Ruan (Migration)

Ruan (Migration) [2022] AATA 3580 (5 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Qisheng Ruan
REPRESENTATIVE:  Mrs Linda Cao (MARN: 1806917)
CASE NUMBER:  1936558
HOME AFFAIRS REFERENCE(S):          BCC2019/5686217
MEMBER:Frank Russo
DATE:5 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 5 August 2022 at 5:48pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– applicant failed to provide the information within the prescribed period – applicant was not a genuine applicant for entry and stay as a student – change in career pathway– applicant has not demonstrated the value of the proposed courses to future– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, Schedule 2, cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40

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 11 December 2019 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 11 November 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 in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The applicant is a 30-year-old Chinese national. The applicant first arrived in Australia in 2012 and has completed and awarded a Bachelor of Commerce from Griffith University and a Master of Finance from RMIT. At the time he applied for the Student visa under review, the applicant was enrolled in an Advanced Diploma of Translating at Frontier Leadership. At the time of this decision the applicant had completed the Advanced Diploma of Translating as well as a Diploma of Interpreting and is enrolled in a Diploma of Hospitality Management.
The applicant was assisted in relation to the review.
On 30 June 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting him to provide information in writing about the course(s) of study he is undertaking and his entry and stay in Australia as a student.
The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 14 July 2021, or within any extended time as requested and granted, 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 review applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
On 5 April 2023 the Tribunal invited the applicant under s.359A of the Act to comment or respond in writing to information from his enrolment record in the Provider Registration International Student Management System (PRISMS) database, further details of which are set out in the reasons below. The applicant requested an extension of time to comment or respond to the information put to him under s.359A, which was granted by the Tribunal. The applicant provided a response on 3 May 2022, which also included information in response to the Tribunal’s s.359(2) invitation from June the previous year, including a completed ‘Request for Student Visa Information’ form.
Given the applicant is no longer entitled to appear before the Tribunal, the Tribunal has proceeded to a decision on the information before it.
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 applicant for entry and stay as a student.
In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with the following other documents on 30 December 2019:
a.An undated statement from the applicant;
b.Copy of the photograph pages from the applicant’s Chinese passport;
c.A Form 956, appointing an authorised representative;
d.Copy of Chinese identity card;
e.Award of the Master of Finance by RMIT on 13 December 2017 and an academic transcript issued for this course on 18 December 2017;
f.Applicant’s resume;
g.Bank statement from an Australian bank; and
h.Letter from Frontier Education, dated 16 December 2019, confirming the payment of fees and satisfactory course progress.
As noted above, the applicant did not respond within the timeframe for response to a s.359(2) invitation sent by the Tribunal on 30 June 2021.
On 5 April 2022 the Tribunal invited the applicant to comment or respond to information contained within his PRISMS enrolment record. In his response, he provided the following additional documents:
a.A completed ‘Request for Student Visa Information’ form;
b.Letter of Reach Community College, dated 26 April 2022, regarding the applicant’s attendance and academic progress in the Diploma of Hospitality Management; and
c.A separate email from his agent, which also attached the above letter of Reach Community College, and which included additional comments from the applicant within the body of the email.
The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file, in particular to the undated genuine temporary entrant (GTE) statement provided to the Department.
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.
As noted above, the applicant is a 30-year-old Chinese national. According to information he provided in the completed ‘Request for Student Visa Information’ form, the applicant first arrived in Australia on 1 May 2012. Despite completing this form, the applicant did not provide the details of any education received in China. The applicant confirms in the information provided that since arriving in Australia he has completed A Bachelor of Commerce, a Master of Finance and an Advanced Diploma of Translating. He indicates that he has a current enrolment in the Diploma of Hospitality Management at Reach Community College, which he commenced in August 2021 and plans to complete in August 2022.
On 5 April 2022 the Tribunal wrote to the applicant using the procedure set out in s.359A of the Act, inviting him to comment or respond in writing to information in his PRISMS enrolment record which, subject to his comments or response, the Tribunal considered could be the reason or part of the reason for affirming the decision under review. In its letter, the Tribunal noted that the information indicated that the applicant had completed a Bachelor of Commerce in 2015 and a Master of Commerce in 2017. He was enrolled in the Advanced Diploma of Translating from 11 November 2019 to 8 November 2020. He was then enrolled in a Diploma of Interpreting (LOTE-English) from 25 January 2021 to 25 July 2021. He is currently enrolled in the Diploma of Hospitality Management, which commenced on 23 August 2021 and is due to end on 19 August 2022.
The Tribunal put to the applicant that the above information about his enrolment history may be relevant because it may indicate that he has completed the course of study which was the subject of the Student visa application (namely, the Advanced Diploma of Translating) and has since enrolled in two further Diploma courses. The Tribunal also put to the applicant that his current enrolment in the Diploma of Hospitality Management is a vocational level course below his existing qualifications at the Bachelor and Masters degree levels, as well as below the Advanced Diploma of Translating. The Tribunal also put to the applicant that his current enrolment in Hospitality Management may be unrelated to his previous studies in Commerce/Finance and Translating/Interpreting, and that each of these particulars of information raise concerns that the applicant may be using the Student visa program to maintain ongoing residence.
In response, the applicant provided the completed ‘Request for Student Visa Information’ form, in which he provides the following information under ‘Information about current and proposed courses of study’:
After I graduate from the Natti (sic) course it was the worst time of Covid-19 spreading. I felt it was not good time for overseas travelling, so I decided to stay a bit longer until the situation getting better.
As I studied in Tasmania and was very impressed by the nature beauty of TAS, I got further interest in the tourism and hospitality industry over here.
Despite my education background, it’s always a good idea to get more knowledge and skills to have broader employment opportunities, no matter in China or in Australia.
