Lu (Migration)

Lu (Migration) [2023] AATA 1895 (16 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kuan Lu
REPRESENTATIVE:  Miss Vivian Wei Wei Wang (MARN: 0853910)
CASE NUMBER:  2202427
HOME AFFAIRS REFERENCE(S):          BCC2021/1497363
MEMBER:Peter Booth
DATE:16 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 16 June 2023 at 3:21pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – limited academic progress – diploma level courses in unrelated fields – multiple course cancellations – return visits to China – no details of a career path – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, 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 9 February 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 July 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant was not a genuine temporary entrant.
The applicant appeared before the Tribunal on 9 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was assisted in relation to the review.
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 temporary entrant.
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 gave evidence at the hearing, the substance of which was as follows.
The applicant had read the delegate’s decision dated 9 February 2022 refusing his application for a student visa.
The applicant understood that the issue for determination was whether he was a genuine temporary entrant.
The applicant was asked to describe his current enrolment including commencement and completion dates. The applicant said “Certificate IV in Ageing Support start on 10 July and it will finish on 7 July 2024”. The Tribunal asked why the applicant had supplied a confirmation of enrolment in respect of such a course which would be completed in July 2023. The applicant answered “that is for Certificate IV Ageing Support, then Diploma Community Services”. The applicant was invited to start again with his response. He said “Certificate IV Ageing Support July 2022 and finish July 2023”. He was asked whether he was enrolled in any other courses. He said “no”. The Tribunal asked the applicant why he had produced a confirmation of enrolment for a Diploma of Community Services which was to commence in July 2023 and was scheduled to be completed in July 2024. He said “this is my next course”. The applicant had produced confirmation of enrolment documents to the Tribunal in respect of a Certificate IV in Ageing Support conducted between 11 July 2022 and 9 July 2023 and a Diploma of Community Services due to be conducted between 10 July 2023 and 7 July 2024. Notwithstanding the vague nature of the applicant’s evidence, the Tribunal accepts that he is enrolled in the courses described in the confirmation of enrolment.
The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2).
In summary, the information provided by the applicant was as follows.
The applicant completed “high school” in China in June 2014. He did not disclose any employment history in China.
The applicant arrived in Australia on 9 March 2015 and since that time has returned to China on three occasions, in December 2015 for 2 weeks, in February 2018 for one month and in January 2020 for 2 months. He also travelled to Malaysia in February 2020 for 2 weeks, the purpose of which was described as “holiday visit & transition to Australia”.
The application for the student visa in question was made on 30 July 2021. The applicant stated his visa history in Australia to be as follows: he held a “”student” visa between February 2015 and March 2021 and another “student” visa between August 2017 and August 2021. The currency of the first student visa appears to be a typographical error.
The applicant stated his study history in Australia to be as follows: he completed a General English course, an Academic English course and a Foundation English Entry course between March 2015 and March 2016, he enrolled in a course described as “Standard Foundation Program” conducted between April 2016 and November 2016 but did not complete it, he then completed a General English course between December 2016 and March 2017, he enrolled in a Diploma of Engineering conducted between June 2017 and June 2018 but did not complete it, he completed a Certificate IV in Leadership and Management between April 2018 and April 2019, he completed a Diploma of Leadership and Management between April 2019 and April 2020, he completed an Advanced Diploma of Business between May 2020 and May 2021 and he completed a Certificate III in Individual Support between July 2021 and July 2022. He stated that he was “studying now” a Certificate IV in Ageing Support conducted between July 2022 and July 2023 and had a “future enrolment” in a Diploma of Community Services due to be conducted between July 2023 and July 2024.
The applicant stated that he was employed as a “waiter” between July 2016 and March 2022 from which he derived an annual salary of approximately A$10,000.
The applicant stated that his father, mother and brother reside in China.
The applicant stated that he owned assets in Australia comprising an “apartment”.
As to his future employment plans and expected future remuneration, the applicant stated, “please refer to my statement attached”.
The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary, were as follows.
When asked to state his employment history in China he said “I had none”. The applicant confirmed that he arrived in Australia on 9 March 2015 as the holder of a “student visa”. He was asked what course he intended to study at that time. He responded “English”. The Tribunal asked the applicant whether he came to Australia for the purposes of studying English only. He said “no”. When invited to elaborate he said “I want to go to college as well”. He was again asked to state his intention in respect of study. He said “I wanted to study chemical engineering”. It was asked whether he enrolled in such a course. He said “yes, my parents wanted to study the course”. When the question was repeated he said “I was enrolled”. He was invited to state the name of the course including the commencement and completion dates. He said “what I meant was chemical engineering was what my parents wanted me to study, however some issues happened at my family so we didn’t stick to that plan”.
