Nguyen (Migration)

Nguyen (Migration) [2020] AATA 3471 (2 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Nhung Thi Hong Nguyen
Miss Maica Nguyen The Pham
CASE NUMBER:  1902115
HOME AFFAIRS REFERENCE(S):          BCC2018/4660597
MEMBER:Peter Booth
DATE:2 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 02 July 2020 at 11:35am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not a genuine temporary entrant – resided in Australia since 2010 – enrolment in divergent courses – birth of children in Australia – strong ties to Australia – use of student program to maintain residence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 499
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 18 January 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 23 October 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.
The applicants appeared before the Tribunal on 16 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were assisted in relation to the review by their registered migration agent.
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 primary applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 18 January 2019 refusing her application for a student visa. The applicant understood that the issue for determination was whether she was a genuine temporary entrant.
The applicant said, in answer to a question, that she is currently enrolled in a diploma of beauty therapy, which commenced on 14 May 2020 and which is scheduled to be completed on 29 June 2021. The applicant had provided a confirmation of enrolment document in respect of that course to the Tribunal prior to the hearing.
The Tribunal informed the applicant that her response to a request for information had been received on 30 May 2020 and that the Tribunal had read it. The applicant confirmed that she had a copy of that document. The Tribunal informed the applicant that the information in the response would be taken into account. The applicant was invited to add anything further to the application to which she said, “my wish is put down in my paperwork”.
In summary the information provided to the Tribunal following a request pursuant to s 359(2) to supply such information is as follows. The applicant completed a “tourism” course prior to arriving in Australia between September 2001 and June 2003. Thereafter she was employed as an “banquet attendant” between July 2007 and December 2008 and in which capacity she earned AU$1,600 annually.
The applicant arrived in Australia on 25 July 2010 and since that time has returned to her home country on one occasion for one month.
The applicant has an extensive visa history in Australia. She was granted a tourist visa in November 2004 valid for one month; she was then granted a second tourist visa in January 2007, valid for one month. She was granted a student visa (Subclass 572) in July 2010, valid until March 2012, a further student (Subclass 572) visa granted on March 2013, valid until October 2015, and a final student (Subclass 572) visa was granted in February 2016, which was valid until October 2018.
The applicant has an extensive study history in Australia. She enrolled in a diploma of beauty therapy in July 2010 but did not complete it; she completed a certificate IV in business between August 2011 and February 2012; she completed a diploma of business between April 2012 and December 2013; she completed a certificate III in financial services between February 2013 and August 2013; she completed a certificateIV in financial services between October 2013 and June 2014; she completed a diploma of accounting between June 2014 and July 2015; she completed a certificate III in retail baking between November 2015 and January 2017; she enrolled in an advanced diploma of business in December 2017 but did not complete it; she enrolled in a diploma of beauty therapy in October 2018 but did not complete it; and she enrolled in a certificate IV in advanced baking in March 2017 but did not commence it. She is currently studying a diploma of beauty therapy, which is anticipated to be completed in June 2021.
In response to a question regarding her choice of education provider in Australia, the applicant stated:
The Applicant has chosen to study at Baxter because she has been studying there a substantial period time and she has enjoyed the the in which the courses have been conducted. The Applicant has chosen to go back to her original course of beaut therapy when she first studied her her studies in Australia because after changing her mind to pursue her studies in accounting she realized that accounting would not be suitable for her future career when she returns to Vietnam upon completion of the curse. In addition now she has given birth to two children and it would be more practical for her to pursue a course of study that is more suitable in her circumstances to complete and make use of for her future career upon returning to Vietnam. After giving to her first child the Applicant started talking to her friends in Vietnam and also from her own online reading about the economy, perceptions and living standards of people in Vietnam, especially women, that Vietnamese women now take care of their looks much more than when the Applicant was living in Vietnam. The Applicant started forming a view it would be more practical and easy for her to become successful if she was to pursue a future career within in the beauty sector upon returning to Vietnam after completing her studies abroad. She then started to apply for the Diploma of Beauty Therapy at Baxter Institute. It has always been her intention to obtain the knowledge and skills from a Western education environment in her chosen career path so that she can then bring such knowledge and skill to Vietnam in order to help her and others in her chosen career.
In response to a question regarding the availability of similar courses in her home country, the applicant stated:
The Applicant prefers to study the course of study conducted in Australia because she wishes to first of all improve her English language skills and secondly to experience the Australian way of life within its society. In addition, the Applicant and her families have invested a lot of money in her education in Australia and she wants to make herself and others in her family feel that their effort money has not been wasted as she would be able to return to Vietnam with the educational knowledge and skills that would allow her a successful career in the future as she has chosen right path.
In relation to her employment experience in Australia, the applicant stated that she had undertaken voluntary work experience at a firm between January 2020 and March 2020 for which she was not remunerated.
