PRAPAWONG (Migration)

[2020] AATA 466

PRAPAWONG (Migration) [2020] AATA 466 (20 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Penthai PRAPAWONG

CASE NUMBER:  1822697

HOME AFFAIRS REFERENCE(S):          BCC2017/3485129

MEMBER:Penelope Hunter

DATE:20 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 20 February 2020 at 4:54pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – enrolment status – reasons for studying in Australia – declining academic results – outstanding legal proceedings in Thailand – strong family ties in Australia – migration history – arrived on a Visitor visa – deviation from the original stated plan of a short stay – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 16 July 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 September 2017. 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 (the Regulations) because the delegate was not satisfied that the applicant was a genuine temporary entrant.

4. For the following reasons the Tribunal considers that the decision under review should be affirmed.

   BACKGROUND

5. The applicant is an 18 year old Thai national, who arrived in Australia with his parents and sister on 25 June 2017 as the holder of a visitor visa. He applied for a Student visa in order to study a course of ELICOS (high school preparation) for 1 year. The applicant has nominated his father as to be his legal guardian while studying in Australia, and his father lodged a Student Guardian visa application for this purpose. Contemporaneously, the applicant’s sister also applied for a Student visa to undertake study in Australia, and the applicant’s mother has lodged a Student Guardian application connected to her visa application.

6. In a submission supporting the visa application the following information was provided the following information (in summary);

   i.He had recently graduated from junior high school at Princes Royal College Chang Mai, Thailand and together with his family had been searching for a suitable country to study at the high school level. They came to Australia for the purpose of seeking more information about education providers in Sydney.

   ii.As a family it was agreed that the applicant and his sister would enrol in a preparation course with the education provider MEGA.

   iii.His family believe that Australia is one of the best educational countries in the world. Sydney is the top cultural centre of Australia and it also ranked on the list of the most liveable cities in the world. He had always dreamed of studying abroad where he could practice English in his everyday life. He was hoping to see a huge development in his English language ability and academic skills, in order to have further study in high school and university in Australia.

   iv.His intention was study information technology and he believed that an Australian degree/qualification was valuable for his future career. He pictured himself working for an international company such as Apple or Microsoft and to do that he needed to focus on his English.

7. The delegate in their decision, a copy of which the applicant has submitted to the Tribunal, set out the following reasons for the refusal of the visa;

   i.The applicant had arrived with his immediate family, his parents and sister, in Australia as the holder of a Visitor visa on 25 June 2017 permitting a single entry for three months and had not departed Australia since. His incoming passenger card declared an intention of entry into Australia to be a stay of 14 days to visit friends or relatives.

   ii.At the same time the applicant lodged his Student visa application his sister also lodged an application intending to study in Australia. His sister had nominated his mother as her legal guardian. In effect the applicant’s entire immediate family were intending to remain in Australia for a 12 month period. The delegate had concerns that the applicant’s family was using the Student/Student Guardian visa program to obtain an extended stay in Australia for himself and his family for reasons other than furthering his education. The deviation from the original stated plan of a short stay and the timing of the Student visa application was found to be of concern.

   iii.The applicant had also not provided any evidence of his prior English study in Thailand. Although at the time of application the applicant was legally of school age, he had not enrolled in secondary education instead he had been removed from school to study English and would not resume secondary education for a significant time. The delegate had concerns about the applicant’s levels of prior education in English and was not satisfied that the general benefits of an international education in Australia were the primary motivation for his parents enrolling him in English studies in Australia.

   iv.The delegate also referred to the Student Guardian visa application of the applicant’s parents and placed weight on the fact that they intended to remain in Australia for a significant period, absent from their business interests in Thailand.

   Tribunal application

8. The Tribunal received an application for review from the applicant on 6 August 2018.

9. In support of the application the representative for the applicant submitted the following relevant documents (in summary);

   i.Transcript of academic record of Junior High School for the applicant in Thailand and letter of confirmation of study, dated 7 July 2017,  in the 10th grade at the Prince’s Royal College.

   ii.Confirmation of Enrolment (CoE) in a High School Preparation course with course dated from 30 October 2017 to 30 November 2018 at Macquarie Education Group Australia Pty Ltd (MEGA).

   iii.MEGA High School Preparation Progress Reports for the applicant dated 14 December 2017, 1 May 2018 and 30 July 2018.

   iv.Secondary School Agreement and letter of offer, Oxford College Sydney dated 4 February 2018.

   v.CoE for Junior Secondary (Year 10) Oxford College with course dated from 15 October 2018 to 21 December 2018.

   vi.CoE in a course of Senior Secondary at Oxford College with course dates from 30 April 2018 to 18 December 2019.

   vii.Certificate of Enrolment dated 20 September 2019 for the applicant in Senior Secondary Course (Years 10 -12) Oxford College Sydney, commencing 15 October 2018 and finishing 18 December 2020.

   viii.Year 11 2019, yearly report from Oxford College Sydney for the applicant, dated 27 September 2019.

   ix.Invoice for fees, Oxford College Sydney, dated 4 February 2019.

   x.Oxford College Sydney, Year 10 Student Report for the applicant 2019

   xi.Email dated 27 November 2019, from Tuition Protection Service (TPS) advising that Oxford College had closed.

10. The applicant appeared before the Tribunal on 11 December 2019 to give evidence and present arguments. The hearing was a combined hearing with the related applications, for review of his father, Mr Prakatkiat Prapawong[1], his mother, Miss Yuwadee Ampornaroon[2], and his sister, Miss Pareena Prapawong[3]. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicant was assisted in relation to the review by his registered migration agent who was present at the hearing.

    [1] Application number 1822695

    [2] Application number 1822691

    [3] Application number 1822687

11. Prior to the hearing, on 4 December 2019, the Tribunal had written to the applicant with certain information pursuant to s. 359A of the Act inviting comment. The applicant elected to comment in writing following the hearing by letter dated 17 December 2019. Included with the letter were an ASIC Business Name extract for the business Australian Thai Massage College,  letter from Australian Thai Massage College dated 7 October 2019 and course enrolment form.

12. On 24 December 2019, the Tribunal received a submission from the agent of the applicant advising that he was intending to pursue studies in TAFE and enclosing a copy of an unsigned and undated TAFE NSW International Student Application form partially completed on behalf of the applicant.

13. On 3 January 2020, the Tribunal received a copy of an email from TAFE NSW to the applicant’s education agent confirming receipt of an application form and requesting further details from the applicant.

14. On 6 January 2020, the Tribunal received a copy of a letter of offer addressed to the applicant for study at TAFE NSW in a Certificate IV in Design, a Diploma of Interior Design and Decoration and Design (Interior Design) Bachelor Degree with course dates from 3 February 2020 to 30 November 2024.

15. On 11 February 2020, the Tribunal received a further submission from the applicant’s agent advising the applicant was working with his education agent to enrol in a course and providing several attachments including;

    i.A copy of a TAFE NSW letter of offer dated 31 January 2020, expiring on 17 February 2020, for enrolment in several courses including General English, English for Academic Purposes, Design Fundamentals Certificate III, Design (Multi Disciplines) Certificate IV, Interior Design and Decoration (Diploma) with course dates from 16 March 2020 to 30 December 2022.

    ii.TAFE Statement/Tax Invoice for course fees dated 21 February 2020

    iii.TAFE International Payment Options form

    iv.TAFE International Bank Account details for offshore remittance form

    v.TAFE NSW letter of offer issued to the applicant on 31 January 2020, and expiring 26 December 2022, for enrolment in a Design (interior Design) Bachelor Degree with course dates from 6 February 2023 to 30 November 2025.

    vi.Receipt for the transfer of 184,050 Thai Baht to the applicant in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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 satisfies cl. 500.212.

17. 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?

18. 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.

19. 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.

20. The Tribunal acknowledges that the applicant has undertaken some study while in Australia, and this is the general expectation of all applicants in Australia while holding a Student visa. The Tribunal had difficulty reconciling aspects of the applicant’s evidence and that of his family, and after carefully considering the material before it, against all the factors specified in Direction 69, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several reasons as outlined below.

21. The applicant has not provided evidence to the Tribunal that he is currently enrolled in a course of study. At the time of the Tribunal hearing the applicant’s previous education provider, Oxford College Sydney, had ceased operation from 27 November 2019. The Tribunal accepts that this was outside the control of the applicant. However, at the hearing the applicant, his parents and representative were clearly advised of the requirement for the grant of a Student visa, pursuant to cl. 500.211 of Schedule 2 to the Regulations, that at the time of decision the applicant is enrolled in a course of study. The evidence presented was that the applicant wished to continue studies in Australia and he was actively seeking further enrolment. The applicant was granted leave to provide to the Tribunal by 21 January 2020, evidence of enrolment in a course of study and the Tribunal specifically directed that an offer of enrolment was not sufficient for the purposes of cl.500.211. The applicant was also informed he could seek extra time, however no request has been received. It is further noted that the applicant’s last submitted offer of enrolment expired on 17 February 2020.

22. In addition, the Tribunal is not satisfied that the applicant has reasonable reasons for not undertaking study in his home country. It was claimed by the applicant that study in Australia would provide him with a better advantage for his future in Thailand, yet the Tribunal is not satisfied that it has been a better educational outcome for the applicant. The applicant was enrolled in a private secondary school, the Princes Royal College, in Thailand. The academic report that he has submitted to the Tribunal for his junior secondary study records good progress and a 79.5 grade point average, which the applicant acknowledged at the hearing was a good academic result. When he came to Australia, the applicant did not resume secondary studies immediately in Australia, he spent a year undertaking high school preparatory courses in English at MEGA. This delayed his high school completion by a year.    Then the school report submitted by the applicant from Oxford College records lower academic results. The applicant conceded in his evidence at the hearing, and in post hearing submissions, that his performance had declined. In written submissions to the Tribunal the applicant suggested his results had been slipping due to the language barrier. However, his final report for Year 11 records English as one of his better subjects, his performance in Maths, Business Studies and CAFS, records D rankings overall for grades, effort, organisation and participation. It does not appear that his academic skills have improved under the Australian education system.  Also, the education provider enrolled in by the applicant has subsequently closed operation and the applicant has only studied to the year 11 level and now appears to be proposing TAFE studies. The outcome for the applicant appears that he has been unable to complete a secondary education. From the offer of enrolment submitted the package of courses will lead, if he continues to study for the next 6 years to a TAFE bachelor degree in Design. This is different  to just 12 months study proposed with the original visa application and to a university education in Information Technology and working for an international company as originally envisaged by the applicant. On the material before it the Tribunal is not satisfied that the applicant would not reasonably have completed high school and had an opportunity for a university education in his own country.

23. It is conceded that the applicant has extended family in Thailand. This includes his uncles and aunts, cousins and grandparents. The Tribunal must weight this with the fact that his immediate family in the form of his father, mother and sister have accompanied him to Australia and sought visas to remain. In addition, from the latest offers of enrolment submitted the applicant is proposing a program of study that would see him remain onshore until 2025, approximately eight years.

24. It is submitted that the applicant’s family have considerable assets in Thailand. The Tribunal accepts that the applicant’s mother’s family has several properties and that there is possibly a family trust. It is claimed that trust property included the former home of the applicant and his family and there are several family businesses. The applicant has submitted evidence of cash transfers for the support of his parents, his sister and himself from relatives in Thailand. The applicant has no property or assets of his own in Thailand, which is reflective of the fact that he was a minor at the time of his departure. It is also accepted that his parents formerly has interests in businesses in Thailand. Relative to others in his country, it is accepted that the applicant enjoyed comfortable economic circumstances in his home country.

25. The Tribunal notes that Malaysia does not have compulsory military service obligations that may affect the applicant. There is also no evidence of any events of civil or political unrest that would induce the applicant or his family to apply for a Student visa. However, there is information contained upon the Department file for the applicant’s father which indicated that the family may have been motivated to depart Thailand to avoid legal proceedings. The Tribunal wrote to the applicant on 4 December 2019 pursuant to the provisions of s. 359A of the Act with particulars of the information which was that the Department had received information that Ms Yuwadee Ampornaroon, on 4 July 2017 was found guilty of an offence under the Cheque Act, and an arrest warrant was issued by Chiang Mai District Court, arising from three offences in proceedings number Jor.344/2560, Jor.345/2560 and Jor.346/2560 for her to be delivered to Mueang Police Station for further prosecution. The applicant was informed that the information was considered relevant as it indicated that his family had serious outstanding legal proceedings in Thailand. The applicant was invited to comment on the documents at the Tribunal hearing, and confirmed that he would respond in writing. In his response received 17 December 2019, the applicant acknowledged that his mother had some debts in Thailand, and claimed that from his knowledge she was in mediation with the other party, her brother was in charge of the negotiation and makes some repayment arrangement. The Tribunal has considered this response, it notes that the applicant has not disputed the validity of the arrest warrants or court proceedings. There is also no evidence to support that there is a mediated outcome to the dispute. The Tribunal has no other evidence to corroborate this submission. It appears to the Tribunal that these proceedings may present a significant incentive for the applicant and his family not to return to Thailand.

1. The Tribunal has also considered the applicant’s ties in Australia, and as mentioned above he is residing with his entire immediate family in Australia. From the offers of enrolment submitted it appears he is intending to remain in Australia until at least 2025. His younger sister is also intending to undertake post-secondary study in Australia and remain onshore for a similar period. It also appeared to the Tribunal that the applicant’s parents had the intention to remain onshore for a considerable time. At the hearing on 11 December 2019, the applicant’s father said that as the applicant was now 18, he intended to return to Thailand once the visa had been granted. This information was considered inconsistent information to evidence that had been presented by Mr Prakatkiat Prapawong, at an earlier Tribunal hearing before the member on 26 September 2019. Although his matter was not listed for hearing on this occasion the Tribunal further notes that the applicant was present at that hearing. Pursuant to the provisions of s.359AA of the Act, the Tribunal put to the applicant for comment the information that at the hearing on 26 September 2019, Mr Prakatkiat Prapawong had stated that he only intended to return to Thailand once both of his children had finished a Bachelor degree and did not dispute the calculations of the Tribunal that this would be approximately eight years. The applicant was further advised that the information was important as it was inconsistent with the earlier evidence which may cause the Tribunal to have doubts about the credibility of his father’s claim that he intended to return, and also that the Tribunal may rely upon it as indicating the family were using the student visa system as a means for remaining in Australia indefinitely. The applicant elected to respond immediately and indicated that he did not think that his family were using himself or his sister as a means to stay in Australia. He later provided a submission in writing that he believed that his father would return and considered his earlier evidence may have been due to nerves. The Tribunal has considered these explanations however, Mr Prakatkiat Prapawong’s evidence at the first hearing was clarified several times. Although Mr Prakatkiat Prapawong claims he no longer wishes a Student Guardian visa and intends to return to Thailand, he has not withdrawn his application. It appeared to the Tribunal that the Student visa and Student Guardian visa were proposed to be used as a means to maintain ongoing residence for the family for several years.

2. Other than his immediate family there is no evidence that the applicant has any other family ties in Australia. The applicant is living in an apartment in Ashfield which is next to an apartment in which a friend of his father resides. The applicant claims not to be working in Australia, and there is no evidence to refute this. The applicant’s parents also claimed not to be working in Australia. In this regard the Tribunal has greater concerns due to information contained on the Departmental file of the applicant’s father. In the letter of 4 December 2019, the Tribunal wrote to the applicant regarding this information pursuant to s. 359A of the Act. The applicant was advised of the following particulars and their relevance;

   i.The Department had received information that his parent’s Miss Yuwadee Ampornaroon and Mr Prakatkiat Prapawong had opened a massage parlour named ATMC (Australian Thai Massage College) or Guru Massage located at 338 Parramatta Road, Burwood and that they were using this as a place to work. Photographs his parents submitted to the Department at the premises were also provided. The applicant was advised that the information was relevant because Departmental records indicated that the bridging visas held by his parents were subject to condition 8101, which did not permit them to engage in work.

   ii.The Department had received information, purporting to be records of wages for employment of your parents at ATMC (Australian Thai Massage College) or Guru Massage located at 338 Parramatta Road, Burwood, a copy of which was enclosed. The applicant was further informed the information was relevant because at the hearing of the related applications of his parents[4] on 26 September 2019, Ms  Yuwadee Ampornaroon and Mr Prakatkiat Prapawong gave evidence that they had undertaken a massage course at this premises, and following the hearing they submitted a letter from Australian Thai Massage College dated 7 October 2019, stating that they attended a Traditional Thai Massage Course from 4 September 2017 to 20 October 2017. The applicant was further advised that if the information was relied upon it may find the evidence by his parents was unreliable as the wage records relate to payments made from 24 to 30 July 2017.

   iii.In relation to applications 1822695 and 1822691, the applicants parents submitted letters from Australian Thai Massage College (ABN 9441 4260 405) dated 7 October 2019, stating that they attended a Traditional Thai Massage Course from 4 September 2017 to 20 October 2017. A search by the Tribunal has revealed that the ABN number provided is not a valid ABN and the applicant was sent a copy of the relevant search. The applicant was further advised that if it relied on the information the Tribunal 1822695 and 1822691may find that the letters of support from Australian Thai Massage College were not reliable.

   The Tribunal provided the applicant an opportunity to respond to the information at the hearing on 11 December 2019, however he indicated that wished to wait to respond in writing.  In his submission of 17 December 2019, the applicant claimed that he had no knowledge if his parents were working, from what he knew they took some courses. The applicant also submitted an updated letter from Australian Thai Massage College, dated 7 October 2019 (ABN 6594 4885 1951) and an ASIC Business Name Search Australian Thai Massage. The applicant’s claim that he had no knowledge is a less than satisfactory rebuttal to the information and the photographs which depict his parents engaging in massage at the premises. It also did not answer the information regarding the wage records and there is no explanation for the incorrect ABN on the initial reference letter submitted by Australian Thai Massage College. The Tribunal also notes that the address of the business name holder is the same residential address for the applicant and his family as set out in the visa application. In assessing the information overall, the Tribunal considered that the applicant’s parents were not just in Australia to provide care and support for the applicant and his sister while they engaged in study and that they may have other economic motivations to remain onshore. There were also concerns that his parents may be using the Student/Student Guardian visa program to circumvent the intentions of the migration program.

   [4] Applications 1822695 and 1822691

3. The applicant has also not demonstrated to the satisfaction of the Tribunal the value of his proposed course to his future. The applicant indicated in his initial visa submissions that he intended to complete secondary education, and undertake university study in Information Technology. His proposed offers of enrolment do not include the completion of secondary studies, he is now proposing a study pathway in Interior Design not Information Technology through a Vocational Education and Training course. The Tribunal acknowledges that it should allow for reasonable changes to career or study pathways, but other than the event of his former education provider ceasing operation the applicant has provide no explanation for this change of pathway or the value of his proposed studies in his home country. The Tribunal is just left with the general submission that overseas education is viewed as desirable and that English speaking is an advantage. Although it is acknowledged that the applicant had only previously studied at the secondary level, there was no previous study in art or design, recorded in his academic transcripts and the applicant had not provided any submissions regarding the relevance of his course for proposed future employment.

4. With respect to the applicant’s migration history, the Tribunal accepts that there is no evidence that the applicant has previously been refused a visa, had a visa considered for refusal or cancellation. There is no evidence that the applicant himself has failed to comply with visa conditions. The Tribunal does note however the information contained in the decision of the delegate that the applicant that the applicant had arrived in Australia as the holder of a Visitor visa permitting a single entry for three months and had not departed Australia since. Further that the incoming passenger card for the applicant and other members of his family declared an intention of entry into Australia to be a stay of 14 days to visit friends or relatives. This deviation from the stated two week visit was a further indication that the applicant and his family may be using the Student/ Student Guardian visa program to circumvent the intentions of Australia’s migration program. The applicant made submissions in writing in a statement to the Tribunal that this two week period was all they intended to stay initially. The Tribunal does not accept that this was a spur of the moment decision. The letter from Princes Royal College regarding the applicant’s study was dated 7 June 2017, prior to his arrival in Australia. It appears that documents relevant for the applicant to study in Australia had been obtained prior to his departure from Thailand. In his statement accompanying the visa application the applicant sets out that they came to Australia to seek information on education providers. In addition, arrangements were made for others to look after his parents’ business interests. The Tribunal has considered the submission that the family were guided by education agents. However, the Tribunal was not satisfied that the family ever genuinely intended just a short stay in Australia and their original visa application, and their subsequent application for study for just a 12 month period, lacked transparency, when clearly years of study was intended.

5. The Tribunal has carefully considered and weighed the relevant factors, overall it finds that the concerns raised above lead the Tribunal to not be satisfied that he genuine in his reasons for studying in Australia and why he wishes to undertake his proposed further five year course of study. Rather, it is of the view he is using the student visa program to maintain residence in Australia. In making this decision the Tribunal has had regard to the applicant’s ties to his home country including his family and their assets, his youth and previous study in Australia. However, these matters do not outweigh on balance the Tribunal’s concerns.

6. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters particularly relevant to the associated applications by his family that the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

7. 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.

8. 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

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

   Penelope Hunter
   Member

   
   

   Attachment – Direction No.69

   DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

   (Section 499)

   I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

   Dated: 18 April 2016

   Peter Dutton

   
   

   Minister for Immigration and Border Protection

   Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

   Part 1 of Direction No. 69 - Preliminary

   Name of Direction

   This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

   It may be cited as Direction No. 69.

   Commencement

   This Direction commences on 1 July 2016.

   Interpretation

   Act means the Migration Act 1958.

   Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

   Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

   Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

   Regulations mean the Migration Regulations 1994.

   Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

   Spouse has the same meaning as the definition of the term in section 5F of the Act.

   Student visa means a Subclass 500 (Student) visa

   Student Guardian visa means a Subclass 590 (Student Guardian) visa.

   Application

   This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

   This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

   The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

   Preamble

   The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

   An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

   The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   a.the applicant’s circumstances; and

   b.the applicant’s immigration history; and

   c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

   d.any other relevant matter.

   This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

   Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

   Part 2 of Direction No. 69 - Directions

   Assessing the genuine temporary entrant criterion

   1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

   2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

   a.considering the applicant against all factors specified in this Direction; and

   b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

   3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

   4.Circumstances where further scrutiny may be appropriate include but are not limited to:

   a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

   b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

   c.the applicant intends to study in a field unrelated to their previous studies or employment; and

   d.apparent inconsistencies in information provided by the applicant in their Student visa application.

   5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

   The applicant’s circumstances

   6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

   7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

   8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

   The applicant’s circumstances in their home country

   9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

   a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

   b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

   c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

   d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

   e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

   10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

   The applicant’s potential circumstances in Australia

   11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

   a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

   b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

   c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

   dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

   e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

   Value of the course to the applicant’s future

   12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

   a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

   b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

   c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

   The applicant's immigration history

   13.An applicant’s immigration history refers both to their visa and travel history.

   14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

   a.Previous visa applications for Australia or other countries, including:

   i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

   ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

   b.Previous travels to Australia or other countries, including:

   i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

   ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

   iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

   iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

   If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

   15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

   Any other relevant matters

   16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.