Lin (Migration)

Lin (Migration) [2021] AATA 2954 (28 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Can Lin
CASE NUMBER:  1904860
HOME AFFAIRS REFERENCE(S):          BCC2018/5547398
MEMBER:Michael Biviano
DATE:28 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 28 June 2021 at 5:30 pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – consent to review without a hearing – 15-month study gap – future job prospects – change of career path – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 February 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 10 December 2018. 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 visa on the basis that the applicant did not satisfy the requirements of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.
The applicant was assisted in relation to the review by their registered migration agent.
On 28 January 2021, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide information about his entry and stay in Australia as a student in writing (Invitation). The Invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 12 February 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The applicant sought an extension of time from the Tribunal to file a response and was granted until 5 March 2021 to provide a response.
The applicant provided a response within time. In their response, the applicant indicated that he consented to the Tribunal deciding the review without a hearing. The Tribunal is satisfied that the necessary consent has been given under s 360(2)(b) of the Act and that, pursuant to s 360(3), the applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant is a 27-year-old Chinese national who obtained a Work and Holiday (Class US Subclass 462) visa on 9 November 2017 with an expiry date of 9 November 2018, and he first arrived in Australia on 11 December 2017.
The Decision Record of the delegate of the Department of Home Affairs dated 19 February 2019, which was provided to the Tribunal by the applicant, confirms the applicant made the current application for a Student (Class TU) Subclass 500 visa on 10 December 2018 (Decision Record). At the time of the decision being made in the Decision Record, the applicant had applied to undertake a Master of Engineering at the University of South Australia.
On 5 March 2021, the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses he was studying and information about his entry and stay in Australia in accordance with s 359(2) of the Act (Response).
In addition to the Response, the applicant filed documentation in support of his application. The documentation comprised:
a.GTE Statement dated 4 March 2021;
b.Confirmation of Enrolment certificate (COE) No. C29C8B99 for the applicant to study a Master of Business Administration at Adelaide Institute of Higher Education (AIHE) from 15 March 2021 to 15 March 2023, which was created on 5 March 2021.
Prior to coming to Australia, the Response confirms that the applicant had completed his secondary education in China and in June 2016 he completed a Bachelor of Engineering (Polymer Materials) at Wuyi University. After completing his tertiary studies, from September 2016 to October 2017 he worked as a surveyor in China.
It appears from the Response and the Decision Record:
a.The applicant entered Australia on 11 December 2017 for the claimed purpose of work and holiday;
b.While in Australia he decided to study a Master of Engineering and applied for a student visa to study a Master of Engineering;
c.In January 2019 he enrolled to study English for Academic Purposes at Adelaide Institute of Business and Technology (AIBT), which he studied from January 2019 and completed in November 2019;
d.He was not enrolled in a course of study from December 2019 until he enrolled in a Master of Business Administration at AIBT on 5 March 2021. There was a significant gap in his studies in excess of 15 months;
e.On 5 March 2021 he enrolled in a Master of Business Administration at AIHE, which he was to study from 15 March 2021 to 15 March 2023. If the applicant completes that course of study he will have remained in Australia for a period of more than 5 years and 4 months, which is inconsistent with his stay being temporary;
f.He has not returned home since arriving in Australia;
g.He has not enrolled or studied the Master of Engineering as outlined in his visa application and the Decision Record.
The documents submitted to the delegate reveal that the applicant had obtained an offer of admission dated 28 November 2018 to study a Master of Engineering at the University of South Australia from 4 March 2019 to 31 December 2019. The offer required the applicant to have a minimum IELTS overall score of 6.5 and a minimum score 6.0 in reading and writing. The applicant submitted 2 test scores from IELTS tests of:
a.an overall result of 5.0 with scores of 4.5 in reading and 5.0 in writing on 17 November 2018; and
b.an overall result of 5.0 with scores of 6.0 in reading and 5.0 in writing in September 2018.
The applicant did not submit any test results for IELTS after completing the English for Academic Purposes or details of any attempt to enrol in the Master of Engineering.
The applicant in the GTE Statement stated as follows as to the purpose of coming to Australia, the reason for the studies undertaken and why he has enrolled in a Master of Business Administration:
I came to Australia in October 2017 with a Working and Holiday visa. After one year’s living in Australia, I like this country and its lifestyle. After talking to my parents and education agent, I have decided to take the Master of Engineering (Civil and Infrastructure) course. Unfortunately, my student visa was refused in February 2019, and I have lodged my review application soon. My education agent told me it may take 18 to 24 months for AAT/MRT to finalize my case, and I do not want to waste precious time, so I have completed a one-year English course from January to December 2019 at Adelaide Institute of Business and Technology. I have made big improvements in my English ability and I have become more confident in using English. I have received the request letter which asked me to provide a new COE from AAT/ MRT in Feb 2021. As for the new course, I have thought about it for a long time, as I have been far away from the engineering area for a couple of years, and my undergraduate major is chemical engineering. I took this course under the influences of my parents, as they wanted me to become an engineer and they would be proud with my occupation. Therefore, I followed their suggestion and completed my bachelor program even though I'm not interested in chemical engineering. After that, I have an honest and open talk with my parents and told them I want to have a new start and take an Master of Business Administration(MBA) course which I'm interested in.
The reasons why I choose to undertake MBA course will be demonstrated at following. I am always interested in the business area, and my dream is to work in a big international business company in Fujian, China. I understand it is vital to obtain an MBA degree to be my steppingstone to a business-related career for my future and development. Additionally, in order to cope with changes, conflicts and issues in today’s world, I would like to empower myself with knowledge and skills by undertaking this course. In fact, MBA curriculum focuses on preparing students for success in the corporate world. It could help me develop knowledge and skills to be able to take on leadership responsibilities and move into senior management in the future. This course will help me enhance my knowledge base, skillset, employability, core competency and make me more desirable and competitive in the diverse business world. Moreover, most international companies in China are considering a master’s degree as an essential criterion for the position. Especially, the number of job opportunities is decreasing due to COVID-19, and the requirements of educational qualification for employees are higher than before. Accordingly, I am aware of the need for obtaining a MBA’s qualification, and it is not only to learn some new values and concepts to succeed in the future but also to become a competitive candidate among others when applying for a job. Therefore, I believe that undertaking the MBA course will be a very rewarding investment for my future.
There are a few reasons that I choose AIHE as my education provider. Firstly, this school is a young and higher education provider which is aimed for delivering active, engaging, inquiry-based business education and it is designed to equip entrepreneurs and future business leaders to create value and prosperity in international businesses and communities. Secondly, as I searched on their website, its teaching and learning style encourages student to interact with classmates and work as a group to solve problems and discuss the assignment tasks. Compared to Chinese education system, it is quite different and will be a unique experience for my life. Lastly, AIHE is able to support all of students in a friendly and supportive environment and build up a good grounding in my business knowledge. Overall, I think AIHE is the best option for me.
I have been studying and staying in Australia before. To be honest, I really like this country because Australians’ cultures are diverse and most of Australians are friendly, enthusiastic and welcome people from all over the world. This provides a lot of opportunities to international students to share their cultures and experiences with each other. It is impossible to have this kind of chance if I study the university in China. In addition, the reputation of Australian education system has a significant status in the world. What’s more important, Australian academic education system is advanced and different from other eastern countries. It provides more flexible learning style to students and requires more self-management capability for students compared to Chinese’s methods of delivering education. In conclusion, studying in Australia gives me the chance to exposure in different cultures, and I can also acquire the western academic knowledge systematically and improve my study skills efficiently and bring this special overseas studying experience back to my hometown.
My future plan is after completing my MBA program, I will go back to China and find a job related to international business manager position in an international business company. As I have mentioned above, with an Australian bachelor’s degree and satisfied English language capacity, I believe I can successfully find a decent job related to business area in China.
The applicant in the GTE Statement did not explain the 15 month gap in his studies from December 2019 to March 2021. The applicant in the GTE Statement confirmed that he enrolled and obtained a COE because he was asked to provide a COE by this Tribunal. Such evidence of the gap in studies and providing the COE in response to the request for a COE is consistent with a student who is not here in Australia for the purpose of studying on a temporary basis. A student who genuinely comes to this country for the purpose of study, will undertake the studies in a timely manner and return home.
The applicant in the GTE Statement outlined the prospect of completing the course and obtaining a job as an international business manager back in China. No specific position was identified and the response was very general.
The applicant in the Response stated as to future job prospects if he completed the Master of Business Administration as follows:
My future plan is after completing the MBA program, I will go back to China and find a job related to an international business manager position in an international business company. As I have mentioned before, with an Australian bachelor’s degree and satisfied English language capacity, I believe I can successfully find a decent job related to the business area in China.
…
I expect to go back to China after completing a Master of Business Administration and look for a manager position in an international business company. My expecteded remuneration is AUD$30,000.
Again the applicant has not identified how the Master of Business Administration will improve his career prospects and ability to gain future employment, especially having regard to the prior academic qualification he has obtained in China. Ultimately the Tribunal accepts that if he completes a Master of Business Administration in Australia, this would improve his employment prospects back in China and is likely to have a positive impact in regard to the likely remuneration levels he would reach back in China.
On 24 May 2021, the Tribunal obtained a copy of the applicant’s enrolment record from the Provider Registration International Student Management System Database (PRISMS record), which confirmed that the applicant had been enrolled in the following courses of study since his arrival in Australia:
(a)Between 21 January 2019 and 22 November 2019 he was enrolled to study and completed a Certificate in English for Academic Purposes – Elementary to Advanced;
(b)Between 15 March 2021 and 15 March 2023 he is enrolled to study a Master of Business Administration, which he is studying (the MBA Course).
The Response is consistent with the PRISMS record.
The enrolment in the MBA Course concludes on 15 March 2023, and if he completes it, he will have been in Australia for 5 years and 4 months, since his entry on 11 December 2017. This is a long period of time and inconsistent with the stay being temporary, especially in light of his entry on a Work and Holiday visa and the courses he has studied.
The applicant has changed his career path, initially from engineering to English and then to business administration. The courses that the applicant has undertaken are not connected and not complementary to one another. They do not lead to a career path or position in employment. The applicant has stated in the GTE Statement that he is moving away from engineering, which is a course which his parents wanted him to study, and he wants to work in business.
The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However, this is not the case when an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses. The MBA Course which the applicant has commenced is a higher education course. The Tribunal accepts that the MBA Course reveals progression in his course of study in light of the degree he has completed and is consistent with his level of education.
The applicant in the Response explained why he wanted to undertake studies in Australia as follows:
Most international companies in China are considering an overseas master’s degree as an essential criterion for the position. Especially, the number of job opportunities is decreasing due to COVID-19, and the requirements of educational qualification for employees are higher than before. Accordingly, I am aware of the need for obtaining a MBA’s qualification, and it is not only to learn some new values and concepts to succeed in the future but also to become a competitive candidate among others when applying for a job. Therefore, I believe that undertaking the MBA course will be a very rewarding investment for my future.

While the applicant considers that studying the MBA Course may be beneficial to his career, there was no evidence led that he would be unable to study a suitable business course and obtain qualifications in China. Considering the costs associated with undertaking these studies in Australia when compared with the costs of undertaking those studies closer to home in China, and the limited improvement in career prospects arising from completing the MBA Course in Australia, the Tribunal is not satisfied that the applicant had reasonable motives to undertake these studies in Australia rather than study in his home country.
The applicant has lived in Australia for more than 3 and a half years. He has a substantial degree of knowledge about living in Australia.
The applicant has studied at AIHE since March 2021, and the Tribunal accepts that he has a substantial degree of knowledge about the MBA Course he is studying and the course provider.
The Response confirms that the applicant had worked in China as a surveyor for a period of 12 -13 months in 2016 to 2017, for which he was paid A$12,000 per annum. The applicant in the Response outlined that his expected remuneration back in China with the MBA Course was A$30,000 per annum. If the applicant obtained full time employment in Australia, the Tribunal notes the minimum wage in Australia as at 1 July 2020 as set by the Fair Work Commission is A$753.40 per week, which equates to A$39,176.80 per annum.[1]
[1] National Minimum Wage Order 2020 – [PR719660]
Clearly Australia has a higher level of wages and if the applicant obtained employment in China, as compared with a similar position in Australia, the income that he would receive in that position in Australia would be substantially higher than the income he would receive in China, which would not present the applicant with a significant incentive to return to China and instead provide him with a substantial financial incentive to remain in Australia.
Further, the applicant has been working in Australia. He worked from April 2018 to October 2018, in plaster fixing earning $28,800 per annum. Such a high level of income provides him with an incentive to remain in Australia.
However, it appears that the applicant’s living expenses, which are set out in the Response, are A$10,480 per annum. The COE reveals that the cost of tuition fees for the MBA Course is $38,800 which is quite substantial. Such living expenses and his tuition costs need to be paid and if he is not working, they will be met from either family support, his own funds or another source. In any event, by the Response he is not working and has not worked since October 2018, and that would provide him with an incentive to remain in Australia rather than return home.
Further, the Tribunal considered that it is an accepted and well known fact that the economic conditions in China are not as favourable as those in Australia, which would also provide a significant incentive for him not to return home to China and provide him with an incentive to remain in Australia.
The applicant has not returned home to China during his stay in Australia since arriving on 11 December 2017, which is consistent with an intention on behalf of the applicant of wanting to stay in Australia permanently and not return home. While for a part of the time the applicant has been in Australia there have been travel restrictions due to the COVID-19 pandemic, which would have prevented the applicant from returning home, they do not explain his failure to return home at all in those 3 and a half years. The Tribunal considers his conduct is more consistent with someone wanting to remain in Australia permanently.
The applicant in the Response has outlined his assets in Australia to be A$30,000 in savings and a car worth A$12,000. The Response makes no disclosure about having any assets in China. The failure to hold any assets in China would not provide the applicant with any incentive to return home, whereas the assets held in Australia would provide him with a significant incentive to remain in Australia.
In light of the applicant having lived in Australia for the past 3 and a half years, having a gap in studies of 15 months, and that he intends to stay and study in Australia for at least a further 21 months and potentially longer if he decides to continue studying in Australia, coupled with his arrangements in Australia being financially supported, and that he has the potential to earn a higher level of income in Australia, the applicant has a significant incentive to stay in Australia and to reside here on a permanent basis.
The applicant in the Response confirmed that he did not have any concerns about returning to China and he had no concerns about military service commitments or political and civil unrest in his own country. The Tribunal finds that they do not present as a significant incentive for him not to return home.
The Tribunal finds that based on the applicant’s evidence and circumstances in his home country (including the support of his family, together with his education and the support that he has and would receive from his family back home) relative to others in that country, he is in a good position and that would provide a significant incentive for him to return home.
The applicant has personal ties both in Australia and in China.
The Response provides that the applicant’s parents reside in China and one of his sisters resides in China, and that would ordinarily provide him with a significant incentive to return home, however, he has not seen them in person since September 2017, which is nearly 3 years and 9 months ago. He claims that he keeps in contact with them by telephone and WeChat 2 to 3 times per week, and that he has friends in China. However, 2 of his sisters are in Japan and he intends to stay in Australia for at least a further 21 months and possibly substantially longer, and when coupled with the higher levels of income he can earn in Australia if he obtains a visa and his circumstances in Australia, the Tribunal finds that such ties do not provide a significant incentive for him to return home to China.
The applicant has substantial ties to Australia. He has lived, worked and studied for 3 and a half years and intends to remain here for a further 21 months, and he is being supported in Australia. Further, he has the prospect of earning a higher level of income and wages than that he would receive in China, which also presents as a strong tie to Australia. The Tribunal finds that those ties demonstrate that he has a strong incentive to remain in Australia rather than to return home.
The applicant in his Response has not identified that he was refused any other visa or had a visa cancelled in Australia or elsewhere. He is not in any relationship of concern for the grant of a visa.
The applicant does not appear to be in breach of any of his visa conditions.
Based on the above matters, the Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily and it considers that the primary objective of the application is to maintain an ongoing residence in Australia and to remain in Australia permanently.
The Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Biviano
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.

[2021] AATA 2954

28 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention