for the course in which the applicant had previously provided the Department a copy of the relevant Confirmation of Enrolment (CoE) showing his enrolment between 29 August 2022 and 27 August 2023 at Elizabeth Institute in the course Graduate Diploma of Management (Learning) issued by Elizabeth Institute showing what competencies the applicant been granted on that course and what competencies he was yet to achieve was also requested to be provided to the Tribunal by the applicant..
8. The letter, secondly, under the provisions of s 359A of the Act, invited the applicant to provide comments on certain information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.
9. That information was in the form of information contained in 2 database printouts the Tribunal had access to and which were provided with the letter dated 31 October 2022 to the applicant. The first was a printout from the Provider Registration and International Student Management System (PRISMS) database which listed the CoEs the applicant had while studying in Australia. The second was the Departmental Movement record which showed the applicant’s arrivals into and departures out of Australia and the visas he had been granted.
10. Specifically, that information, firstly in the Movement record showed the applicant arrived in Australia on 2 September 2018 and had not since departed Australia. Secondly, having regard to the PRISMS records, it shows the applicant had had 9 CoEs since 15 October 2018, 3 of which are shown to have been ‘Finished” but no corroborative proof from the relevant RTO of satisfactory completion had yet been provided by the applicant. One CoE related to current study commenced on 29 August 2022, with one further CoE being referred to twice in the printout – once as being ‘Inactive’ and once as being ‘Finished’ (but no corroborative proof had been provided from the RTO by the applicant to the Tribunal). The remaining 4 CoEs have been cancelled for reasons including ‘Non commencement of studies’ and ‘Change to CoE/Student Details”.
11. The letter went on to say how that information was relevant to the review because the Tribunal was concerned that this information taken together (the PRISMS records showing that 4 CoEs have been cancelled for reasons including ‘Non commencement of studies’ and ‘Change to CoE/Student Details” and there was not yet corroborative proof from the relevant RTOs of satisfactory completion of any of the applicant’s 4 ‘Finished’ courses) and the Movement record showing arrival in Australia on 2 September 2018 with no subsequent departures from Australia) called into doubt the applicant’s genuine status as a student. In over 4 years in Australia, the applicant had not yet provided proof that he had fully completed any course of study which might lead to the conclusion that his conduct was not consistent with a person showing an incentive to complete study qualifications, and that his lack of return visits shows a lack of incentive to return to his home country but rather, overall, the applicant’s intention was to maintain residence in Australia. The Tribunal told the applicant in the letter that if it relied on that information in making its decision, it may affirm the decision under review on the grounds that the applicant did not meet cl.500.212 of the Regulations.
The applicant was asked to supply the information and the comments in writing on the information put to him by 14 November 2022.
The applicant has not supplied the information requested nor any comments on the information and no extension has been granted. The consequences described in paragraph 6 of this decision apply in these circumstances as well.
The Tribunal has decided to proceed to decision without taking further steps to obtain the information initially sought or the information and comments subsequently sought.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.
Genuine applicant for entry and stay as a student – cl 500.212
Clause 500.212 of the Regulations requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, a copy of which was provided to the applicant in the course of the application process by the Tribunal and another copy of 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.
The Tribunal has had regard to all the information supplied to the Department 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 application and supporting documents received by the Tribunal on 3 December 2021.
Based on all the information available to the Tribunal, most notably material supplied by the applicant, the applicant’s circumstances may be summarised as follows:
(a)The applicant is a 26 year-old citizen of the People’s Republic of China who first arrived in Australia on 2 September 2018 as the holder of a Subclass 500 Student visa.
(b)The applicant has links to his home country in the form of his parents. He did not declare that he had any siblings, and similarly, he declared that he had never married and there is no reference to him having any dependents in China.
(c)As far as education is concerned, the applicant completed a Diploma of International Trade in the period September 2015 to July 2018 at the Xiamen Nanyang Vocational College. The applicant said he came to Australia to study a Diploma of Business which was more practical and useful in his future career then the theoretical studies he had undertaken in his home country. The applicant said he would return home and seek a job as a senior manager or area supervisor in his hometown.
(d)The Tribunal has obtained a printout of the applicant’s records from the PRISMS database which shows the applicant has had a total of 9 CoE’s since he has been in Australia. Two were in General English, 2 were for the course Certificate IV in Business, 2 were in the course Diploma of Business, one was in the course Diploma of Leadership and Management, one was for an Advanced Diploma of Business and the remaining CoE in which the applicant is currently enrolled at the time of decision, namely Graduate Diploma of Management (Learning). Four of those CoE’s are shown as “Finished” on the PRISMS database. Two of those are for the General English studies conducted in the period 15 October 2018 to 12 April 2019 and 3 June 2019 to 17 August 2020 respectively. One was for the course Diploma of Leadership and Management conducted in the period 6 July 2020 to 4 July 2021 (which is also shown in the records as being ‘Inactive’. The remaining CoE shown as ‘Finished’ was in the course Advanced Diploma of Business conducted in the period 2 August 2021 to 31 July 2022. The other courses apart from his current enrolment, are shown as “Cancelled” the reasons being either ‘Non-commencement of studies’ or ‘Change to CoE/Student Details’.
(e)The issue of enrolment was specifically put to the applicant by the Department prior to its decision and the applicant was invited to comment on the adverse information. The applicant responded to the Department and said that he had completed his English course from 3 June 2019 to 17 May 2020 at Queens College and then subsequently completed the Diploma of Leadership and Management from 6 July 2020 to 4 July 2021 at Queens College. He went on to say that he was at that stage studying his Advanced Diploma of Business at the Elizabeth Institute, that being the course commencing on 2 August 2021. Relevant CoE’s were provided but the proof of completion was only the extract from the PRISMS records showing that 2 courses he claimed he had finished were in fact ‘Finished’. No proof by way of certification of completion from the RTO was provided by the applicant to the Department.
(f)As noted above, further concerns about the applicant’s enrolment and the lack of proof of completion of courses said to have been satisfactorily completed were put to the applicant under the provisions of s359A of the Act as set out in paragraphs 8 to 11 above. It is also noted above in paragraph 13 that the applicant did not reply to that correspondence sent to him by the Tribunal.
(g)In the information given to the Department and as confirmed in relation to the Movement records, since the applicant’s initial arrival in Australia on 2 September 2018 he has not since departed Australia.
As has already been highlighted on several occasions in this decision, the concerns about the enrolments and academic performance of the applicant was put to him under the provisions of section 359A of the Act by letter dated 31 October 2022 sent to his address provided to the Tribunal but no response has been received from the applicant.
As stated 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 considerations set out in cl 500.212(a) of Schedule 2 to the Regulations govern the matters the Tribunal needs to consider.
In assessing whether an applicant meets the genuine temporary entrant criterion, the Tribunal must have regard to Direction No.69. As also noted above, that Direction is not to be used as a checklist but rather, it is intended to guide decision makers in considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
In adopting that process in this case and having considered all the factors in the Direction on the basis of which the Tribunal has made certain findings which are about to be set out, the Tribunal finds that some of those factors, and the findings based on 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, and the findings based on those factors, have been overlooked. Rather, the Tribunal, in considering its decision has found these factors and findings of lesser weight in balancing all the factors and findings in coming to its decision overall on the merits of the review application.
Having had regard to the applicant’s evidence and noting the applicant’s failure to reply to the s 359A concerns put to him in writing, and giving consideration to all the factors specified in Direction No.69, the Tribunal makes the following findings:
(a)It appears the applicant arrived in Australia in order to study English and then proceed to undertake Business studies. This was said to be because the studies in Australia would help him with his English and give him practical business skills in the area of communication, solving problems and executing strategical (sic) decisions. The study experience, the applicant said, was going to be the highlight on his resume which would place him ahead of other people. The applicant went on to suggest that Australian education has a worldwide reputation of commitment to excellence and that study in Australia would make him a smarter and more thoughtful person with wider business insight which would distinguish him in job interviews. There is no evidence, however, of any research the applicant did to ascertain what sort of study he could do in his home country.
(b)The question, however, is whether the applicant has given reasonable reasons for not studying in China rather instead studying here in Australia. The applicant’s reasons as noted are those often heard by the Tribunal, namely the quality of education and how that will give him an advantage in his home country. However, in the absence of specific examples rather than bald statements of generality, it is difficult for the Tribunal to resolve this issue. On the one hand, it would be a case of the applicant not giving reasonable reasons for studying at home in China. On the other hand, it would, at best, be a case of this particular factor being viewed in a neutral fashion as far as the applicant is concerned. In the circumstances of this case, and while reasonable minds may differ, the Tribunal considers that on balance, in this instance, the applicant has not provided sufficient explanations of his reasons for the Tribunal to accept that he has given reasonable reasons for studying in Australia rather than at home in China.
(c)The applicant has links in his home country in the form of his parents. Other than that, there is little evidence that has been provided by the applicant to show his linkages to his home country. He does not declare any property ownership and, as noted, he does not have a spouse or dependents resident in China. He has maintained residence for a period in Australia now exceeding 4 years with no return trips to his home country. It is acknowledged, however, that the restrictions on travel imposed in response to the COVID-19 pandemic would have restricted travel during that time. However, on the other hand, there is not the commensurate progress academically in that time. That could be found to amount to maintenance of residence in Australia without a corresponding desire for the applicant to complete studies in Australia and then return to his home country. The concern the Tribunal has in respect to this criterion is with respect to the PRISMS records and what “Finished” actually means. In the experience of the Tribunal that could mean one of 2 things. On the one hand, the course has finished its duration of instruction and the applicant has successfully completed all of the requirements and competencies required to be awarded credit for that particular qualification. On the other hand, it can also cover a situation where the course has finished its duration by effluxion of time, but the applicant has not completed all the competencies but remained enrolled until the end of the course without having successfully completed it. That is why the Tribunal sought proof from the relevant RTOs in the applicant’s case because the only proof provided was an extract from the PRISMS records which the Tribunal finds can be equivocal. The applicant was given the opportunity under s.359(2) of the Act to provide proof of completion of courses and he was also asked to comment on the information as to academic progress under the provisions of s.359A of the Act. That concern about academic progress was put to the application under s.359A as potentially being the reason, or part of the reason, why the decision of the Department would be affirmed. The applicant failed to provide the information of completion of studies or respond to the concerns put to him under s.359A. Once again, in its discretion balancing the evidence for and against the applicant that the Tribunal has before it to consider, and based on an examination of the applicant’s conduct in Australia, the Tribunal has little alternative then to note that it cannot find that the applicant’s circumstances in his home country would serve as a significant incentive for him to return there.
(d)As to economic circumstances in the applicant’s home country, the only material the applicant has provided in this regard is to suggest that his family has a great network in his hometown which will help him find a satisfied (sic) job. On that basis, the Tribunal is prepared to treat this factor in a neutral fashion as far as the applicant is concerned.
(e)There is no evidence of any requirements for military service commitments affecting the applicant which would present a significant incentive for him not to return to his home country.
(f)There is no evidence of any circumstances of any political or civil unrest in the area of China where the applicant’s family are located which would present a significant incentive for him not to return to China.
(g)In considering the applicant’s circumstances in his home country relative to the circumstances of others in that country, the Tribunal notes the applicant’s comments about the good network that his family has but otherwise does not make any findings in regard to this criterion which are other than entirely neutral towards the applicant.
(h)The applicant has been living in Australia in excess of 4 years since initial arrival yet has not proved to the satisfaction of the Tribunal by independent evidence from the relevant RTOs that he has successfully completed any courses in Australia. The applicant was given the opportunity to provide that proof but has failed to do so. Because of the equivocal nature of PRISMS records, the Tribunal cannot be satisfied in the exercise of its discretion that the applicant has indeed completed courses said to have been finished on the PRISMS records. Those very concerns were put to the applicant under the provisions of s.359A of the Act but the applicant has failed to allay the Tribunal’s concerns. In the absence of proof of academic progress in over 4 years of living in Australia, the Tribunal finds that this is not the conduct of a person who is progressing academically so as to be considered a genuine student but nevertheless is that of a person who is maintaining residence in Australia. Noting that, while reasonable minds may differ, that conduct the Tribunal considers shows the applicant is using his student visa to circumvent the intentions of the migration program.
(i)For similar reasons, the Tribunal finds that the student visa is being used to maintain ongoing residence in Australia.
(j)As there is no secondary applicant it becomes unnecessary for the Tribunal to consider whether the applicant has contrived to enter into a relationship for a successful student visa outcome.
(k)As to the applicant’s level of knowledge of living in Australia, his intended course of study and his associated education provider, the Tribunal finds the only evidence it has in this regard is of the applicant’s broad statement that the study experience in Australia will put him ahead of others in job interviews and he then mentions some subjects that he would undertake during his courses of study. The applicant has really given no detailed examples as to how the particular skills, knowledge and attitudes he will gain from his particular studies will be useful for his future career. Accordingly, the Tribunal is left with the conclusion that it must find that the applicant has not satisfied this particular criterion as to his level of knowledge of those aspects of living in Australia, his intended course of studies and his associated education provider.
(l)As to the level of the applicant’s studies, noting that the applicant arrived in Australia with a Diploma level qualification and to the extent that the current enrolment by the applicant is in a Graduate Diploma then this represents a higher level of study. However, in the absence of any explanation as to the reason for the particular study he is undertaking and the subject matter of those studies and how that will assist him in his future career, other than the very bald statements that have been referred to, the Tribunal is unable to find that there is any evidence to support a finding that the studies will assist the applicant to obtain employment or improve his employment prospects in his home country.
(m)For similar reasons, the Tribunal does not have the evidence to be able to find that the course of study is relevant to the student’s past or proposed future employment either in his home country or a third country.
(n)There is no evidence about likely remuneration the applicant would earn as a result of the undertaking the studies and again the Tribunal is unable to make a finding in relation to this particular criterion which is favourable to the applicant.
(o)As at the date of decision, the applicant had been in Australia since initial arrival on 2 September 2018 for a period of 4 years 83 days during which time he has not departed Australia. Were the applicant to remain in Australia until the last day of his enrolled studies, noting that date as per his CoE as being 27 August 2023, the applicant will have been in Australia for a period of 4 years 361 days.
(p)As to previous visa applications of the applicant, but for the current visa application under review, the applicant has successfully been granted one Student visa and one Bridging visa Class A. Otherwise, there is no evidence for a finding that the applicant has had any other visas in any other country (including Australia) cancelled or apart from this visa under review, he has any other visas in any other country (including Australia) refused. There is no evidence of any other visa applications for the applicant that are pending.
(q)From a review of the PRISMS records it appears that there was a period between 20 May 2019 and 6 July 2020 where the applicant was not enrolled. This would support a finding that the applicant would not have complied with visa condition 8202 which requires that he remain enrolled during his time in Australia.
(r)The applicant has not declared travel to any other country apart from his home country and Australia which makes it unnecessary for the Tribunal to consider whether the applicant has complied with the migration laws of any other country.
(s)As noted, were the applicant to remain in Australia for the completion of his currently enrolled studies to the last day of that course as per the CoE which is 27 August 2023 the applicant would have been in Australia for a period of 4 years 361 days. This is in circumstances where the Tribunal is concerned by the conduct of the applicant. That conduct relates to his academic progress. As has been highlighted already in this decision, the applicant was asked to provide evidence of completion of studies and current attainment in his currently enrolled studies but has failed to do so. In the circumstances, the Tribunal cannot be satisfied that the applicant has made academic progress in over 4 years of living in Australia. That conduct, the Tribunal finds, is the conduct of a person who is using his student visa primarily for the maintenance of ongoing residence in Australia.
(t)As there is no secondary applicant, let alone a secondary applicant who is an infant, it becomes unnecessary for the Tribunal to consider the intentions of a parent, guardian or spouse of an infant secondary applicant.
(u)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.
Balancing all of these findings the Tribunal considers the weight of the evidence points to factors and findings not favouring the applicant’s case rather than those factors and findings which are supportive or neutral to his case. Other than the bald statement of the fact that the applicant intends to return to his home country and that he will not stay in Australia where he has no family, no network and no any advantage (sic) in career development, at the time of decision, there is no compelling evidence that the applicant has proved he has made any progress in gaining any qualifications that may have any particular relevance to him in obtaining employment in his home country of China. The Tribunal also notes that these particular concerns were specifically put to the applicant, and he has failed to reply to those concerns. In weighing up the evidence, the Tribunal considers that the conduct of the applicant leads it to the conclusion that the applicant is using his student visa to maintain ongoing residence in Australia.
Having had regard to all matters, including the Direction No.69 requirements to which regard is required, the Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Having regard to the Federal Court of Australia decision, Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25, a finding that the applicant does not meet cl 500.212(a) means it is unnecessary to consider whether the applicant meets cl 500.212(b) or (c). This is because, having failed to satisfy one condition even where the applicant can meet the other 2 conditions, overall the applicant has failed to meet a condition and therefore the application must be decided against him.
Conclusion on cl 500.212
The Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa.
Robert Cumming
MemberAttachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton
Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
0
1
0