In relation to her immediate family, the applicant stated that her two children reside with her in Australia. Her former partner also resides in Australia. She did not disclose any immediate family in her home country.
The applicant provided no response in relation to her assets in her home country.
Regarding her future employment plans, the applicant stated:
To find a job within the beauty sector at a contemporary beauty business in Vietnam, where she would be able to apply her knowledge and skills to serve customers. Once the Main Applicant has acquired the relevant experience and skills, she would establish her own business and build her own name.
The Tribunal proceeded to ask the applicant about several matters arising from her statements paraphrased above. The applicant said that she arrived in Australia as the holder of a student visa and her intention was to study a diploma of beauty therapy. When asked why she did not complete such a course, she said “at the beginning I thought that beauty still needs other knowledge”. She did not elaborate. When asked whether she abandoned the course or was excluded from it she was unresponsive. When the question was repeated, she said “I transferred to annual course I was not excluded”. When the applicant was asked whether she abandoned the course she said “no”. When asked to explain, she was again non-responsive but ultimately said “I temporarily stopped attending courses”.
The Tribunal asked the applicant why she did not commence the certificate IV course in advanced baking. She said, “I found out I was pregnant and it made me very tired, and I realise the course was not suitable for me”. She did not elaborate.
The Tribunal observed that she was enrolled in an advanced diploma of business in 2017 but did not complete it. When asked why she did not complete the course she said, “I did not complete it”. When the question was repeated she said, “in terms of the business course only reached diploma level”. When the question was repeated once again she was non-responsive but said “I changed to accounting”.
The Tribunal observed that she had been enrolled in a diploma of beauty therapy course in 2018 but did not complete it. When asked why, she said “when in the middle of the course I am pregnant to a second baby”. She did not elaborate.
When asked as to her employment intentions when she completes the current course of study, she said “I aim to finish, my wish since an early age, I want to study on this and that in order to have knowledge but I have the baby, but fee is high and I want to finish”. She did not elaborate.
When asked whether she could undertake the diploma of beauty therapy course in Vietnam she said “no”. She did not elaborate.
When asked whether she had family in Vietnam, she said “younger brother, mother and grandmother”. The Tribunal asked as to her family in Australia. She said “two children and one ex-husband, sister and brother-in-law here, my mother is here for six months”. The Tribunal asked as to the age of the applicant’s children. She said, “three years and seven months and one year and two months”.
The applicant confirmed that her mother is currently residing in Australia.
The applicant confirmed that she has no assets in Vietnam. She also said that she is not employed in Australia. The Tribunal asked how she was supporting herself in Australia, to which she said “my sister gives me time and money”.
When asked to estimate her income when she returns to Vietnam, she said “if I work for myself or am able to look for a job, but with two children it is difficult even in Australia let alone Vietnam, having children overseas my children are able to attend a kindergarten free of fees, because of the involvement of child protection due to an incident, they assist me and help me”. When the question was repeated, she said “with my knowledge, but I have to bring up children, I am a single mother now”. She did not elaborate.
The applicant’s migration agent was invited to make submissions. He observed that the applicant did not answer questions regarding study and other matters and invited the Tribunal to ask further questions of the applicant. The Tribunal declined. The migration agent requested an opportunity to provide written submissions. The Tribunal pointed out that he had been present throughout the hearing and had an opportunity to make oral submissions. The Tribunal declined to extend the migration agent an opportunity to provide written submissions. The migration agent then requested that the applicant’s sister, apparently present during the hearing but unidentified, give evidence. The Tribunal enquired as to the nature of the evidence. The migration agent was unable to provide any details of the proposed evidence. The Tribunal declined to invite the applicant’s sister to give evidence. In the event, the applicant’s migration agent made short, broad submissions, the substance of which was as follows. He said that the applicant had two children who were born during her time of study, the birth and care of the children would affect her capacity to study and changes in the course of study. He went on to say that the applicant had been a genuine student, completed a number of short courses, and spent a lot of money on education in Australia and that this had been affected by family violence and the birth of two children.
The applicant also provided several documents to the Tribunal as follows: a birth certificate in respect of a female child born on 30 October 2016; a birth certificate in respect of a female child born on 20 April 2019; and an intervention order made on 4 July 2016 against one “Pham, The” and which is stated to expire on 3 July 2017. None of these documents were referred to by either the applicant or her migration agent. Nonetheless, they are taken into account by the Tribunal.
The delegate’s decision records, amongst other things, that the student visa application in question was made on 23 October 2018, three days prior to the expiry of the applicant’s previous student visa.
The applicant did not provide any written statement in support of her application nor had the applicant’s migration agent provided any written submissions in support of the application for review.
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 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.
The Tribunal has considered the applicant’s circumstances in her home country. The applicant is divorced and is from Vietnam. The applicant has provided evidence of social, direct family and financial ties to her home country or other economic incentives to return. When considering the applicant’s circumstances in her home country, the Tribunal therefore finds that she has been able to demonstrate ties to act as an incentive to return to her home country at the completion of the proposed study. The Tribunal accepts that the applicant may have family ties to Vietnam, however given 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 Vietnam.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 25 July 2010 as the holder of a student visa valid until March 2012, a further student (Subclass 572) visa granted on March 2013 and valid until October 2015, and a final student (Subclass 572) visa, granted in February 2016 and valid until October 2018.The student visa application in question was made on 23 October 2018, three days prior to the expiry of the applicant’s previous student visa. The applicant is enrolled in a course of study which is not scheduled to be completed until 29 June 2021.The proposed study would extend the applicant’s stay until at least 29 June 2021. The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia. Whilst the Tribunal accepts that plans can change, this is not the conduct of a genuine temporary student. Rather, it suggests the applicant has decided to extend her stay in Australia by utilising the student visa programme.
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. In her oral evidence at the hearing, the applicant was evasive or non-responsive when asked as to her future employment intentions. In her written responses to the request for information on that topic, she made a vague assertion of commencing her own business in the field of beauty therapy or in the beauty sector.
The Tribunal has considered the applicant’s study history since arrival and notes that: she enrolled in a diploma of beauty therapy in July 2010 but did not complete it; she completed a certificate IV in business between August 2011 and February 2012; she completed a diploma of business between April 2012 and December 2013; she completed a certificate III in financial services between February 2013 and August 2013; she completed a certificateIV in financial services between October 2013 and June 2014; she completed a diploma of accounting between June 2014 and July 2015; she completed a certificate III in retail baking between November 2015 and January 2017; she enrolled in an advanced diploma of business in December 2017 but did not complete it; she enrolled in a diploma of beauty therapy in October 2018 but did not complete it; and she enrolled in a certificate IV in advanced baking in March 2017 but did not commence it. She is currently studying a diploma of beauty therapy, which is anticipated to be completed in June 2021. The Tribunal accepts that the birth of the applicant’s two children would have had some impact upon her ability to study. However, the applicant gave extremely vague evidence in that regard. One child was born in October 2016 and the other in April 2019. The Tribunal observes that the applicant did complete a vocational certificate in retail banking between November 2015 and January 2017. This period would overlap with the pregnancy and birth of the applicant’s first child. Whilst the Tribunal gives the applicant’s pregnancies some weight in relation to her study history, they do not explain the divergent nature of the courses undertaken. The applicant has enrolled in vocational courses in business, financial services, accounting, baking and retail therapy. The applicant was evasive when asked when or why she did not complete or abandon various courses. The applicant gave little if any evidence as to her reasons for changing direction of study. This is given significant weight by the Tribunal.

The Tribunal notes the applicant’s study history is inconsistent with the applicant’s plans when she initially entered Australia.
The Tribunal is not satisfied that the applicant has established that study will provide her with significant benefits in her proposed career plan, considering the cost of the study and the applicant’s existing qualifications. The Tribunal therefore is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to her future beyond the qualifications she already holds.
The Tribunal has had regard to 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 all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.
The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in her home country relative to her potential circumstances in Australia. Given the disparity in economic circumstances between Vietnam and Australia, the Tribunal cannot be satisfied that the applicant has significant incentive to return to Vietnam. The applicant has been unable to demonstrate substantial ties or personal assets in her home country, which diminishes her incentive to return to Vietnam.
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 her proposed study which will outweigh the significant time and monetary commitment this course will require. Therefore, the Tribunal is not satisfied that the applicant has demonstrated the value of her proposed course to her future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 25 July 2010, the applicant has spent almost 10 years in Australia and one month outside of Australia, which indicates that she does not appear to have strong personal ties to Vietnam. The Tribunal also observes that the applicant’s two children reside with her in Australia having been born in Australia, the applicant’s ex-husband resides in Australia, other members of the applicant’s family also reside in Australia and the applicant’s mother currently resides in Australia. Further, the applicant has no assets in Vietnam. Based on this evidence, the Tribunal assesses the applicant’s incentive to return to Vietnam to be minimal.
On balance, 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 her to achieve that goal. The applicant was granted a third student visa, which would have facilitated the applicant’s study in her desired field. The applicant lodged this application three days prior to expiry of the visa. It therefore 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 also had regard to whether there is any other relevant matter and finds there to be no other matter relevant to the assessment of the applicant’s intentions to stay in Australia temporarily. 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 her 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.
On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and overall academic progress. The applicant appears to be 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.
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 Vietnam; political or civil unrest circumstances in Vietnam; remuneration the applicant could expect to receive in Vietnam or a third country compared with Australia; circumstances in Vietnam relative to Australia or any other country; and the applicant’s circumstances in Vietnam relative to others in that country.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.
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).
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.
The application of the primary applicant having been unsuccessful, it follows that those of the secondary applicants also fail.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
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;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2020] AATA 3471

2 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction