Peh (Migration)

Peh (Migration) [2022] AATA 3707 (16 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Zi Xin Peh
CASE NUMBER:  2005864
HOME AFFAIRS REFERENCE(S):          BCC2019/4969740
MEMBER:Peter Booth
DATE:16 August 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 August 2022 at 8:57am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolled after arriving on tourist visa – some completed courses as well as non-commencements, unsatisfactory course progress, cancellations and changes of subject area – two periods of non-enrolment – not enrolled when tribunal’s invitation to provide information sent – new enrolments in different subject area made with no explanation – no documentary evidence or clear career plan provided – no significant incentives to return to home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211(a), 500.212
CASE
Hasran v MIAC [2010] FCAFC 40
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 5 March 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 4 October 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant was not a genuine applicant for entry and stay as a student. For the reasons explained below, the issue now before the Tribunal is whether the applicant is enrolled in a course of study as required by cl 500.211(a).
On 6 October 2021 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide the following information in writing:
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:
· enrolled in a registered course of study; and
· a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below.
The invitation was sent to the last address provided in connection with the review and advised that, if information was not provided in writing by 20 October 2021 the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant did not provide the information requested within the period allowed. In these circumstances s 359C of the Act applies and pursuant to s 360(3) the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40.
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.
Does the applicant intend genuinely to stay in Australia temporarily?
The applicant waived his hearing rights so the Tribunal proceeded to consider the available evidence.
The applicant had provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2) of the Act.
In summary, the information provided by the applicant was as follows.
The applicant completed secondary education in Malaysia in 2015. The applicant did not disclose any employment history in Malaysia.
The applicant arrived in Australia on 11 September 2016 and since that time has returned to Malaysia on three occasions, in February 2018 for nine days, in January 2019 for 28 days and in January 2020 for two weeks.
The application for the student visa in question was made in October 2019. The applicant stated his visa history in Australia to be as follows: he held a “student visa 500” granted in December 2016. No other information was provided.
The applicant stated his study history in Australia to be as follows: he completed a general English course between February 2016 and March 2017 and a Certificate IV in Business between April 2017 and October 2017; he enrolled in a Diploma in Business in October 2017 but did not complete it; he enrolled again in a Certificate IV in Business in November 2017 but did not complete it; he completed a Diploma of Leadership between April 2019 and April 2020; and was “studying now” an Advanced Diploma of Leadership due to commence in April 2020 and be completed in October 2021.
The applicant did not provide any information regarding his Australian employment history.
The applicant stated that his father, mother and brother reside in Malaysia. His two sisters reside in Australia.
The applicant did not provide any information regarding ownership of assets in Malaysia.
As to his future employment plans the applicant stated:
As due to the Covid-19 pandemic, it is inconvenient for me to study online class, without any face to face classes. Hence, I was only able to complete a portion of course works for Advanced Leadership and Management for that semester. The college required me to complete all remaining course works, so my CoE have extended in order for me to complete all remaining course works. The courses of Leadership and Management will be able to prepare me to work when I return to Malaysia. I will be able to know how to handle crisis in a diplomatic way and also able to lead a team well with good communication with each other. I will return to my home country and work as a Supervisor and Team Leader to guide my team to work and ensure that my subordinates understand and happy of what they are doing when they are working.
As to his expected future remuneration the applicant stated: “As I obtained a qualified certificates from Australia, I have broaden my horizon in many different aspects, I will be able to receive RM3500-RM4000 per month for my salary.”
The applicant provided a variety of documents to the Tribunal. 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 confirmation of enrolment (COE) in respect of an Advanced Diploma of Leadership and Management scheduled to commence on 22 November 2021 and be completed on 22 May 2022 was provided. A letter dated 6 December 2021 from Metro Institute confirmed that the applicant was enrolled in an Advanced Diploma of Leadership and Management, having enrolled on 20 April 2020, and has completed five units in that course.
The applicant provided a statement to the Department in support of his application for review. The statement is unsigned, undated and without page numbers or paragraph numbers. It is in the following terms:
My name is Zi Xin Peh (DOB: [Date]), I come from Malaysia. I am learning Diploma and Advanced Diploma of Leadership and Management courses in Metro Institute, and I need to extend my student visa according to my COE. After I graduated from high school in Malaysia, I had a short period training job experience in a factory, which brings me an idea to be a business man in the future, so I choose to learn English and business course in Australia. From the business course, I have learned basic finance, marketing, human resource, business and management knowledge, and obtained skills on how to plan, organize, and operate a business. But also, I found the business knowledge is comprehensive but basic, if I hope to do management job, I’d better have a further study on management course. With consideration of building a more practical approach to my chosen career in the management position, I decided to transfer to study the major of leadership and management. I consulted with my friends and visited some colleges. After my research, I learned that Metro Institute is a good school with many international students. I went to visit the college and consulted with the teacher. She said they equip all students with a solid, comprehensive knowledge base on which we can receive advanced, systematic training in our respective disciplines, and are encouraged to exercise individual freedom of intellectual thought and curiosity. I can develop in consultation with industry professionals, and practical real-life case studies to get valuable experience with Australian business. It will equip me with a wide range of high-level skills such as team leadership and development, continuous improvement, marketing and innovation. This will be suitable for me to apply as I am determined to learn professional leadership and management skills. I am very glad to find that the course says the qualification provides a good pathway to work out my future. So I started my Diploma of Leadership and Management course in Metro since 22/04/2019, the course tell me how to manage myself and others effectively for business, from the course, I have learned to plan, design and apply business and project plans, and obtained communicational and motivational strategies and skills to support individuals and teams to meet organizational and enterprise requirements. Then I will go on learn Advanced Diploma of Leadership and management, and will finish my course in 17/10/2021. From the following course, I will continue expand my skills with an understanding of strategic planning and other business tactics. I will learn how to manage resources efficiently, how to shape, foster, and control organizational change, and how to create and sustain a culture of continuous improvement in the workplace. The core units including lead and manage organizational change, Develop and implement strategic plans, Provide leadership across the organization so on. On completion, I will be able to perform in management positions in a big company. My parents support my decision and are willing to provide enough money for my tuition fee and my living cost. Upon my graduation, I will go back to Malaysia and find an assistant manger job first to accumulate experience, and then step by step, I hope to promote to be a manager. I have reviewed the duty descriptions for a manager in Malaysia and they require skills in different fields, including marketing, accounting, managing relationship with stakeholders and customers, evaluating market opportunities and developing and managing strategic plans. I will gain hands-on experience and learn from teachers who are experts in their field after I graduate. I believe I will be qualified to be an expert manager in an international company in the future. Therefore, I hope that my visa extension could be granted.”
The statement 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. First, It makes no reference to the applicant’s poor study history. Secondly it does not mention any intention to study any courses after the completion of the leadership and management courses. Thirdly it does not refer to an intention to study project management. Lastly it does not contain any details of a clear and cogent career path.
In response to a request by the Department to provide more information the applicant provided a further statement. It is also unsigned, undated and without page or paragraph numbers. It is in the following terms:
I have received your notification about my study history in Australia and would like to explain about it. After I graduated from high school in Malaysia, I had a short period training job experience in a factory, which brings me an idea to be a business man in the future, so I choose to learn English and business course in Australia. I first finished my General English course in Times Academy, then I start to learn my package courses of CIV, Diploma and Advanced Diploma of Business in Warwick Institute of Australia, from the CIV of business course, I have learned basic finance, marketing, human resource, business and management knowledge, and obtained skills on how to plan, organize, and operate a business. But also, I found the business knowledge is comprehensive but basic, if I hope to do management job, I’d better have a further study on management course. With consideration of building a more practical approach to my chosen career in the management position, I decided to transfer to study the major of leadership and management. But at that time, when I chatted with the teacher in Skyline International College, he said CIV in business course is a very basic foundation course for me to learn Diploma of Leadership and management, and with his observation, he found my foundation is not very good, though I can start my diploma course, however, it may hard for me to catch the progress, in this case, I decided to learn CIV in Business course again, followed by Diploma of Leadership and management. During my course, I found I am not very suitable for this school, and would like to change a school, but my agent didn’t give my any information for a long time, so then, I got help from another agent, after my research, I learned that Metro Institute is a good school with many international students. I went to visit the college and consulted with the teacher. She said they equip all students with a solid, comprehensive knowledge base on which we can receive advanced, systematic training in our respective disciplines, and are encouraged to exercise individual freedom of intellectual thought and curiosity. I can develop in consultation with industry professionals, and practical real-life case studies to get valuable experience with Australian business. It will equip me with a wide range of high-level skills such as team leadership and development, continuous improvement, marketing and innovation. This will be suitable for me to apply as I am determined to learn professional leadership and management skills. I am very glad to find that the course says the qualification provides a good pathway to work out my future. So I started my Diploma of Leadership and Management course in Metro since 22/04/2019, the course tell me how to manage myself and others effectively for business, from the course, I have learned to plan, design and apply business and project plans, and obtained communicational and motivational strategies and skills to support individuals and teams to meet organizational and enterprise requirements. Then I will go on learn Advanced Diploma of Leadership and management, and will finish my course in 17/10/2021. From the following course, I will continue expand my skills with an understanding of strategic planning and other business tactics. I will learn how to manage resources efficiently, how to shape, foster, and control organizational change, and how to create and sustain a culture of continuous improvement in the workplace. The core units including lead and manage organizational change, Develop and implement strategic plans, Provide leadership across the organization so on. On completion, I will be able to perform in management positions in a big company. My parents support my decision and are willing to provide enough money for my tuition fee and my living cost. Upon my graduation, I will go back to Malaysia and find an assistant manger job first to accumulate experience, and then step by step, I hope to promote to be a manager. I have reviewed the duty descriptions for a manager in Malaysia and they require skills in different fields, including marketing, accounting, managing relationship with stakeholders and customers, evaluating market opportunities and developing and managing strategic plans. I will gain hands-on experience and learn from teachers who are experts in their field after I graduate. I believe I will be qualified to be an expert manager in an international company in the future. Therefore, I hope that my visa extension could be granted. Thank you for your kindly consideration.
The Tribunal observes that this statement does not mention any intention to study any other course after the completion of an Advanced Diploma of Leadership and Management. It does not refer to an intention to study project management. It does not provide any clear or cogent details of a career path.

Some further information can be gleaned from the delegate’s decision dated 5 March 2020. Among other things, the delegate stated that the applicant was unmarried and:
The applicant initially granted an Electronic Travel Authority (UD601) visa on 26/08/2016 and they arrived in Australia on 12/09/2016. Whilst onshore, the applicant was granted a Student (Class TU Subclass 500) visa on 01/12/2016 to study General English (Beginners to Advanced), Certificate IV in Business, Diploma of Business and Advanced Diploma of Business…
…
Information held by the department indicates that there is a gap in the applicant’s study history. Based on the information available, it appears that applicant, whilst being onshore, did not maintain enrolment and did not undertake any studies from 22/06/2018 to 21/04/2019. Excluding the time spent by the applicant outside Australia, there is a gap of approximately nine (9) months. The applicant had the opportunity to seek a deferral from their education provider if they were experiencing personal problems and could not study, or they could have departed Australia up until they were able to return to study. On 16/01/2020, the department invited the applicant to comment on this information.
On 31 May 2022 the Tribunal accessed the applicant’s record on the Provider Registration and International Student Management System (PRISMS). The purpose of this search was to ascertain whether the applicant was enrolled in a registered course of study, as required by cl 500.211(a), because there was insufficient evidence currently before the Tribunal about this. The PRISMS search results showed that the applicant did not hold a current COE in a registered course of study.
On 31 May 2022 the Tribunal wrote to the applicant pursuant to s 359A of the Act, inviting the applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review. The particulars of the information were that the applicant’s PRISMS record showed that he did not hold a current COE, which may lead the Tribunal to conclude that the applicant was not currently enrolled in a registered course of study and did not meet cl 500.211(a). The applicant was informed in the letter as follows:
The particulars of the information are:  The Department of Education, Skills, and Employment’s records show that you: o Enrolled in General English (Beginners to Advanced) which started on 12 December 2016 and ended on 17 March 2017 with Times Academy. The Certificate of Enrolment (‘COE’) is stated to be “Finished”. o Enrolled in a Certificate IV in Business which started on 10 April 2017 and ended on 8 October 2017 with Warwick Institute of Australia. The COE is stated to be “Finished”. o Enrolled in a Diploma of Business which started on 9 October 2017 and ended on 7 October 2018 with Warwick Institute of Australia. However, the COE was cancelled due to non-commencement of studies on 24 October 2017. O Enrolled in a Certificate IV in Business which started on 6 November 2017 and ended on 4 November 2018 with MG Australia Group (Skyline International College). However, the COE was cancelled due to unsatisfactory course progress on 21 June 2018. o Enrolled in an Advanced Diploma of Business which started on 8 October 2018 and ended on 6 October 2019 with Warwick Institute of Australia. However, the COE was cancelled due to non-commencement of studies on 24 October 2017. o Enrolled in a Diploma of Leadership and Management which started on 21 January 2019 and ended on 19 January 2020 with MG Australia Group (Skyline International College). However, the COE was cancelled due to noncommencement of studies on 21 June 2018. o Enrolled in a Certificate IV in Business which started on 8 April 2019 and ended on 5 April 2020 with Australian English Colleges (Bayside International College). However, the COE was cancelled due to non-commencement of studies on 19 March 2019. o Enrolled in a Diploma of Leadership and Management which started on 22 April 2019 and ended on 19 April 2020 with Australian Professional Education Group (Metro Institute). The COE is stated to be “Finished”. o Enrolled in an Advanced Diploma of Leadership and Management which started on 20 April 2020 and ended on 17 October 2021 with Australian Professional Education Group (Metro Institute). The COE is stated to be “Finished”. o Enrolled in an Advanced Diploma of Leadership and Management which started on 22 November 2021 and ends on 22 May 2022 with Australian Professional Education Group (Metro Institute). The COE is stated to be “Finished”. o Are currently not enrolled in any course of study.
The applicant was further informed as follows:
This information is relevant to the review because it indicates that you may not be a genuine applicant for entry and stay as a student and may be using the student visa program to prolong your stay in Australia and to circumvent the intention of the migration program. In particular, multiple instances of enrolling in the same course and having your COE cancelled due to non-commencement of studies and cessation of studies. If we rely on this information in making our decision, we may find that you are not a genuine applicant for entry and stay as a student and therefore you do not meet cl 500.211 or 500.212(a) which are a primary criteria for the grant of a student visa. This may be the reason, or part of the reasons, for the Tribunal affirming the decision not to grant you a student visa. You are invited to give comments on or respond to the above information in writing. Your comments or response should be received by 14 June 2022.
By email dated 14 June 2022 the applicant provided two documents to the Tribunal. First a letter from Metro Institute dated 3 June 2022 which stated that the applicant is currently a student enrolled in an Advanced Diploma of Leadership and Management. It also stated that the course commenced on 20 April 2020 and that he had completed 12 units. The Tribunal notes that this is inconsistent with the PRISMS information discussed above. The second document the applicant provided to the Tribunal was entitled ‘Respond Letter’ and it was addressed to the Department of Home Affairs. It is unsigned, undated and without page or paragraph numbers. The letter is in the following terms:
Referring to my COE that was cancelled due to non-commencement studies on 24th October 2017, I was preparing for applying the student visa from an agent in Malaysia. I had made all the payment and also provided all relevant documents to the agency staff and they told me that my visa had been submitted. However, when I was waiting for the further notice, I was informed the by the agent that my application was not approved. Then they cancelled my first COE and they suggested me to apply for the visitor visa instead. Therefore, I applied for a visitor visa in order to know more about the local colleges and the courses they provide. That is why I didn’t enrol in my study in the first time.
After that, my COE from with MG Australis Group (Skyline International College) was cancelled due to unsatisfactory course progress on 21 June 2018. During that period, I did not attend the class on time because I was really sick for a few months, which made me couldn’t attend the class to study. And I also didn’t check my mail on time, which made me miss the warning letters and finally my COE was cancelled once more.
In order to continue my study, I refer to a new agent to help me with the process of applying a new college. Payment has been made however, the agent did not apply any college for me and apparently the agent did not put my name on the COE instead they use other student name. I was cheated by the agent after payment has been made. Due to that reason, my COE was cancelled due to non-commencement of studies on 19 March 2019 from Australian English Colleges (Bayside International College).
I really hope to continue my study in Australia but even I myself can’t believe the unimaginable affairs I had met. Please kindly consider my student visa application so that I will be able to renew my visa and continue my study in Australia. I apologize for any inconveniences caused in this issue. I appreciate your assistance and consideration on this matter. Thank you.
The Tribunal makes several observations in relation to this letter. First the applicant has not provided any document to corroborate his assertions as to why enrolments were cancelled including correspondence with the agent in Malaysia, or about the illness which resulted in the cancellation of any further enrolment, and why the agent did not adequately apply for another enrolment. These are matters which could have been and should have been provided by the applicant in order to explain his extremely poor study history. Despite the invitation to do so by the Tribunal the applicant has chosen not to provide any corroborative material. This is given some weight. However, more importantly, the applicant did not address whether he is currently enrolled in a registered course of study.
By email dated 6 August 2022 the applicant provided two COEs. First in respect of a Diploma of Project Management scheduled to commence on 1 August 2022 and be completed on 30 July 2023 and secondly in respect of an Advanced Diploma of Program Management scheduled to commence on 7 August 2023 and be completed on 9 February 2025. Both COEs state that they were created on 5 August 2022. The email to which these documents were attached stated “This is my new COE”. No other explanation was provided. The Tribunal observes that the applicant has not explained why he chose to enrol in these subjects on 5 August 2022, why he has chosen to change the direction of his study, and the utility or relevance of these courses to his career path. These matters are given some weight.
CONCLUSIONS
Without diminishing the evidence, it can be summarised as follows.
The applicant completed secondary education in Malaysia. Other than a vague reference to employment the applicant has provided no details of his employment history in Malaysia. The applicant arrived in Australia as a tourist on 11 September 2016. The applicant applied for and was granted a student visa while onshore in December 2016. He has returned to Malaysia on three occasions since 2016. The application for the student visa in question was made on 4 October 2019.
His study history in Australia is quite poor as disclosed in the PRISMS search. He has completed a general English course, a Certificate IV in Business, a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management. He has enrolled in but not completed a Diploma of Business, another Certificate IV in Business (on two occasions), an Advanced Diploma in Business and a Diploma of Leadership and Management. The applicant was not enrolled during the period 22 June 2018 to 21 April 2019 and from 22 May 2022 until 5 August 2022.
He recently enrolled in a Diploma of Project Management and an Advanced Diploma of Program Management which will take until 9 February 2025, at least, to complete. Apparently these courses were enrolled in after receipt of a letter from the Tribunal which pointed out that he was not currently enrolled as at 31 May 2022.
The applicant has provided no evidence of ownership of any assets in Malaysia or of his employment history in Australia. Further, he has not provided evidence of a clear and cogent career path, explained the relevance of his current courses to a career path or explained why his existing skills and experience are insufficient to enable him to embark on his vague career path.
The applicant has not explained to the Tribunal’s satisfaction why he changed the purpose of his visit to Australia from tourism to study shortly after he arrived in Australia, why he has only returned to Malaysia on three occasions, why he has changed the direction of his study on several occasions, why he has enrolled in the same course on several occasions, why he has such a poor study history, why he did not return to Malaysia permanently after his recent student visa application was refused, and, as noted above, why he has not provided a clear and cogent career path or details of a career path, why his existing skills and experience are insufficient to enable him to embark on his vague career path and why he did not study for two significant periods of time.
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 Direction. The factors were used to weigh up the applicant’s circumstances as a whole in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from Malaysia. The applicant has provided evidence of direct family ties to his home country which act as an incentive to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to Malaysia, 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 Malaysia.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 11 September 2016 as the holder of a visitor visa valid to approximately 11 December 2016. He applied for a student visa while onshore and this was granted in December 2016. The proposed study would extend the applicant’s stay until at least February 2025. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa 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. First the applicant has not provided details of a clear and cogent career path. Secondly he has changed the direction of his study on numerous occasions. Thirdly he has not previously expressed a desire to study project management. His interest in project management seems to have arisen after he received a letter from the Tribunal observing that he was not currently enrolled in any course of study. Next he has not explained to the Tribunal’s satisfaction the relevance of his proposed courses of study to his vague career path. Lastly he has not explained to the Tribunal’s satisfaction why his existing skills and experience are insufficient to enable him to embark on his vague career plan.
The Tribunal observes that the applicant’s current study plan is inconsistent with his plans when he entered Australia.
On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has significant qualifications obtained in Australia. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.
The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant.
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 Malaysia and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to Malaysia. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to Malaysia.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 11 September 2016 the applicant has spent nearly 6 years in Australia and only returned to Malaysia on three occasions, he has provided no details of employment history in Malaysia, there is no evidence that he owns any assets in Malaysia, his two sisters reside in Australia and he intends to reside in Australia, if permitted, until at least February 2025, all of which indicates that he does not appear to have strong personal ties to Malaysia. On balance, the Tribunal assesses the applicant’s incentive to return to Malaysia to be minimal.
The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable him to achieve that goal. The applicant was granted a student visa which would have facilitated the applicant’s study in his desired field. However, having regard to the 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.
The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the evidence suggests that the applicant has enrolled in the present courses 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.
There is no evidence before the Tribunal regarding the following factors indicated by the Direction: economic circumstances of the applicant; any potential military service in Malaysia; political or civil unrest circumstances in Malaysia; remuneration the applicant could expect to receive in Malaysia or a third country compared with Australia; circumstances in Malaysia relative to Australia or any other country; and the applicant’s circumstances in Malaysia relative to others in that country.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION

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

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2022] AATA 3707

16 August 2022

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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