Nguyen (Migration)

[2022] AATA 4631

Nguyen (Migration) [2022] AATA 4631 (21 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Trung Hieu Nguyen

REPRESENTATIVE:  Mr Tung Duy Nguyen (MARN: 1575839)

CASE NUMBER:  2115848

HOME AFFAIRS REFERENCE(S):          BCC2021/1651099

MEMBER:Frank Russo

DATE:21 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 21 November 2022 at 4:45pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – gap in studies – limited academic progress – course benefit to future career – diploma level courses in unrelated fields – business and land ownership in home country – business registered in Australia – family ties in Vietnam – 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 18 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 25 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 the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4.    The applicant appeared before the Tribunal by telephone on 11 August 2022 to give evidence and present arguments. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5.    The applicant was assisted in relation to the review, although his representative did not attend the hearing.

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 applicant for entry and stay as a student.

8.    In addition to the application form and copy of the delegate’s reasons for decision and notice of the decision from the Department, on 23 May 2022 the applicant provided the Tribunal with a completed ‘Request for Student Visa Information’ form (s 359(2) response). The applicant provided a response to the hearing invitation on 8 August 2022.

9.    On 11 August 2022, the applicant provided further submissions which included a written submission from his representative and the following documents:

a.Confirmation of enrolment (CoE) for a Certificate III in Painting and Decorating from Orange International College Pty Ltd (Orange) from 10 October 2022 to 26 November 2023;

b.CoE for the Diploma of Building and Construction (Building) with Orange from 15 January 2024 to 1 June 2025;

c.Certificates of the applicant’s ownership of shares in Vinaco Dong Duong and confirming his ownership of 60 per cent of the shares in this company;

d.Certificate of home ownership in Vietnam;

e.Bank account balance;

f.Certificate of land ownership in Vietnam;

g.Certificate of business registration, business owner certificate and general report of business registration for Vinaco Dong Duong;

h.Copy of Vietnam social insurance record;

i.Copy of marriage certificate; and

j.Confirmation of employment of the applicant’s wife.

10.      The Tribunal has regard to these documents. The Tribunal also has a copy of the Department file, which includes a genuine temporary entrant (GTE) statement from the applicant, overseas student health cover policy, a 956 form, a number of financial document from Vietnam, a copy of the applicant’s Vietnamese passport, copies of his wife’s and daughter’s Vietnamese passports and a system generated copy of the applicant’s visa application. The Tribunal has had regard to the documents on that file.

Genuine applicant for entry and stay as a student (cl 500.212)

11. 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?

12. 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.

1. 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.

   Applicant’s evidence at the hearing

2. The applicant gave evidence that he first arrived in Australia in January 2019, when he followed his wife to Australia when she was studying a Master of International Development at RMIT, which she completed. He stated that his wife returned to Vietnam in April 2021, and that he decided in December 2020 that he wished to study in Australia. The applicant gave evidence that he decided to study. He gave evidence that he enrolled in a Certificate III in Painting and Decorating because this course was relevant to a business which he has in Vietnam, in respect of which he has no educational background or qualifications.

3. The applicant gave evidence that he completed a Bachelor of Public Health in Vietnam in July 2007. When asked whether he had enrolled in any courses in Australia prior to the Certificate III in Painting and Decorating, the applicant stated that he commenced an English language course prior to applying for the Student visa under review, although he did not complete it. When asked why, he stated that during the COVID-19 pandemic all learning had to be online, whereas he prefers to learn face-to-face.

4. The applicant told the Tribunal that he commenced studying the Certificate III in Painting and Decorating on 20 September 2021, but he stopped studying the course in November 2021, stating that he studied the course for just over one month, after he received a visa refusal decision from the Department. When asked whether he had received any transcripts or letters from his education provider to indicate how he had been doing in this course, the applicant responded no.

5. The Tribunal noted that the applicant had applied for the Student visa application in August 2021, and that on that on his oral evidence, since that date he had only studied for just over one month. The Tribunal questioned whether there were any reasons for this. The applicant responded that the preparation time required to enrol and study in a course is quite long, that his agent took some time, and he had to push his agent to speed up the process. He stated that he was hoping the situation with the COVID-19 pandemic would improve and that everything would return to normal, which would mean that he could start face-to-face learning. He stated that if learning is online, he can do it from Vietnam and there is no need for him to be in Australia.

6. As to his future plans, the applicant stated that he has shares in a company in the building and construction industry. He stated that he lacks skills and experience within this field, so he wishes to undertake the Certificate III in Painting and Decorating and the Diploma of Building and Construction in order to confidently and effectively manage the business. He stated that he lacks practical experience in this field, in particular, in terms of working with people and managing workers in this field.

7. The Tribunal noted the applicant had provided a number of documents relating to the registration of Vinaco Joint Stock Company (Vinaco), a company in Vietnam, including information about the applicant’s ownership of shares in this company. The Tribunal questioned the applicant about his role and involvement with this company. The applicant stated that the company was registered in October 2012. The applicant stated that he is the Chairman of the company and that he has played a role in the company since 2016. The applicant confirmed that he is the company’s only chairman, although it has a managing director. When questioned whether he plans to remain in the role of Chairman or into another role after he completes his proposed study, the applicant stated that he hopes to move into the administration of management and to also be responsible for some of the construction projects. He stated that at the moment he can only participate in the company by assisting with its business strategy and business plan, but he would like to gain sound knowledge within the construction field. He stated that a friend had asked him to start the company as they hoped he would be able to promote the business.

8. As to how the qualifications from the applicant’s proposed study will assist him with these plans, the applicant stated that first of all people in Vietnam appreciate when people bring back experience from foreign countries. Secondly, he will learn about new technology and methods that he won’t learn about in Vietnam. He has observed that the Australian construction industry uses sustainable and environmentally-friendly materials, which he would like to introduce to Vietnam. He stated that for example, in Vietnam, acetone is still used in the painting industry in Vietnam, even though it is quite poisonous.

9. The Tribunal discussed with the applicant his employment history in Vietnam, including the details provided in his s.359(2) response. He worked as a project assistant for World Vision from July 2008 to April 2011, then as a project coordinator for UNFPA (United Nations Population Fund) from August 2012 to December 2016. He indicates in his s.359(2) response that he was one of the founders of Vinaco and was responsible for project management, holding this role from January 2017 to December 2018.

10. The Tribunal questioned the applicant as to how his proposed courses of study would add value to his future, when he had already reached the peak role at Vinaco, given he is the sole chairman of the company. The applicant stated that he intends to apply himself more widely, rather than restrict his future to this company. He stated that he intends to promote the business across Vietnam, especially in Hanoi, and hopes to promote the use of new technologies from Australia.

11. When questioned how the proposed courses of study will assist him over and above his existing Bachelor of Public Health, the applicant stated that his degree relates to public health, but he is moving into the construction industry. He stated that he is a beginner in the construction industry and that he has enrolled in Painting and Decorating because he would like to learn some basic skills to work as a tradesperson. He stated that the fee for undertaking a Masters-level course in Australia is quite high, so he would prefer a more practical course. He stated that the safety of workers is a big issue in Australia, whereas in Vietnam the focus of managers within the construction industry is on paperwork, so there is a high rate of work-related deaths and injuries, which he is aware of from working in the medical field.

12. The Tribunal noted that in his s.359(2) response, the applicant indicates that from March 2021 to April 2021 he was the owner of a company called Jessica Export. The applicant stated that this was a small business which was registered in Australia and had an ABN. He stated that it was registered for one year. The Tribunal noted that the applicant indicates in his s.359(2) response that he earned $50,000 as an annual salary as owner of this company. The applicant stated that this was the amount he earned, according to the accountant who lodged his tax return.

13. The Tribunal put to the applicant that the applicant’s establishment of such a business, and the salary of $50,000 which he was able to earn, may indicate that he has business opportunities in Australia, which may act as an incentive to remain in Australia. The applicant stated that he stopped the business during his enrolment process in Australia. He stated that he could earn $50,000 in Vietnam and that his main focus is on his long-term career and professional development, rather than on earning money in Australia. He stated that he is now 38 years old and would rather do something he is passionate about.

14. The Tribunal also noted that the applicant indicates in his s.359(2) response that he commenced work as a ‘Learner’ at Vicpainter in June 2021. The Tribunal noted that the applicant commenced his first enrolment in the Certificate III in Painting and Decorating in September 2021, which may suggest that he enrolled in this course of study because it was related to work he was doing in Australia and may suggest he was attempting to develop a career in Australia. The applicant responded that this role was more of an apprenticeship and that he was observing a friend in his work. He stated that he did not get paid. The applicant stated that if he had intentions to remain in Australia, he would have chosen a career in a field where there is a skills shortage, but he didn’t do this. The applicant also stated that he disagreed with the GTE statement which was provided with his visa application. He stated that his agent sent it to the Department without consulting with him beforehand. When asked what he disagreed with, he again stated that he was not consulted about it, that it is very brief and does not include the information he had presented to the Tribunal about his process of getting to the current point.

15. As to his personal ties to Vietnam, the applicant stated that his wife and daughter are there. He stated that his wife has a very good job in Vietnam. The Tribunal noted the information the applicant provided regarding his ownership of land, a bank deposit and other financial information in Vietnam. The Tribunal also noted the applicant’s return travel to Vietnam.

16. The Tribunal raised concerns with the applicant’s immigration history, in particular the length of time the applicant has remained in Australia and his lack of progress with his studies during this time, as well as the length of time that he now proposes remaining in Australia to complete his studies. The applicant stated that one of the conditions of his visa was that he could not study for more than three months duration, which is why he first enrolled in a short English course of only three months. The Tribunal questioned the applicant as to whether this condition still applied to him after he applied for the Student visa as a primary applicant. The applicant confirmed that the condition no longer applied after he applied for the Student visa under review, but he stated that he wanted to have face-to-face learning so he could meet people to practice English. He stated that if the course is online then he does not think it is necessary. The Tribunal put to the applicant that there was nothing stopping him from enrolling in or re-enrolling in courses in English or the Certificate III in Painting and Decorating from August 2021. The applicant responded that he understood this point of view, but he had to consider whether it was necessary to ‘enter’ another course. He stated that he was looking at the cost of courses and whether the Department would approve his visa application. He stated that there was a lot of uncertainty at the time and he had to wait until a decision on his visa was made before he could decide whether to enrol in any courses.

17. As to his proposed length of time in Australia, the applicant stated that he arrived in Australia in 2019 to follow his wife, who was studying at the time. He stated that she was three months pregnant at the time and he was supporting her. Their daughter was born in Australia, so there was an initial period of time when he was supporting both his wife and daughter. He stated that his wife and daughter both returned to Vietnam in April 2021, so there will only be a period of a bit over three years that he will be away from his family. He stated that he wanted to return to Vietnam in November 2021, but found it difficult to book a flight then. He stated that he returned to Vietnam recently and only returned to Australia the day before the hearing. He stated that his role at Vinaco mainly involves policy, so he is not required in Vietnam for the day-to-day management tasks.

18. The Tribunal questioned the applicant about his reasons for wishing to undertake the proposed courses of study in Australia rather than Vietnam, and noted that he had provided no information about research into courses in Vietnam. The applicant stated that he had done his research, but the information about courses in Vietnam had not been passed on to the Department by his agent. He stated that you can do Masters and PhD courses in Vietnam. The Tribunal questioned whether the applicant had researched Painting and Decorating courses in Vietnam. The applicant responded that there are such courses in Vietnam, but he has chosen to study in Australia because the quality of education and teaching is excellent, and the work ethics are good. He stated that n Australian qualification will allow him to bring back knowledge and experience and he will be able to use it to promote his expertise. He stated that Australian qualifications are highly respected in Vietnam and can’t be competed with.

    Findings regarding the factors in Direction No.69

1. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account all the relevant information, the Tribunal is not satisfied that the applicant meets the genuine temporary entrant criterion.

   The applicant’s immigration history

2. The applicant arrived in Australia on 7 January 2019, holding a Student visa as a dependant of his wife. He was granted a second Student visa as a dependant on 20 April 2021. He claims that his wife and daughter both departed Australia in April 2021 and returned to Vietnam. The applicant remained in Australia, and on 25 August 2021 applied for the Student visa under review in respect of his enrolment in a Certificate III in Painting and Decorating and a Diploma of Leadership and Management, which would have extended his stay in Australia until at least July 2024.

3. The applicant gave evidence that prior to commencing the Certificate III in Painting and Decorating he commenced a three-month course in General English, although he did not complete it because it was run online and he preferred to study face-to-face.

4. A copy of the applicant’s enrolment record from the Provider Registration International Student Management System (PRISMS) database is on the Tribunal file, however I do not rely upon it because it contains information which is inconsistent with the evidence the applicant gave of his studies. For instance, the PRISMS record indicates that the applicant finished the General English course in June 2021, whereas the applicant gave evidence that he did not complete the course. The applicant’s PRISMS record indicates that he commenced the Certificate III in Painting and Decorating in September 2021 and ceased studying this course in February 2022, whereas the applicant gave evidence that he stopped studying this course in November 2021, after just over one month. He gave evidence that he did not enrol in or commence another course of study prior to the hearing. He provided CoEs for the Certificate III in Painting and Decorating, which was due to commence on 10 October 2022 and end on 26 November 2023, and the Diploma of Building and Construction starting on 15 January 2024 and ending on 1 June 2025. I accept the applicant’s evidence of his enrolment history in Australia.

5. While I have considered the applicant’s stated reasons for not continuing with the Certificate III in Painting and Decorating beyond November 2021, I do not consider that the applicant has provided a sufficient explanation for his failure to make greater progress with this course of study, and consider that his behaviour in ceasing his studies in November 2021 is not consistent with the behaviour to be expected of someone who genuinely wishes to remain in Australia temporarily for the purpose of study and progressing academically. I find that when the applicant was granted a Bridging visa in August 2021, no visa condition restricting him to three months of study was placed on the visa. While I accept that such a condition applied to his dependant Student visas, which limited his enrolment in English to no more than three months, there was no such restriction preventing him from continuing with his enrolment in the Certificate III in Painting and Decorating. I do not consider the applicant’s concerns about the uncertainty of his visa outcome or situation to be a sufficient reason for his decision not to proceed with the Certificate III in Painting and Decorating. I also do not accept any reasons relating to having to study online, given the applicant applied for the Student visa in August 2021, over 16 months after education providers moved to online study modes in response to the COVID-19 pandemic.

6. 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. The Tribunal has concerns that despite the applicant applying for the Student visa in August 2021, there is no evidence of progress in this course, and the applicant gave evidence that he ceased his studies in this course in November 2021. The applicant now proposes enrolling in the same course again, together with a Diploma of Building and Construction, which he plans to complete in June 2025, which will bring the applicant’s stay in Australia to approximately six-and-a-half-years. The Tribunal considers this is a reasonably lengthy period of time to remain in Australia on temporary Student and associated Bridging visas, particularly having regard to the applicant’s study and enrolment record in Australia to date, and has concerns that the Student visa may be used primarily for maintaining ongoing residence.

7. I do not make adverse findings regarding the remaining factors relating to the applicant’s immigration history. There is nothing to indicate that the applicant has not complied with the conditions of his visas in Australia. There is nothing to indicate that he has an adverse visa or migration history to any other country. There is nothing to suggest that he has previously been refused a visa application or had a visa cancelled or considered for cancellation. There is nothing to indicate that he has any other applications for a different class of visa which are yet to be finally determined. However, for the reasons provided above, I have concerns that the Student visa may be used primarily for maintaining ongoing residence. I give weight to the applicant’s circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia.

   The applicant’s circumstances in his home country

8. I accept that the applicant has personal ties to his home country. These include the presence of his wife and daughter, who returned to Vietnam in 2021, as well as the presence of his mother and extended family. I also accept that the applicant’s wife works for the UNFPA in Vietnam. I accept the applicant’s evidence that he is the Chairperson of Vinaco, a company in which he owns 60 per cent of the company’s capital. I accept that the applicant also owns properties in Vietnam and that he has both financial and personal ties to Vietnam which would serve as a significant incentive to return to his home country. I note that the absence of information regarding financial ties to Vietnam was a concern raised by the delegate, however I consider the applicant has now addressed this concern.

9. Given the applicant’s evidence of financial ties to Vietnam, I make no adverse findings regarding his economic circumstances.

10. While the applicant has not submitted any supporting evidence of his research into similar courses in his home country, on the basis of his oral evidence I am prepared to accept that he wishes to obtain Australian qualifications in Painting and Decorating and in Building and Construction because it will give him experience and knowledge which he may not gain through a similar qualification in Vietnam, particularly relating to sustainable materials used in Australia and safety practices. I am also prepared to accept that the applicant wishes to obtain an international qualification. I therefore make no adverse findings regarding clause 9(a) of Direction No 69.

11. I accept that there are no military service commitments which would present as a significant incentive for the applicant not to return to his home country. There is no evidence of civil or political issues that would act as an incentive for the applicant to remain in Australia. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Vietnam, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

    The applicant’s potential circumstances in Australia

12. I accept that the applicant’s wife and daughter no longer reside in Australia and that the applicant has no other family or strong personal ties to Australia. While the applicant gave evidence of previously running an export business which earned him approximately $50,000 in 2021, I accept that he no longer operates this business. While this business may have acted as an incentive for the applicant to remain in Australia in the past, there is evidence of such a business at present. There is also no evidence before the Tribunal of the applicant having any paid work at present in Australia. Although the applicant has indicated in his s.359(2) response that he worked for a painting company from June to August 2021, I accept his claim that he was no paid for this work and was merely following his friend to work so he could learn some skills. I therefore consider that at present there is no evidence that the applicant has ties to Australia which would act as a strong incentive for him to remain in Australia.

13. I make no adverse findings regarding the applicant’s knowledge of his proposed courses of study or of his education provider. There is also nothing to suggest the applicant has entered a relationship of concern. However, for the reasons noted above, I have concerns that the Student visa may be used to maintain ongoing residence and to circumvent the intentions of the migration programme.

    Value of the course to the applicant’s future

14. The applicant has a Bachelor degree from his home country, which is higher qualification than the vocational courses at the Certificate III and Diploma levels which he proposes undertaking. This raises some concerns about the value of his proposed studies to his future, however, I accept the applicant’s evidence that he is the Chairperson of a building and construction company, and that while he is currently involved in the strategic management of the company, he does not have working knowledge of the building industry and he would like to move into a more hands on management role, as well as be directly involved in managing building projects. I accept that the applicant has provided a reasonable explanation for the proposed study and that it reflects a career change that he has already made in Vietnam. I also accept that the proposed courses are relevant to his stated future plans. I also accept that gaining skills in Building and Construction may assist the applicant to expand his existing business or with future employment within this industry. I therefore make no adverse findings regarding the value of the course to the applicant’s future.

    Any other relevant matters and conclusion regarding findings

15. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.

16. While I accept that the proposed course of study will be of value to the applicant’s future, and that his circumstances in his home country are likely to act as an incentive to return to Vietnam, and there is little evidence of strong ties to Australia, I have serious concerns regarding the applicant’s enrolment history and his lack of progress with his proposed studies during his time in Australia. I do not find the applicant’s explanations for his enrolment history and his failure to make greater progress in completing his proposed qualifications to be sufficient. Given this history and the amount of time the applicant now proposes remaining in Australia to complete vocational qualifications, I have concerns that the Student visa may be used primarily to maintain ongoing residence.

17. 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).

18. 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.

19. 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

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

    Frank Russo
    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.