The Tribunal observed that he enrolled in a Standard Foundation Program but did not complete it. The applicant agreed. It was asked whether he was excluded from the course or he abandoned it. He responded “I gave up”. It was asked when this occurred. He said “in 2016”. When invited to be more precise he said “the latter half of 2016”. He was again asked to give details of when he abandoned the course. He said “I could not continue with the course because something happened to my family”. The Tribunal invited the applicant to say anything further about his decision to abandon the course. He said “my parents wanted to divorce”. He was asked when he became aware of that. He said “at the beginning of 2016”. The Tribunal asked the applicant whether that was the reason for his abandoning study. He said “yes, because I couldn’t continue, couldn’t sleep at night”. The Tribunal asked the applicant why it took from the beginning of 2016 to the latter half of 2016 in order for him to decide to abandon the course. He said “because my parents wanted me to complete, and I wanted to try, but I discovered too difficult to continue”. He was asked why he did not defer the course. He said “I have further study”. He was invited to explain his response. He said “I started English after I abandoned this Foundation course”. The Tribunal asked the applicant why he did not return to China permanently around this time if he was so concerned about his parents’ circumstances. He said “my parents spent money to send me to study, they wanted me to learn something before I returned to China”.
The Tribunal observed that the applicant enrolled in a Diploma of Engineering in June 2017 but did not complete it. The applicant agreed. When asked whether he abandoned the course or was excluded from it he said “I abandon it”. It was asked when this occurred. He said “in 2018”. He was invited to be more precise and responded “at beginning of 2018”. He was invited to say anything more about why he abandoned the course. He said “engineering was a course I wanted to study, but I did not enjoy it”. He was asked why he enrolled in the course. He said “because they were having divorce issues and didn’t dare to protest against them”. The Tribunal asked whether it was up to the applicant as a student to choose his courses and apply himself and to complete the course of study. He said “my mother was quite tough and dominant, she insisted study what she believed”.
The Tribunal observed that he then changed the direction of his study to leadership and management courses. The applicant agreed. It was asked whether he wanted to say anything about the change in direction of his study. He said “that is what I wanted to study”. The Tribunal asked him what had happened to the dominant wishes of his mother who insisted that he study courses selected by her. He said “because my parents’ relationship got better so I told them my opinion and idea, my mother heard what I said and she felt sorry and didn’t demand me as her wish anymore”.
The Tribunal observed that the applicant had finished two leadership and management courses thereafter and asked why he did not return to China permanently at that time. He said “because of Covid, I wanted to learn ageing support”. The Tribunal observed that after completing leadership and management courses he did not enrol in ageing support courses but enrolled in an Advanced Diploma of Business. The applicant agreed. He was asked whether he wanted to say anything about the change in direction from his study of leadership and management to business. He said “I think they are related to each other”.
The Tribunal observed that he then changed the direction of his study again to ageing support. The applicant replied “because of Covid”. He was invited to explain his response. He said “because I believe this may be a better industry and provide better career future”.
The Tribunal observed that he had provided information to the Tribunal that he had been employed as a waiter in Australia and asked whether he has obtained any other employment. He said “yes, I have employment in Australia, I was a waiter”.
He was asked whether he had any real property in China in his own name. He said “no”. When asked whether he owned real property in Australia he said “that belongs to my father”. The Tribunal asked the applicant when the property was purchased. He said “at the end of 2017”. He was asked whether he had resided at that address since it was purchased by his father. He said “yes”. The Tribunal asked what would happen to the property when the applicant completed study in Australia in 2024. He said “it would be sold and that money can be used to establish own business in China”.
He was asked to state his career intentions when he returns to China. He said “as I have learned this I want to find a job”. The Tribunal observed that his answer was vague and asked if he wanted to say anything further. He said “I think ageing support is strongly needed in China, because of Covid-19 not many people in this industry”.
The Tribunal observed that it had information that he had enrolled in a Bachelor of Engineering on three occasions and invited the applicant to comment. He said “that was a request from my parents”. The Tribunal observed that the information disclosed that each enrolment was cancelled due to non-commencement of study and invited him to comment. He said “these courses applied by the Chinese agent who was contacted by parents but couldn’t continue these courses”. The Tribunal observed that it had information that he enrolled on three occasions in the Bachelor of Engineering course and never commenced it. He was asked whether that was correct. He said “yes, because my parents contacted that agent I did not tell them that what I wanted to study because they were having a severe issue and because of this matter my mother felt sorry, now she has loosened her control over me and I can study, but in past was not the case”.
The applicant was asked whether he intended to return to China permanently when he completed his Diploma of Community Services in July 2024. He said “yes”.
He was asked whether he intended to apply for permanent residence in Australia. He said “no”.
When invited to add anything further to his evidence the applicant said “I cherish my time of study in Australia, however because of the incident to my family, it has influenced my study, I was just 21 years old and very immature, can’t learn first time I leave my parents and go study in a foreign country, so family issue had huge influence on me, now I had become more mature and family issue no longer exists”.
Prior to the hearing, the applicant provided several documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to those documents. The applicant provided a confirmation of enrolment in respect of a Certificate III in Individual Support conducted between 12 July 2021 and 10 July 2022, and a letter dated 30 April 2021 from the course provider which confirms that the applicant has completed a Certificate III in Individual Support on 10 July 2022. Having regard to the date of completion in the letter and in the confirmation of enrolment document, the Tribunal presumes that the date of the letter from the course provider is erroneous. The applicant also provided a second confirmation of enrolment in respect of a Certificate IV in Ageing Support conducted between 11 July 2022 and 9 July 2023, and another confirmation of enrolment in respect of a Diploma of Community Services due to be conducted between 10 July 2023 and 7 July 2024. The Tribunal accepts that the applicant is enrolled in the latter two courses.
The applicant provided two statements in support of his application for review. The statements are undated, and without page numbers or paragraph numbers. The statements were not referred to by the applicant during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight.
The Tribunal makes a number of observations in relation to the statements. The first statement is unsigned, undated, and without page or paragraph numbers. It is of two pages in length. In this statement, the applicant addresses the criteria for the grant of a student visa by reference to a number of subheadings. The applicant states that upon the completion of his Advanced Diploma in Business, the events of the global pandemic caused him to consider study in “health care and support”. He expresses an intention to return to China “to support the people that have been affected by the pandemic and help my community”. He also states an intention that “after I complete my degree I would go back to China and start my career journey”. The applicant also states an intention to “start my own business to help more people in need”. The Tribunal observes that the applicant does not explain the changes in direction of his study in Australia, why he has not returned to China permanently after successfully completing some study, and why he did not return to China permanently when his most recent student visa application was refused or provide any details of his career aspirations.
The second statement is signed, undated, and without page or paragraph numbers. It is of slightly more than one page in length. The applicant states that 2016 “was a difficult time for me”. He explains that his parents separated and that “this sudden incident made it impossible for me to concentrate on my studies in Australia”. He goes on to state that he enrolled in the engineering course at his mother’s insistence but that he had “absolutely no interest in engineering and it was too difficult for me”. He states that he struggled with the course and “I simply couldn’t keep up” with it. By early 2020 the applicant’s parents had reconciled and no longer planned to divorce or live separately. The applicant was able, apparently, to make his own choice in study and enrolled in a Diploma of Leadership and Management and an Advanced Diploma of Business, both of which he completed. Lastly, he states that after completion of his current course “I will return home for better career development”. The applicant’s explanation about his poor study history and change in direction are given some weight. However, in the Tribunal’s view, a genuine student would maintain the course of study, choose courses of study in which they are interested and which they have reasonable prospects of completing successfully rather than being influenced by family and friends. Further, a genuine student would, in the Tribunal’s view, apply themselves to the study at hand and prevail notwithstanding the ups and downs of ordinary life, including the separation or divorce of parents.

The Tribunal conducted a search of the applicant’s study history and by letter dated 24 May 2023 invited the applicant to comment upon certain adverse information. The adverse information was described as follows:
The particulars of the information from the Department of Education’s records are that:
·You completed a General English course between 16 March 2-15 and 31 Jul 2015.
·You completed an Essential Academic English (Intermediate to Upper Intermediate) course between 3 August 2015 and 9 October 2015.
·You completed a Foundation English Entry Course between 12 October 2015 and 11 March 2016.
·You enrolled in a Standard Plus Foundation Program, to be completed between 20 January 2016 and 25 November 2016. Your enrolment was cancelled due to ‘Non‑commencement of studies’.
·You enrolled on a Standard Foundation program, to be completed between 6 April 2016 and 25 November 2016. Your enrolment was cancelled due to ‘Unsatisfactory attendance’.
·You completed a general English (Elementary to Upper Intermediate) course between 5 December 2016 and 10 March 2017.
·You enrolled three times in a Bachelor of Engineering (Honours) course, to be completed between 27 February 2017 and 31 December 2020, 6 March 2017 and 31 December 2020, and 25 June 2018 and 4 June 2021. Your enrolments were cancelled due to ‘Non-commencement of studies’.
·You enrolled in a Diploma of Engineering (52 weeks) to be completed between 26 June 2017 and 9 June 2018. Your enrolment was cancelled due to ‘Unsatisfactory course progress’.
·You completed a Diploma of Engineering between 9 April 2018 and 7 April 2019.
·You enrolled twice in a Diploma of Leadership and Management, to be completed between 8 April 2019 and 5 April 2020. Your first enrolment was cancelled due to ‘Change to student enrolment’. You completed your second enrolment on 5 April 2020.
·You completed an Advanced Diploma of Business between 11 May 2020 and 9 May 2021.
·You completed a Certificate III in Individual Support between 12 July 2021 and 10 July 2022.
·You are currently studying a Certificate IV in Ageing Support, to be completed between 11 July 2022 and 9 July 2023.
·You are approved to study a Diploma of community Service, to be completed between 10 July 2023 and 7 July 2024.
A document with screenshots of the results of this PRISMS search accompanies this letter.
This search discloses that you have held 18 Confirmations of Enrolment in Australia since 2015. You have completed nine enrolments and have had seven cancelled. You have changed the direction of your study from English to engineering, to leadership and management, to business, to community and aged care services. The path of your attempted qualifications has not been linear. After completing several English courses you enrolled in an honours degree, failed to complete this course, then began studying vocational courses.
This information is relevant to the review because it indicates that you may not be a genuine applicant for entry and stay as a student and may be using the student visa program to prolong your stay in Australia and to circumvent the intention of the migration program.
In response to this invitation, the applicant provided his second statement, the letter dated 30 April 2021 from the course provider referred to above and a letter from the same course provided dated 2 June 2023 stating that the applicant was currently enrolled in the Certificate IV in Ageing Support course.
A search of the applicant’s movement records conducted by the Tribunal disclosed that he arrived in Australia on 9 March 2015 as the holder of a Subclass TU 573 student visa, he departed Australia on 21 December 2015 and returned on 2 January 2016, the Subclass 573 visa expired on 9 August 2017, he was granted a Subclass TU 500 student visa on 9 August 2017 valid until 4 August 2021, he departed Australia on 10 February 2018 and returned on 7 March 2018, and he departed Australia on 6 January 2020 and returned on 26 February 2020.
The delegate’s decision records that the application for the student visa in question was made on 30 July 2021. The applicant’s previous Subclass TU 500 student visa expired on 4 August 2021, namely, 4 days after the date of the application for the student visa the subject of these proceedings.
The applicant provided a statement to the Department in support of his application for review. It is unsigned, dated 29 July 2021, and has no page or paragraph numbers. It is headed “GTE”. The applicant did not refer to this document to the hearing. Nonetheless it has been taken into account by the Tribunal and given appropriate weight. The Tribunal makes several observations in relation to this document. The applicant refers to his intention to complete a Certificate III in Individual Support, a Certificate IV in Ageing Support and a Diploma of Community Services. He explains his reason for doing so by reference to his experiences during the global pandemic and states an intention to return to China after completing these courses and to “support the people that have been affected by the pandemic and help my community”. The Tribunal observes that the applicant does not explain the basis of his change in direction or level of studies other than a desire to study in ageing and individual support areas, he makes no reference to his parents’ circumstances and provides no detail of his largely aspirational career pathway.
CONCLUSIONS
The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.
Without diminishing the applicant’s evidence, it can be summarised as follows.
The applicant completed “high school” in China in 2014. He has no employment history in China. He arrived in Australia on 9 March 2015 and has returned to China on three occasions but has not returned to China since January 2020. He travelled to Malaysia in February 2024 for 2 weeks for a holiday.
The application for the student visa in question was made on 30 July 2021. The applicant stated that he had held two student visas between February 2015 and August 2021.
He described his study history as follows: he completed a General English course, an Academic English course and a Foundation English Entry course between March 2015 and March 2016, he enrolled in a course described as “Standard Foundation Program” conducted between April 2016 and November 2016 but did not complete it, he then completed a General English course between December 2016 and March 2017, he enrolled in a Diploma of Engineering conducted between June 2017 and June 2018 but did not complete it, he completed a Certificate IV in Leadership and Management between April 2018 and April 2019, he completed a Diploma of Leadership and Management between April 2019 and April 2020, he completed an Advanced Diploma of Business between May 2020 and May 2021 and he completed a Certificate III in Individual Support between July 2021 and July 2022. He stated that he was “studying now” a Certificate IV in Ageing Support conducted between July 2022 and July 2023 and had a “future enrolment” in a Diploma of Community Services due to be conducted between July 2023 and July 2024.