I enrolled the hospitality course and very enjoyed it. I have finished most of the work for my hospitality course, and will finish the course in August 2022, which is around the corner.
I don’t have plan to have any further study in Australia. As soon as I got the diploma I’ll arrange my trip back to China.
Under ‘Information about future plans’, the applicant states, ‘As soon as I got the diploma I’ll arrange my trip back to China. I will seek job in accounting sector in hospitality industry’. The applicant has not provided any other information within the body of this form about his reasons for now wishing to the Diploma of Hospitality Management, nor does he respond directly to the concerns put to him by the Tribunal in the s.359A letter.
In addition to the ‘Request for Student Visa Information’ form, the applicant provided the Tribunal with a course progress letter from Reach Community College, as well as a statement within the body of an email from his agent. The statement provided by the applicant is identical to the one extracted above from the ‘Request for Student Visa Information’ form, with the addition of one further statement: ‘My only request now is to finish the current course which will end in Aug this year.’
I have also had regard to the statement which the applicant provided to the Tribunal with his application for review. In this statement the applicant states that he considered he should have been competitive in the Chinese job market after studying for over five years in Australia and obtaining Bachelor and Masters degrees from renowned research universities. He returned to his hometown in China in 2017 and sought finance-related roles, but he found the competition in the employment market was fierce and it took him nearly half a year to secure a job as staff accountant with Ernst & Young. He claims that sometimes his managers were not satisfied with his job performance, and he came to realise that the pressure was the result of his employer’s higher expectations of him as a result of his years of study in Australia. His employer assumed he should take on more responsibilities, outperform his peers in the company and he was sometimes delegated tasks which went beyond his role, such as drafting strategic plans. He did not perform well in these tasks and this caused him to reconsider his career plans.
The applicant claims that he has never had training in English language translation or practical training in linguistic study. He claims that while he is equipped with foundation skills in accounting, he needs to improve his mastery of English in order to prepare strategic documents, conduct business negotiations and give public presentations. He claims that the best way to learn a language is to study within the country and to ‘fully emerge’ into the environment. He claims that after careful research of potential courses, he decided to study a one-year Advanced Diploma of Translating, which will grant him NAATI accreditation. The applicant provides further information his reasons for choosing to study at Frontier Education and in Tasmania. He provides other information, including his motivations to return to China after completing the proposed course of study, as well as information about compliance with the conditions of previous visas he has held.
I have also had regard to the GTE statement which the applicant provided to the Department with his visa application. In this document, the applicant provides information similar to that contained in his statement to the Tribunal. He also states that during his employment in China in 2017 he came to realise that the main reason he experienced difficulties was because he lacks ‘understanding of professional English texts and comprehensive English.’ He believes his skills in this area need improving in order to make him more competitive in the workplace in China. He states that the Advanced Diploma of Translating at Frontier will be suitable for improving his professional language skills and ‘aiming to prepare learners to translate specific texts on professional purpose.’ He provides information on his reasons for choosing to study in Australia, as well as for choosing the proposed course and education provider. He claims that after graduating from Frontier Education he plans to return to China to find an accounting or audit job in an international firm or reapply for a role at Ernst & Young. He claims that with translating skills he will be more confident and efficient in his job and after working for a year he will apply for promotion.
Findings
As noted above, the applicant did not respond to the Tribunal’s s.359(2) invitation within the timeframe provided by the Tribunal. The applicant instead provided information in the ‘Request for Student Visa Information’ form over 10 months after the deadline specified by the Tribunal. I have nevertheless had regard to the information provided where it is relevant to consideration of the applicant’s circumstances. I note again that the Tribunal invited the applicant to respond to adverse information from his PRISMS enrolment record. While the applicant responded following a request for further time, I note that the applicant did not respond directly to the concerns raised by the Tribunal. While the applicant provided some information about his reasons for enrolling in the Diploma of Hospitality Management, overall his responses lacked sufficient detail to address the concerns of the Tribunal.
The applicant’s circumstances in his home country
I have had regard to the applicant’s stated reasons for wishing to study the Advanced Diploma of Translating in Australia, which he has set out in his GTE statement to the Department and the statement he provided to the Tribunal. While I acknowledge these reasons, the applicant is currently enrolled in a Diploma of Hospitality Management and has provided very little information as to his reasons for not undertaking the study in his home country or whether similar courses are available there. In the completed ‘Request for Student Visa Information’ form, the applicant states that he was stuck in Australia due to COVID-19 when he finished his ‘NAATI course’ and it was not a good time to travel, so he decided to stay in Australia a bit longer. He became interested in tourism and hospitality because he was living in Tasmania and was impressed by the natural beauty. He believes it’s a good idea to get more knowledge and skills to broaden your employment opportunities.
I find the applicant has not provided any evidence that he has researched whether similar courses are available in China. While I have taken into account the applicant’s claim that he was stuck in Australia due to COVID-19 and give this some weight, having considered the evidence as a whole, including the lack of convincing reasons for his interest in Hospitality Management, I do not accept that the applicant has provided a reasonable explanation for not undertaking his current study in his home country. Having considered the evidence as a whole I do not consider the applicant has established reasonable motives for studying his current course in Australia.
As to the applicant’s personal ties to his home country, I accept that the applicant’s parents are in China. I accept his claims in his statement to the Tribunal that he is an only child and that it is his responsibility to take care of his parents when they are old, and therefore the presence of his family in China acts as a significant incentive to return to his home country. I have also considered the applicant’s return to China in 2018, including his work with Ernst & Young from October 2018 to April 2019. The applicant has provided the Department with a letter verifying this employment. I consider that this employment is relatively recent and related to the Bachelor and Masters degree qualifications which the applicant gained in Australia.

The applicant has not provided the details of any employment in Australia in the ‘Request for Student Visa Information’ form, other than listing his work with Ernst & Young, which was in China rather than Australia. In the resume which he provided to the Tribunal, he lists an internship as an accounting assistant from February 2017 to February 2018, but has not listed any paid employment other than his work in China. There is no other evidence to suggest the applicant has been employed in Australia. I make no adverse findings regarding the economic circumstances of the applicant, nor any findings that they would present as a significant incentive for the applicant not to return to his home country.
There is no evidence of any civil or political issues that would act as an incentive for the applicant to remain in Australia. There is no evidence of any military service requirements. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in China, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.
The applicant’s potential circumstances in Australia
There is no evidence that the applicant has any family or community ties in Australia. There is nothing to indicate that he is in a relationship or to suggest that he has entered a relationship of concern.
As noted above, the Tribunal used the procedure in s.359A of the Act to put to the applicant concern that he completed the Advanced Diploma of Translating in November 2020. Despite the claims made in his statements to the Department and the Tribunal that he intended to return to China once he completed this course, his PRISMS record indicates that he then enrolled in a Diploma of Interpreting and he has now enrolled in a Diploma of Hospitality Management, extending his stay in Australia by approximately 18 months. In his response, the applicant gave only a very brief explanation for his decision to now study Hospitality Management. He claims that he was trapped because of COVID-19 and claims that he gained an interest in tourism and hospitality because he was impressed by the natural beauty of Tasmania.
While I have taken these statements into account, I find the applicant has not provided a sufficiently detailed or convincing explanation for his decision to now enrol in Hospitality Management. I have taken into account the evidence the applicant has provided of his continued progress with the Diploma of Hospitality Management, including the letter from Reach Community College regarding his attendance and academic progress. However, having considered the evidence as a while, including my findings about the value of the course and the applicant’s educational history, I have concerns that the applicant has enrolled in the Diploma of Hospitality Management not for his stated reasons, but to obtain a successful visa outcome and to maintain ongoing residence in Australia. The applicant’s visa and educational history indicate that the applicant may be using the Student visa programme to circumvent the intentions of the migration program.
The applicant first arrived in Australia in May 2012. He has completed the majority of the requirements for the Diploma of Hospitality Management, therefore I make no adverse findings regarding the factors contained in cl. 11(e) of Direction No.69.
The value of the course to the applicant’s future
As noted, the applicant has previously been awarded a Bachelor of Commerce and a Master of Finance in Australia. He also completed the Advanced Diploma of Translating in November 2020. The applicant is currently studying a Diploma of Hospitality Management. The Tribunal used the procedure in s.359A of the Act to put to the applicant concern that he has previously completed qualifications in Australia at a higher level than the qualification he would gain from his current course. While the applicant provided a response, he did not directly address this concern and the Tribunal overall finds the reasons he has provided for enrolling in his current course, and the value he will gain from this course, to be very general and lacking sufficient detail. The applicant claims that despite his educational background, it’s always a get more knowledge and skills to broaden employment opportunities.
The applicant has not explained how his current course of study is relevant to his future employment plans, or how it will assist him to obtain employment or improve his employment prospects in his home country. In response to a question on ‘Information about future plans’ contained in the ‘Request for Student Visa Information’ form, the applicant states that as soon as he obtains the Diploma, he will arrange his travel back to China. He also provides the following brief statement: ‘I will seek job in accounting sector in hospitality industry’. It is unclear why the applicant would need to obtain a Diploma of Hospitality Management in order to secure a role as an accountant within the hospitality industry. It is also unclear whether specialising in accounting within the hospitality industry will create more opportunities for the applicant, rather than narrow his opportunities. In response to a question about the remuneration the applicant expects to receive, using the qualifications he will gain from his current/proposed study, the applicant has merely stated ‘AUD 60000’, without providing any information about the basis for making such a claim.
I have also considered the written statements the applicant has provided to the Department and Tribunal, but note that these were prepared in support of his previous enrolment in the Advanced Diploma of Translating, and provide no reference or support for the applicant’s current course of study. The applicant has not provided a detailed statement as to the value of the Diploma of Hospitality to his future, other than providing the brief statements contained in the ‘Request for Student Visa Information’ form.
I find that the applicant is undertaking a course that is significantly below his existing level of education at the Bachelor and Masters degree levels, as well as below the Advanced Diploma course which was the subject of the visa application, and which he has now completed. The applicant has not provided any information as to how the Diploma of Hospitality Management will assist him to obtain employment or improve his employment opportunities, other than general statements such as obtaining more skills and experience. The applicant has provided only a brief statement about intending to find work in the accounting sector of the hospitality industry, but has not explained how the Advanced Diploma would assist him to obtain such a role over and above his existing qualifications and experience. I also find the applicant has provided insufficient information regarding the remuneration he can expect to receive in his home country or a third country, compared to Australia, using the qualifications to be gained from the proposed course of study.
The applicant’s immigration history
Since first arriving in Australia in 2012 the applicant has successfully completed a Bachelor of Commerce and a Master of Finance, as well as completed the Advanced Diploma of Translating, which formed the basis of the Student visa under review. I give some weight to this academic history. The applicant however enrolled in a further Diploma course in Interpreting, following which he enrolled in his current course, the Diploma of Hospitality Management. Although the applicant appears to have successfully completed all of the courses which he has enrolled in, I find that since November 2019 he has enrolled in a series of vocational courses, first in Translating/Interpreting, and now in Hospitality Management. I find that the applicant is undertaking a series of relatively short and inexpensive vocational courses (compared to the Bachelor and Masters degrees) in order to maintain ongoing residence in Australia. The CoE for the applicant’s current course indicates the total course fees are $6,500. As noted above, the applicant provided little detail as to his reasons for now enrolling in the Diploma of Hospitality Management. Having considered the evidence as a whole, I have concerns that the applicant has enrolled in this course primarily to maintain enrolment and to obtain a successful Student visa outcome, rather than for his stated reasons.
In making these findings I have has regard to the evidence the applicant has provided of his progress with the Diploma of Hospitality Management and his expected completion date on 19 August 2022. I also give some weight to the applicant’s return to China, including his employment as an accountant from December 2018 to April 2019. This evidence is however not sufficient to allay my concerns about the applicant’s reasons for wishing to undertake this course, particularly in light of the very limited information he has provided about the value of his current course of study to his future. The Tribunal is not satisfied that the applicant is not now simply proposing a further short and relatively inexpensive course in order to gain a Student visa with the primary objective of maintaining ongoing residence in Australia.
For the sake of completeness, I find that there is nothing before the Tribunal to indicate that the applicant has previously had a visa application refused or a visa cancelled or considered for cancellation, either in Australia or elsewhere. There is no evidence that he has applied for other visas which are yet to be fully determined. There is no evidence to suggest that he has not complied with the conditions of his visas, and the Tribunal makes no adverse findings about these factors. However, for the reasons set out above, the Tribunal has concerns with the factor set out in cl. 14(b)(iii) of Direction No.69.
The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.
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.
Frank Russo
Member

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

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

[2022] AATA 3580

5 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction