LU (Migration)

[2021] AATA 954

LU (Migration) [2021] AATA 954 (24 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Wenyi LU

CASE NUMBER:  1718012

HOME AFFAIRS REFERENCE(S):          BCC2017/1757227

MEMBER:Penelope Hunter

DATE:24 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 24 February 2021 at 3:03pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Master of Social Work (Qualifying) – applicant’s proposed business plans – resources to establish business – value of course – family ties in home country – length of time spent onshore – ongoing employment – limited travel home – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 May 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa 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 first named applicant (the applicant) was a genuine applicant for entry and stay in Australia temporarily as a student..

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed or remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Application to the Department

5. The applicant is a citizen of China, she applied for the visa to undertake study in Diploma of Community Service with course dates from 17 July 2017 to 22 December 2018.

6. In a statement supporting her application, the applicant set out the following;

   i.She was currently studying a course of English language programs and then she was going to start a Diploma of Community Services. She chose the course because she was going to establish and run a community nursing home in China after completing her study in Australia. In the past, according to Chinese tradition, old people were supported and looked after by their children. But because of the one-child policy in China, supporting the elderly has become harder. This has resulted in community nursing homes, but from her research on television and in newspapers a lot needed to be improved in their operation.

   ii.She had a bachelor degree in the nursing field and sufficient theoretical knowledge to be a qualified nurse but the important thing was that she was fully confident in community nursing. She also had work experience from working in various nursing homes from 2012 to 2016. She still needed the systemic practical and theoretical knowledge in the community services area to run her future business.  She believed that she had a good business idea but still needed formal vocational qualification to make the dream come true.

   iii.As she already had a bachelor degree she just needed useful knowledge and skills in the area of community services. She had been familiar with Nurse Training Australia from her previous studies and did not need to choose some big name college.

   iv.As she had already studied in Australia she was familiar with the Australian way of living and study environment. It also had a more reasonable education system which was encouraging to mature students.

   v.Western countries were still leading the business standard for community nursing homes and most information and materials regarding community nursing were in English. For this reason, a solid English ability would help her.

   vi.She had a husband, son and her parents in China. The applicant submitted a copy of her marriage certificate and the birth certificate for her son. In addition, she had an interest property purchased in her husband’s name located in Shanghai, and under her husband’s name there was also a deposit of RMB 265,000 at the China Merchants Bank. The applicant submitted to the Department a copy and translation of a Shanghai City Certificate of Real Estate Ownership and a letter dated 17 May 2017 from China Merchants Bank.

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

   i.The applicant’s immigration history was of concern for the delegate. The delegate commented that the applicant was granted her student visa on 2 February 2010, she had held either a student visa, tourist visa or associated bridging visa.

   ii.When the delegate examined the applicant’s Provider Registration and International Student Management System records it documented that the following enrolments:

English Language Programs (1 to 48 weeks)	Finished
Diploma of Interpreting	Finished
Advanced Diploma of Interpreting	Cancelled
Advanced Diploma of Interpreting	Cancelled
Advanced Diploma of Translating	Finished
Bachelor of Nursing	Finished
Advanced Diploma of Hospitality	Cancelled
Certificate IV in Hospitality (Patisserie)	Cancelled
Bachelor of Nursing	Finished
Certificate III in Hospitality (Patisserie)	Cancelled
University Foundation Studies (1 Semester)	Finished
Certificate II in Hospitality (Kitchen Operations)	Cancelled
Certificate I in Hospitality (Kitchen Operations)	Cancelled
English Language Programs (Beginner to Advanced) (1 to 50 weeks)	Cancelled
English Language Programs (Beginner to Advanced) (1 to 50 weeks)	Finished
English Language Programs (Beginner to Advanced) (1 to 50 weeks)	Finished

It was considered that with her proposed enrolment that the applicant was continuing to study at the vocational education sector and downgrading her level of study. The delegate also noted that the applicant had made significant chances in her fields of study while holding a student visa, from hospitality to nursing, to interpreting and then proposing study in community services. The delegate commented that this was not consistent with the behaviour of a genuine student.

iii.The applicant’s lack of clear career direction and lack of detailed information about the relevance of her course or future employment indicated that she was using the student visa program as a means of maintaining ongoing residency in Australia.

iv.The applicant had not been able to demonstrate substantial economic ties or personal assets in her home country or that the prospect of her opening a community nursing home existed.

v.Although the applicant had her parents in China, and had indicated she was married and child in China, given the time that she had spent in Australia the delegate was not satisfied that they represented a significant incentive for her to return.

vi.Weight was given to Departmental records that indicated since her arrival in Australia the applicant had spent 2405 days onshore and only 208 days outside of Australia  and the delegate considered this further indicated that she did not appear to have strong personal ties to China.

Tribunal application

1. The Tribunal received an application for review from the applicant on 15 August 2017.

2. In response to a request for information pursuant to s.359(2) of the Act, the applicant submitted the following further relevant information on 6 March 2019 (in summary):

   1. She had completed Diploma level qualifications in China in 2003 in economics and marketing. Between March 2002 and June 2009 she had worked in air cargo exports, also in China.
   2. Since arriving in Australia in 2010, she had returned to visit family on seven occasions, the last in April 2017.
   3. She completed the Diploma of Community Service in December 2018.
   4. She proposed to study a Master of Social Work (Qualifying) at the Australian College of Applied Psychology. The applicant submitted a letter of offer in the Master of Social Work dated 5 March 2019, and a letter of offer in a Navitas Academic English Level 3 Course dated 4 March 2019 and Confirmation of Enrolments.
   5. It was hard for her to find similar courses in China because of the different education system and because social work was the lowest level of the health care system. Most organisations would provide only a few days training.
   6. She was currently employed as a house manager with Sunnyday Carers Disability Services. There were 15 staff who worked for her. In a management position she needed to learn more knowledge to help her to provide a higher quality of services to her clients.
   7. When she finished her Master of Social Work degree she wanted to go back to her home country and open her own community support centre or aged care facility.
   8. The applicant also submitted an annual statement for the 2016 to 2017 financial year setting out $720 of donations to the Cancer Council of New South Wales.

3. On 7 March 2020, the applicant submitted a Confirmation of Enrolment (CoE) in a course of Academic English 3 at Navitas English Services with course dates from 8 July 2019 to 13 September 2019, and a CoE at the Australian College of Applied Psychology in a Master of Social Work (Qualifying) with course dates from 16 September 2019 to 27 August 2021. Both were recorded as being created on 7 March 2020.

4. On 26 March 2019, further documents were submitted to the Tribunal from the applicant, included in this material were copies of her previous qualifications, a further statement from the applicant, and evidence of property jointly owned with her parents in Shiquanyi Village Shanghai, and attached evidence of ownership. In her statement the applicant set out the following further relevant information:

   i.She finished her Bachelor of Nursing, Certificate III in Aged Care, Certificate III in Individual Support (Aging, Disability & HACC), Certificate IV in Aged Care and the Diploma of Community services. She was working as a house manager for a community disability support organisation and there were 15 staff for her to manage. She needed to learn more knowledge to provide a high quality of services to her clients. For example she would help deal with child abuse issues, providing education programs for at-risk adolescents, financial issues and helping clients with medication admission. All of these services required a high qualification in community services and social work knowledge. The Master of Social Work was the best course to help her have a deep understanding of her job and that was why she chose the course.

   ii.Unlike Australia, in China, social work was the lowest level of the health care system. Most organisations would provide only a few days training for staff. It was very hard to find similar courses in China.

5. The applicant appeared before the Tribunal on 3 April 2019  to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Mandarin languages. The applicant was represented in relation to the application for review and her representative appeared at the hearing.  At the hearing the applicant provided the following information (in summary):

   i.She had worked for an import export company in China but did not feel comfortable in the job, her family had pushed her into the job. She had three dream jobs, a policewoman, nurse or chef.

   ii.When she came to Australia her English was very poor, and when she applied for the visa her score was very low and it was impossible for her to study at university with her score. So she applied for a chef but hoped after six months of English study her IELTS score would improve and that is why she changed to nursing. In her first year she found work in a nursing home. She then obtained employment in a medical centre. She liked her study and her work, and thought that she wanted to obtain more knowledge so she she could do something for aged care in China and go back and run her own business.

   iii.Her current employer had five group homes for people in receipt of the NDIS. They take their residents out during the day for group activities and provide supervision 24/7.

   iv.In Australia she was living in shared rental accommodation with friends.

   v.The Tribunal asked the applicant when she applied for the visa whether it was her intention to continue studying after she finished her course. The applicant said that at the time she did not think much but she intended to go in that direction. The Tribunal asked the applicant whether she meant the English course or the Master of Social Work and the applicant responded both. She said all courses were good for her future plan which was the nursing home. She realised when she completed the Diploma of Community Services it was not enough management level knowledge.

   vi.Again the Tribunal asked the applicant whether she had identified at the time of her visa application that she intended to keep studying. The applicant responded that she was not sure and she did not think very far, at the moment she just wished to completed her Master of Social Work.

   vii.The applicant provided some pictures to the Tribunal and claimed that they were from and aged care facility in China. She claimed it was operated by her friends and they proposed to employ her in the future. The applicant was requested to provide some evidence to support this claim and leave was provided to present further material following the hearing.

   viii.The applicant was asked whether her Master of Social Work qualification was a requirement for her employment and if she was unable to complete the course how it would affect her future plans. The applicant responded that she did not know as she could not study a similar course in China. Mostly she had studied in healthcare, and she was trying to change some things in China, and if she could get more knowledge it would be good for her.

   ix.The Tribunal put to the applicant that the visa she had applied for had run its course, she had achieved the study and she did not let the Department know that she was contemplating further study.

   x.The Tribunal noted that the applicant had finished her Diploma of Community Services in December 2018, and was not commencing her Master of Social Work until September 2019, and it was put to the applicant that she had a break in her study. The applicant agreed. The Tribunal also raised with the applicant concern that the applicant had obtained her enrolment only after the Tribunal had written to her to provider evidence. The applicant acknowledged the delay but claimed that she had already asked her agent to find a course.

   xi.The applicant claimed that she could earn more money in China. Her proposed nursing home would be more like a 5 star hotel and people would pay a considerable amount per month.

6. Following the hearing, on 9 April 2019, the applicant provided a further statement in that statement she set out the following additional information (in summary):

   i.She intended to go back to her hometown in China once she had finished her English course and Master of Social Work.

   ii.She did not intend to continue to higher education as she believed that a Master’s degree should be enough for her proposed work in China. Her education was much higher than many others working in the same field.

   iii.Her English was still not that good. Higher education required professional English skills and for this reason she needed to study English before starting her Master degree.

   iv.She had been separated from her family in China for many years and although she had visited them every year or they visited her in Australia it was not a good solution for her life. In two years her son would be in his rebellious period and she must stay beside him to lead him through the right way of his life.

   v.She had a job offer in Shanghai City. She only had verbal confirmation of  a position as a clinic manager of an aged care facility. She also had another job offer from another city in China (Guangzhou), they had just stared to build a second and third stage aged care facility, and they had said that the applicant could be director of nursing once she finished her Master degree.

   vi.Working in aged care in China she could gain more money. The population was aging and people were happy  to spend money on health care services that improve their quality of life.

   vii.Together with her husband, she had four properties in China. Her parents and family all live in China and according to traditional Chinese culture, husband and wife need to look after their parents after they retire.

7. The initial member allocated the application for review was unable to finalise the matter and the application for review was reconstituted on 31 July 2020 to a different member. The applicant was advised that all documents and material that were submitted to the Tribunal would be considered in relation to the review, including any recording of hearing and submissions to the Tribunal or the Department.

8. On 2 August 2020, the applicant submitted a copy of a Certificate of Completion of Academic English 3, certificate of attendance and statement of results, and an interim academic transcript for her Master of Social Work degree.

9. The applicant was again invited to appear before the Tribunal by telephone on 9 September 2020, to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant, currently residing in Tasmania. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. At the hearing the Tribunal discussed the following relevant matters (in summary):

   i.The Tribunal asked the applicant about her career intentions when she returned to China and she confirmed that her main goal was to open a nursing home in her home city of Shanghai. When asked about the type of home she said that in the beginning it might have 40 to 50 clients, or she may look at doing several smaller group homes.

   ii.The Tribunal asked the applicant about the resources she had to start this business, and she replied that had visited other nursing homes operated by her friends in Shanghai and Guangzhou and they were interested in her Certificate III in Aged Care qualification and they would help her with her goal. The Tribunal noted that the applicant had achieved this qualification some years ago and asked about the benefit of the Master of Social Work for this employment. The applicant said that the Master of Social Work was for her benefit and to help her with her goal. She claimed to need some additional information in management. Under further questioning the applicant acknowledged that she could have obtained this information from a shorter course but as her visa had already been refused by the Department she did not think that another vocation course would impress the Department in favour of the visa grant.

   iii.The Tribunal again asked the applicant about her resources to establish her own business, and she said that she had an aunt who worked for the government who could assist her with government permits, she did not identify the permits. The applicant also claimed that the friend that she had in Shanghai who was a director of a nursing home, who had offered her employment, could put her in touch with clients and nursing staff from the university. She acknowledged that she would need premises and said that she had not yet researched this because it was a little bit too early and once she found premises she would need to engage lawyers to do the paperwork. The applicant did not provide evidence of financial resources.

   iv.Since she finished her Bachelor of Nursing the applicant claimed that all her study was in the healthcare industry and she was working toward the one direction.

   v.The applicant claimed that she had to undertake another English course before she commenced her Masters because when they looked at her transcript for her Bachelor of Nursing they saw she had failed a few subjects because her English was not very good. The applicant claimed this was still the case even though she had gone onto further study including a Diploma of Interpreting and an Advanced Diploma of Translating and an additional English course prior to her Diploma of Community Services.

   vi.Although she claimed that her husband owned three to four properties the applicant confirmed that she had only provided evidence of one. The Tribunal questioned her claims that she wished to return to her son as her required her guidance in her teenage years, as to whether he had also required her assistance from over the last 10 years. The applicant claimed that she was in regular communication with her son via Skype and WeChat.

   vii.The Tribunal  asked the applicant about her intentions when she finished her course and she said that currently she was not making future plans, she will just finish her course and see what she needs in the future. The Tribunal asked the applicant if she planned further study, and she replied that she was not sure, it was only when she finishes a course that she knows whether she needs further knowledge. Her course might be enough although she also needed to some research. If she needed something else it may be a short course, if she needed a six month short course maybe she would apply, she was not sure.

   viii.The Tribunal discussed with the applicant her previous evidence that she had a offer of employment at a nursing home operated by her friend. She confirmed that this offer was still open, it was only verbal and it was not conditional upon her completing further courses.

   ix.She last returned to China in 2017. The Tribunal asked when her husband and son had last visited her and she responded that since she had been in Australia her husband and son have come to visit her on three occasions.

   CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant satisfies cl. 500.212.

2. 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?

3. 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.

4. 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.

5. The Tribunal accepts that the applicant has family in her home country, including her husband and son, and that reasonably these social ties would provide an incentive for her to return to China. Additionally she claims to have a responsibility to care for her parents. Yet, although the applicant has close family in her home country it is of concern that she has remained in Australia since 2010 and continued to enrol in courses. It is noted that she has not returned to China since 2017, and was evasive in her evidence to the Tribunal as to when her family had last visited her in Australia. Although her mother has been ill with cancer the applicant appears to be in no hurry to return to her family. The length of time that the applicant has spent onshore is of concern to the Tribunal. The applicant has claimed that her son will need her guidance and support in the future as he enters his late teenage years and for this reason she will return to China. The Tribunal considers that a similar submission could have been made for the past decade in relation to her son. She has been absent for most of his childhood, and the Tribunal has concerns that her long absence indicates that the applicant’s family ties do not in her circumstance indicate a strong incentive for her to return to her home country.

6. It is accepted that the applicant has presented evidence of property ownership with her parents and that her husband owns at least one property in China. There is no evidence that the economic circumstances would present a significant incentive for her not to return to her home country. There is no evidence before the Tribunal of military commitments that would present a significant motive not to return, or of any civil or political unrest that would result in the applicant choosing to remain in Australia indefinitely. It is accepted that these circumstances in her home country are indicative of the applicant being a temporary entrant and that she has an incentive to return to the China.

7. As to the applicant’s circumstances in Australia, there is no evidence that she has family onshore. The applicant has acknowledged social ties onshore and friends established since she commenced her nursing degree in 2011. Yet it is accepted that there is no evidence that she has entered into a relationship of concern. The applicant has been employed in the health profession in positions relating to her qualifications obtained in Australia since she commenced her studies in nursing, from 2012, and currently holds a management position, responsible for 15 staff and five group homes in her present employment. Additionally, her further study in Australia particularly the Master of Social Work, appears from the applicant’s evidence to have been driven by her desire to improve her knowledge for her current position and obtaining knowledge of further resources for her current clients, rather than potential nursing home clients in China. Given her length of time in Australia, her ongoing employment and onshore related studies, the Tribunal has concerns that the applicant may have reasons to remain in Australia other than for the purposes of study.

8. The Tribunal accepts that the applicant completed her original proposed course, the Diploma of Community Services, and that these studies were completed in December 2018 in accordance with her enrolment. However, as discussed with the applicant the Tribunal has concerns that she went on to enrol in a further two years of study. This is difficult to reconcile with her representation to the Department that she just wanted to undertake a Diploma of Community Services. The applicant was considerably evasive when questioned by the Tribunal at the hearing in March 2019, as to whether she intended further study at the time. The Tribunal also takes an adverse view of the fact that the applicant did not take steps to enrol in a further course until after she was requested by the Tribunal to provide evidence of enrolment, and she has acknowledged in her evidence that this was the case. Although she completed her Diploma of Community Services in December 2018, it was not until September 2019 that she commenced study in the Master of Social Work. Even though the applicant did a further English course prior to commencing her masters degree the Tribunal has concerns that she was in fact extending her enrolments for the purposes of maintaining residence in Australia. In this regard the Tribunal has considered the claims of the applicant that her English was not sufficient for a masters degree, however although she may have struggled during her Bachelor qualification in the early years, she has demonstrated the capacity to complete this qualification in English, had gone on to undertake an a Diploma of Interpreting and an Advanced Diploma of Translating which she had claimed in her written submissions had improved her English language ability. In addition she had engaged in an English language program prior to the undertaking her Diploma of Community Services. The applicant’s ongoing enrolment appear to be mechanism by which the applicant is intending to use the student visa program as a means of extending her stay in Australia.

9. When the Tribunal also discussed with the applicant her missing knowledge and the skills that she required from her course, the applicant conceded that it was for her own benefit not for potential employment opportunities that existed in China. She conceded that she could have obtained relevant management knowledge from a shorter course, but had enrolled in a Master level course to assist the approval of her visa application. It was also of concern for the Tribunal that the when asked the applicant was evasive about whether she intended further study at the completion of her masters degree, and claimed that it was only on the completion of her course that she would know whether she required further knowledge. Although she made written submissions to the Tribunal that she intended to go back to China on the completion of her masters this was not corroborated in her oral evidence to the Tribunal. Her lack of impetus to depart Australia and again the ongoing pattern of extended enrolment further indicates to the Tribunal that the applicant is using the student visa program as a means of extending her stay in Australia.

10. As to the value of the course for the applicant, she had conceded in her evidence that her friends who had offered her employment in their nursing homes in either Shanghai or Guangzhou were mostly interested in Certificate level qualifications in aged care. Other than photographs of unidentified premises the applicant has presented no evidence of an actual offer of employment, even though corroborative evidence had been requested. In any event she has conceded in her oral evidence that her employment is not dependent on the award of the Master of Social Work qualification. In these circumstances, when as discussed the applicant has close family in China, particularly a child, and an employment offer that she claims she wishes to pursue, for the applicant to continue her enrolment and extend her time onshore, suggests to the Tribunal that she has not been frank about her genuine intentions and also that she is using the student visa program as a means of maintaining residence.

11. In her initial submissions to the Department, the applicant claimed that her Bachelor of Nursing was a sufficient qualification for her set up her own community nursing home, that she did not need higher level qualifications and for this reason had only required a Diploma of Community Services. The Tribunal finds this initial submission difficult to reconcile with her subsequent claims that a Master qualification in China will be looked on more favourably, particularly when she claims that the discipline is not particularly well-regarded. Aside from the difficulty reconciling this evidence the Tribunal questions the genuineness of the applicant’s claims that she intends in the long term to open her own nursing home. According to her submissions to the Department, her good business idea had come from things she had learned in TV reports and newspapers. The applicant has not sourced potential sites and has not demonstrated any potential investors or commenced research on the requirements of operating such a business in China. She has an aunt who works for the government that may be able to assist her with approvals, but did not identify what they may be. She has friends who can refer clients and staff, but as yet is unsure whether she is opening one facility or five. When questioned the applicant did not impress the Tribunal that she had undertaken reasonable research as to the viability of this business or that it would improve her remuneration or career prospects. The Tribunal was unable to attribute much weight to the applicant’s claims that would be able to charge potential clients a considerable sum when she did not have a business plan or any demonstrated financial resources for the establishment of the business. It also found it difficult to reconcile the applicant’s claims of a 5 star accommodation with a community based facility. The applicant has not established to the satisfaction of the Tribunal that her prospect of her proposed business plan exists or is viable. It is reasonable to expect that the applicant had undertaken actual research of the potential for her business before she engaged in further years of study in Australia. As to the need for a Master of Social Work qualification for her future plans, in her evidence the applicant did not impress the Tribunal that she had undertaken any relevant research as to the availability of such courses and whether the knowledge in treatment and support in Australia will be transferable to setting up her own business in the aged care sector in her home country. In these circumstances the Tribunal is not persuaded that the claims of a good potential business are founded in evidence or that they outweigh the time and cost of further years of study in Australia. This also raises questions for the Tribunal as to the value of the proposed masters course to her proposed future and whether her claims about the community nursing home are genuine.

12. The applicant has changed her career path while in Australia from cookery to nursing and healthcare. The applicant claimed that she changed to nursing once her English improved, and the Tribunal accepts that due to this change a number of her package courses related to cookery and hospitality were cancelled. The Tribunal does not in these circumstances take an adverse view of the early cancellations, but it does consider that it demonstrates that the applicant did not have a settled career plan when she embarked on her study in Australia. This is considered unusual for a mature student such as the applicant, who had already worked for almost a decade in exports in China, and who was leaving behind a young family. From the beginning there appears to be a lack of direction and impetus in the completion of the applicant’s studies in Australia.

13. With respect to the immigration history of the applicant it is accepted that there is no evidence that the applicant has previously applied for a permanent visa, and there is no evidence that she has not complied with conditions of her previous visas. As reasoned above the amount of time that the applicant has spent in her particular circumstances and is now intending to spend onshore is of concern.

14. The Tribunal has assessed all of the evidence before it including that the applicant has family including her husband and a child in China, yet the Tribunal also balances the applicant’s family circumstances, with her decision to enrol in a further two years of study in Australia. It is accepted that her family has property resources in her home country and she has completed her several of her enrolled courses in Australia to date. In balancing the relevant factors the Tribunal places greater weight on the applicant’s further enrolment which is found to be of limited value, the length of time she has spent and proposes under a student visa in Australia, that the Tribunal is not persuaded that her future career plans in China are genuine and her circumstances in Australia. For the reasons outlined above the Tribunal is not satisfied that she is undertaking her study for the reasons she claims. Rather it appeared that she was using the student visa program to circumvent the intentions of the migration program and to maintain residence in Australia.

15. 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

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

    Penelope Hunter
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.