Martinez Ferrada (Migration)

[2022] AATA 3449

Martinez Ferrada (Migration) [2022] AATA 3449 (16 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Erich Matias Martinez Ferrada

REPRESENTATIVE:  Mr Nicolas Miranda (MARN: 1687254)

CASE NUMBER:  2116136

HOME AFFAIRS REFERENCE(S):          BCC2021/1638299

MEMBER:Peter Booth

DATE:16 September 2022

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 September 2022 at 11:50am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – current enrolment – limited academic progress – multiple course cancellations – financial hardship – limited reference to future career path and benefit – 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 August 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.

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 (Cth) (the Regulations) because applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 8 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

5. The applicant was assisted in relation to the review.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)

8. 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?

9. 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.

10. 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.

11. The applicant gave evidence at the hearing, the substance of which was follows.

12. The applicant had read the delegate’s decision dated 19 October 2021 refusing his application for a student visa.

13. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.

14.   The applicant was asked to describe his current enrolment including commencement and completion dates. The applicant said, “Diploma of Project Management with start date don’t know end date is eighth of July, and Advanced Diploma begins on 11 July 2022 ending on 7 July 2023”.

15.   The applicant had produced a confirmation of enrolment document to the Tribunal in respect of two courses, a Diploma of Project Management which commenced on 12 July 2021 and was scheduled to be completed on 8 July 2022 and an Advanced Diploma of Project Management scheduled to commence on 11 July 2022 and be completed on 7 July 2023. Notwithstanding the vague nature of the applicant’s evidence the Tribunal accepts that he is enrolled in the course described in the confirmations of enrolment.

16.   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).

17.   In summary the information provided by the applicant was as follows.

18.   The applicant completed a course described as “kinesiologia” between March 2010 and December 2012. He commenced another course described as “Business Administration” between March 2013 and December 2015.He did not complete this course. Both courses were commenced prior to arriving in Australia. He stated his employment history, prior to arriving in Australia, to be as follows he was a “soccer teacher volunteer” between April 2010 and November 2010, employed in a “admin role” between April 2012 and October 2014 and as a “sales marketing representative” between March 2015 and March 2016. He stated that he derived an annual salary from the latter position of AU$13,676.

19.   The applicant arrived in Australia on 31 March 2016 and since that time has returned to Chile on one occasion in January 2017 for 17 days.

20.   The application for the student visa in question was made in August 2021 the applicant stated his visa history in Australia to be as follows: he held a “TU 500” visa between Fairbury 2016 and June 2016, another “TU 500” visa between August 20 16 November 2017, another “TU 500” visa between November 2017 and November 2018, and a final “TU 500” visa between November 2019 in August 2021.

21.   The applicant stated his study history in Australia to be as follows: he completed a general English course between April 2016 and August 2016, another English course between August 2016 and October 2016, a Certificate IV in Marketing and Communication between October 2016 and August 2017, a Diploma of Marketing and Communication between October 2017 and September 2018, he enrolled in an Advanced Diploma of Marketing and Communication in October 2018 but did not complete it, he enrolled in another Advanced Diploma of Marketing and Communication in a different institution in March 2019 but did not complete it, he completed a Certificate III in Fitness between October 2019 in July 2020, he enrolled in a Certificate IV in Fitness in July 2020 but did not complete it, he enrolled in a Certificate IV in Fitness at a different institution in October 2020 but did not complete it, he was “studying now” a Diploma of Project Management which commenced in July 2021 and was scheduled to be completed in July 2022 and had a “future enrolment” in an Advanced Diploma of Project Management due to start in July 2022 can be completed in July 2023.

22.   The applicant stated that he was employed as a “delivery rider” in September 2016 and then as a “general labourer” between November 2017 and August 2019. He stated that he derived an annual salary from the latter position of AU$48,000.

23.   The applicant stated that his mother, father, stepsister, and two stepbrothers, reside in Chile.

24.   The applicant did not provide any information regarding ownership of assets in Chile stop

25.   As to his future employment plans the applicant stated, “please see applicant statement”.

26.   As to his expected future remuneration the applicant stated, “please see applicant statement”.

27.   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.

1. The applicant confirmed that he arrived in Australia on 31 March 2016 and that since that time he has held four subclass 500 student visas.

2. The Tribunal observed that he enrolled in an Advanced Diploma of Marketing and Communication in October 2018 but did not complete it. The applicant agreed. He was asked when he ceased studying that course. He said, “don’t have exact date but changed to Certificate of Business”. He was asked how long he studied the Advanced Diploma of Marketing and Communication at Australian Pacific College. He said, “one term, start five March and ended in August of same year”. He was invited to say anything further. He said, “then continued study in same year doing Certificate of Fitness”. The Tribunal asked the applicant whether he wanted to say anything about and why he abandoned the first Diploma of Marketing and Communication. He said, “I was having financial problems time, fees higher, look for another college which fit better”.

3. The Tribunal observed that he then enrolled in the same course at Clarendon business College in March 2019 but did not complete it. The applicant agreed. He was asked when he ceased studying that course. He said, “in August 2019”. When invited to comment about abandoning the course he said, “I change course, I had different expectations for college, I change to study fitness, mainly because of that to change due to my plan for future”.

4. The Tribunal observed the then enrolled in a Certificate IV in Fitness in July 2020 but did not complete it. The applicant agreed. He was asked when he ceased studying that course. He said, “in June 2021”. When asked whether he was sure of that date he said “yes”.

5. The Tribunal observed that he then enrolled in the same course at a different institution in October 2020 but did not complete it. The applicant responded, “I had to change because the college, got dates wrong”. He did not elaborate. He was invited to explain his response. He said, “Certificate III started October 2019 finish 13 July 2020, Certificate IV did not finish, date was 12 April 2021, I didn’t get it, I started Certificate IV at SELC on 13 July 2020 but was unable to complete, college inform no longer offering the course, and so had to look at other option, end up at CIF doing certificate for, end date 12 April 2021”. The Tribunal asked whether he had any proof that the first course was discontinued. He said, “I don’t have evidence here”.

6. The Tribunal observed that he did not complete the Certificate IV course on the second occasion and asked when he stopped studying that course. He said, “12 April 2021”. He was asked whether he had anything to say about that. He said, “we had to change to the college, which was the same as SELC, we started then it was practical like Certificate III, and then it began missed out on class, and everything online, I didn’t have what I was looking for, it was not same learning, and feedback were given not same, and less motivation”.

7. The Tribunal asked the applicant to explain the change in direction of his study on several occasions. He said “main reason from change to marketing to project management is to do with my plan for future, do with fitness and mental health, and family business which I will take charge of that is reason I change with business and marketing, and course I am doing now will help me with that, I will do over there, and so main change in direction from marketing to fitness, I felt fitness did not meet my expectations, so I changed to management”.

8. The applicant was asked to state his career intentions when he returns to Chile. He said, “my intention is to be in charge of and be responsible for in family business”. He did not elaborate. He was asked to state the nature of the family business. He said, “primarily in mental health and sport and mental health”. He was asked when he decided that this is what he wanted to do. He said, “I made a decision at end of course when study marketing and project management will help”. The Tribunal asked the applicant whether he was asserting that he always wanted to take over the family business or if he had made the decision recently and if so to inform the Tribunal when that decision had been made. He said, “I decide to study English”. When the question was repeated, he said “decision to return to my country was in start from 2016”. When the question was repeated, he said that he did not understand the question. The Tribunal asked the applicant whether it was his intention to study and return to Chile and take over his family business at the time that he arrived in Australia. He said “yes”. The Tribunal asked the applicant why he had study marketing, fitness and now project management if that was his intention at all relevant times. He said, “not a professional in mental health, my to be marketing and projects, and my idea then to expand to sport so is mental health then sport, and therefore I need to have a clear idea of what marketing”. The Tribunal observed that even if these things were relevant to the family business, he had not completed those studies and asked why he had not persisted with them. He said, “with fitness was because expectations, with Certificate IV now against time”.

9. The Tribunal asked the applicant why he did not mention this career path in his recent statutory declaration. He said that he did not understand the question. The Tribunal observed that he had made a statutory declaration on 19 April 2022 and asked him if he recalled doing so. He said that he did. He was asked whether he had a copy of the document. He said that he did. He was asked to direct the Tribunal’s attention to any mention of this career path in that document. He said, “only mentioned, but no depth”. He was again asked to point out the passage upon which he relied. He said, “last paragraph, I say I will go back to my country”. He was asked whether he was asserting that there was a reference to his future career path. He said, “I did not go into depth”.

10. When invited to add anything further to his evidence the applicant said, “I want to do two courses and study during the time, my intention to get academic training and nothing else”.

11. Prior to the hearing the applicant provided a variety of 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. A certificate dated 24 June 2016 confirms that the applicant completed a general English course, another such certificate dated 7 October 2016 confirms that he completed another general English course, a certificate dated 17 September 2017 confirms that he completed a Certificate IV in Marketing and Communication. An undated statement from the applicant’s mother states that he will take over management of her company, “dedicated to mental health”. Apparently this corporation conducts several health clinics in Chile specialising in mental health. The applicant will become its chief executive officer.

12. Prior to the hearing the applicant provided a statutory declaration in support of his application for review. The declaration is dated 19 April 2022. The declaration was not referred to by the applicant during the course of giving evidence at the hearing. Nonetheless it has 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 statement. The applicant states that he enrolled in a “business administration” course in Chile but did not complete it. The declaration does not explain to the Tribunals satisfaction why he has changed the direction of his study on several occasions if it was his intention to be the chief executive officer of the family mental health clinic business. The declaration does refer to a Certificate III Fitness course being discontinued because the provider “closed down “. However, no documentary corroboration has been provided. He states that: “My goal has always been more focused on building a business or to work in an area related with sport which is what I want to do in Chile. So, then this has set me down the path of start a Diploma and Advance Diploma in project management which is the course I am doing at this moment.”. The Tribunal observes that the declaration does not disclose an intention to work in the family business in any capacity or at all. Lastly the applicant contends that he has completed courses as follows: Diploma of Marketing and Communication and Certificate III in Fitness. However, he concedes that he does not have certificates to corroborate his assertion. The Tribunal notes this was also the position when the matter was considered by the Department and was noted in the delegate’s decision.

13. The applicant also provided a statement to the Department in support of his application for review. It is undated, unsigned and without paragraph numbers. The applicant did not refer to this whilst giving evidence at the hearing. Nonetheless the Tribunal has had regard to it and make the following observations. The applicant does not explain to the Tribunals satisfaction why he has changed the direction of his study whilst in Australia. Secondly the applicant does not state an intention to become involved in the family business of mental health clinics. As to his future career aspirations the applicant stated: “My dream when I return to Chile is to create my personal fitness business and being able to start my own family next to my parents and other family members. “.

14. The applicant’s representative was invited to make submissions to the Tribunal. He declined to do so. When asked whether he relied on his written submissions dated 20 April 2022 he said that he did.

15. Those submissions are dated 20 April 2022, and without page numbers or paragraph numbers. They have been taken into account by the Tribunal and given appropriate weight. The Tribunal makes a number of observations in relation to the submissions. These submissions do not explain why a Diploma of Marketing and Communication course, allegedly completed in September 2018 has not been proved by way of production of a certificate. Similarly, it asserts that a Certificate III in Fitness was completed in July 2020 but that the certificate is missing. The submission does not explain why a copy has not been obtained and produced to the Tribunal.

    CONCLUSIONS

1. 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.

2. Without diminishing the applicant’s evidence, it can be summarised as follows.

3. The applicant completed a physiotherapy course in Chile in 2012. He commences a business administration course in Chile did not complete it. He was employed in Chile in administration and then in sales and marketing prior to arriving in Australia.

4. He arrived in Australia on 31 March 2016 and has returned to Chile on one occasion but not since January 2017. He has held for subclass 500 student visas at whilst in Australia. His study history is complex and was stated by the applicant as follows: he completed a general English course between April 2016 and August 2016, another English course between August 2016 and October 2016, a Certificate IV in Marketing and Communication between October 2016 and August 2017, a Diploma of Marketing and Communication between October 2017 and September 2018, he enrolled in an Advanced Diploma of Marketing and Communication in October 2018 but did not complete it, he enrolled in another Advanced Diploma of Marketing and Communication in a different institution in March 2019 but did not complete it, he completed a Certificate III in Fitness between October 2019 in July 2020, he enrolled in a Certificate IV in Fitness in July 2020 but did not complete it, he enrolled in a Certificate IV in Fitness at a different institution in October 2020 but did not complete it, he is currently studying a diploma of project management which commenced in July 2021 and was scheduled to be completed in July 2022 and has a future enrolment in an Advanced Diploma of Project Management due to start in July 2022 can be completed in July 2023.

5. The applicant contends that he has also completed a diploma of marketing and communication and a Certificate III in Fitness. He asserts that these were completed in 2018 and 2020 respectively. He has not produced certificates to prove his assertion and not explained to the Tribunal satisfaction why he has not done so. This is given some weight and the Tribunal does not accept he has completed these courses.

6. He has been employed in Australia but is not clear whether he is currently employed. His immediate family resides in Chile. There is no evidence that he owns assets in Chile.

7. The applicant has changed the direction of his study on several occasions on several occasions from marketing and communication, then fitness, and now project management.

8. The applicant has also changed his career aspirations on several occasions since arriving in Australia. In an undated statement provided to the Department he stated that he intended to start a fitness business. At the hearing he stated that he wants to be included in the family business of mental health clinics. However, a reasonably contemporaneous statutory declaration made no such reference.

9. The applicant has failed to complete a number of courses as explained at the hearing. There appear to be gaps in his study but this is not clear.

10. The applicant has not explained to the Tribunal’s satisfaction why he has only returned to Chile on one occasion since arriving in Australia and has not returned to Chile since January 2017, why he has changed the direction of his study whilst in Australia on several occasions, why he has failed to complete several courses of study whilst in Australia, why he has changed his career aspirations on several occasions whilst in Australia, why he did not return to Chile permanently when his most recent student visa application was refused, why he has studied courses in fitness and now project management if his true intention at all material times was to work in the family business of mental health clinics, a clear and cogent career path, details of a career path, why he has not studied business administration courses in Australia if his true intention is to become the chief executive officer of the business providing mental health services at a number of different clinics in Chile, and why his existing skills and experience are insufficient for him to embark on his vague career path.

11. 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 she has satisfied the genuine temporary entrant criterion.

12. The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from Chile. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives 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 Chile, 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 Chile.

13. The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 31 March 2016 as a holder of subclass 500 student visa. The proposed study would extend the applicant’s stay until at least July 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 Tribunals 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 programme.

14. 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 evident as to his career aspirations. Secondly, he has changed his career aspirations on at least two occasions whilst in Australia. Thirdly in his recent statutory declaration he made no mention of a desire or intention to work in the family business of mental health clinics. Next whilst he asserted at the hearing that he has always had an intention to be employed in the family business he has not explained to the Tribunal’s satisfaction why he has not studied courses in Business Administration whilst in Australia. Further he has not explained to the Tribunals satisfaction the relevance of his current courses of study to an intention to work in the management of mental health clinics. Lastly having regard to his poor study history and changes in direction in study there exists reasonable doubt as to whether the applicant will complete his current courses on time or at all.

15. The Tribunal has considered the applicant’s study history since arrival and notes that he commenced study in 2016 he has only provided evidence of completion of two short English courses and a vocational course in marketing and communication.

16. The Tribunal observes that his current course of study is inconsistent with the applicant’s qualifications and experience obtained in Chile and is inconsistent with his plans when he entered Australia. The applicant now wishes to pursue studies in project management in Australia.

17. 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, considering the cost of the study. 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.

18. 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.

19. 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 Chile and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to Chile. The applicant has been unable to demonstrate substantial ties or personal assets in her home country which diminishes his incentive to return to Chile.

20. 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 her future.

21. The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 31 March 2016 the applicant has spent approximately 6 and a halfyears in Australia and only returned to Chile on one occasion and not returned to Chile since January 2017, he owns no assets in Chile and intends to reside in Australia, if permitted, until at least July 2023 all of which indicates that he does not appear to have strong personal ties to Chile. On balance, the Tribunal assesses the applicant’s incentive to return to Chile to be minimal.

22. 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 several student visas which would have facilitated the applicant’s study in his desired field. Having regard to the totality of evidence 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.

23. The Tribunal has considered all information provided by the applicant in support of her 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 her future, her immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

24. 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 programme as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.

25. 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 Chile; political or civil unrest circumstances in Chile; remuneration the applicant could expect to receive in Chile, or a third country compared with Australia; circumstances in Chile relative to Australia or any other country; and the applicant’s circumstances in Chile relative to others in that country.

26. 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).

27. 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.

28. 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

29. 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.