This information is consistent with the search of the applicant’s study history conducted by the Tribunal, namely, that it is very poor. In summary, the search discloses that the applicant has held 18 confirmations of enrolment in Australia since 2015, nine of which he has competed, and seven of which have been cancelled. He has changed the direction of his study from English to engineering, to leadership and management, to business, to community and aged care services. After completing several English courses he enrolled in an honours degree, failed to complete this course, and then began studying vocational courses. He has successfully completed three courses of study since arriving in Australia in March 2015.
The applicant appears to have stable employment in Australia. He owns no assets in China but resides in premises in Australia which were purchased by his father in 2013. The applicant asserts that property will be sold once he completes his study in Australia.
The applicant has blamed his inability to complete engineering studies on two things. First, he asserts that his mother insisted that he undertake the course. In the Tribunal’s view, this is a most unconvincing response. A genuine student would select a course which is of interest and diligently complete it. It is convenient but unsatisfactory to blame poor performance on someone else. The applicant is an adult and is responsible for his own decisions. Further, the Tribunal observes that the applicant’s mother did not corroborate the applicant’s explanation. This is given some weight and undermines the applicant’s explanation somewhat.
The applicant also blames his poor study history on his parents’ marital instability. Whilst this issue may have been of some concern, in the Tribunal’s view, a diligent student would press on with study or apply to defer the course. The applicant’s failure to do so is not what would be reasonably expected by a genuine student or a genuine temporary entrant. Further, the Tribunal notes that neither of the applicant’s parents have given evidence to corroborate his explanation. Once again, this is given some weight because it undermines the applicant’s explanation somewhat. On balance, the Tribunal considers the applicant’s conduct insofar as study is concerned is inconsistent with that of a genuine temporary entrant and more consistent with the conduct of a person who is intent on staying in Australia by any available means.
The applicant’s career intentions are vague and aspirational at best. He has provided no details of his intention to return to China and commence employment in the aged care sector.
Lastly, the applicant’s parents and his brother reside in China.
The applicant has not explained to the Tribunal’s satisfaction why he has changed the level of his study from higher education study to vocational courses in Australia, why he has changed the direction of his study in Australia on several occasions, why he has not pursued employment using his existing qualifications, why he has not returned to China permanently when his study was faltering, why he did not return to China permanently when he successfully completed some courses of study, why he did not return to China permanently when his student visa application was refused, why he has only returned to China on three occasions and not since January 2020, why he has only completed three vocational courses of study since March 2015, and why he has not provided details of a clear and cogent career path.
In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from China. The applicant has provided evidence of direct family ties to his home country which could operate as an incentive to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to China, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to China.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 9 March 2015 as a holder of a student visa and thereafter was granted another student visa which expired in August 2021. The proposed study would extend the applicant’s stay until at least December 2023. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view, this is not the conduct of a genuine temporary student. On balance, it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa program.
The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First, the applicant has given extremely vague evidence in that regard. Secondly, the applicant has provided no details of a career path which remains largely vague and aspirational. Lastly, having regard to the applicant’s poor study history, there exists a reasonable doubt as to whether he will complete his current course of study on time or at all.
The Tribunal observes that the applicant’s current study intentions are inconsistent with the applicant’s previous study history and inconsistent with his plans when he entered Australia.
On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.
The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.
The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between China and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to China. The applicant has been unable to demonstrate substantial ties or personal assets in his home country, which diminishes his incentive to return to China.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 9 March 2015, he has spent more than 8 years in Australia and only returned to China on two occasions, he has no employment history in China, he owns no assets in China he appears to have stable employment in Australia, he resides in Australia in premises owned by his father, and he intends to reside in Australia, if permitted, for the purposes of study until at least December 2023 although there is reasonable doubt as to whether he will complete the course of study on time or at all, all of which indicate that he does not appear to have strong personal ties to China. On balance, the Tribunal assesses the applicant’s incentive to return to China to be minimal.
The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable him to achieve that goal. The applicant was granted two student visas which would have facilitated the applicant’s study in his desired field. The applicant has changed the direction of his study on several occasions, he has changed the level of his study, and he has only completed three relatively short courses since arriving in 2015. On balance, it appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.
The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa program as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.
There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in China; political or civil unrest circumstances in China; remuneration the applicant could expect to receive in China or a third country compared with Australia; circumstances in China relative to Australia or any other country; and the applicant’s circumstances in China relative to others in that country.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Peter Booth
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;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non‑compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2023] AATA 1895

16 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction