Teppitak (Migration)

[2021] AATA 3633

Teppitak (Migration) [2021] AATA 3633 (19 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nattakan Teppitak

CASE NUMBER:  1929710

HOME AFFAIRS REFERENCE(S):          BCC2019/4467817

MEMBER:Deputy President J.L Redfern PSM

DATE:19 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 19 July 2021 at 12:10 PM

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – whether the applicant meets the genuine temporary entrant criterion – applicant invited to provide information under s.359(2) of the Act – applicant provided written consent for the Tribunal to proceed to a decision without a hearing – Tribunal not satisfied that the applicant has intention genuinely to stay temporarily – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth), ss. 65, 359, 359C,360, 363A, 379A and 499
Migration Regulations 1994 (Cth), Sch 2 cl.500.2

CASES

Bala v Minister for Immigration and Border Protection [2019] FCA 600
Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40
Singh v Minister for Immigration & Anor [2018] FCCA 3423

SECONDARY MATERIALS

Minister for Immigration and Border Protection, Direction No. 69, 18 April 2016
President’s Direction, Conducting Migration and Refugee Reviews, 1 August 2018

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 October 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. I affirm the decision under review. My reasons follow.

   BACKGROUND AND RELEVANT LAW

3. The applicant is a 37-year-old national from Thailand. She applied for a student visa on 6 September 2019. In her application for the visa, the applicant stated that she was enrolled in a Diploma of Project Management from August 2019 and following this, the Advanced Diploma of Program Management, commencing in August 2020 and finishing in August 2021. It is recorded in her application that the applicant has completed five courses in Australia since March 2012. According to the applicant, she wanted to acquire these qualifications so that she could work with her cousin who was the co-founder of a business consultancy group in Thailand.

4. 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.

5. For the visa to be granted, the applicant is required to meet the primary criteria set out in cl.500.2 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. These primary criteria include requirements relating to enrolment (cl.500.211), access to funds and financial capacity (cl.500.214) and being a genuine applicant for entry and stay as a student (cl.500.212). The applicant must also satisfy health insurance and public interest criteria and, if required by the Minister, to satisfy specified English proficiency requirements.[1] Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. All criteria must be satisfied at the time a decision is made on the application.

   [1] Clauses 500.215, 500.213 and 500.217 respectively of Schedule 2 to the Regulations.

6. Clause 500.211 provides that an applicant must meet one of the alternative grounds contained in the clause, including the requirement to be enrolled in a ‘course of study’ which is defined in cl.500.111 to mean, amongst other things, study in a full-time ‘registered course'. A ‘registered course’ means a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students (reg 1.03 of the Regulations).

7. Clause 500.212 requires that the applicant be a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily[2] and intends to comply with any condition this subject to which the visa is granted.[3] There is a further requirement that the applicant meet any other relevant matter.[4] There are no other relevant matters prescribed and this is a broad provision which allows the decision-maker to have regard to other relevant factors that might indicate the applicant is not a genuine student. Departmental guidelines, which are not binding but instructive, state that the decision-maker should only refuse to grant a visa under cl.500.212(c) if the applicant satisfies all other Schedule 2 criteria, including the genuine temporary entrant criterion.

   [2] Clause 500.212(a) of Schedule 2 to the Regulations.

   [3] Clause 500.212(b) of Schedule 2 to the Regulations.

   [4] Clause 500.212(c) of Schedule 2 to the Regulations.

8. Clause 500.214 provides that an applicant for a student visa must have genuine access to funds of the kind specified and, if requested, an applicant must provide evidence of financial capacity that satisfies the requirements specified in an instrument.[5]

   [5] Refer subclauses 500.214(2) and (3). The relevant instrument is Evidence of Financial Capacity for Subclass 500 (Student) Visas and Subclass 590 (Student Guardian) Visas.

9. In this case, the delegate refused to grant the visa because he was not satisfied the applicant intended genuinely to stay temporarily in Australia and was therefore not satisfied, she met the requirements of cl.500.212 of Schedule 2 to the Regulations. The delegate noted that the applicant had spent over 11 years in Australia on temporary visas (the delegate was obviously including the previous working holiday visa) and this, together with a lack of regular departure, made it difficult to reconcile the applicant’s claim that she was a genuine temporary entrant. The grounds for the refusal are set out in the delegate’s written decision record dated 1 October 2019.

10. The applicant provided to the Department evidence in relation to other criteria for the student visa, but the delegate did not consider any requirements other than the criterion in cl.500.212.

11. On 19 October 2019, the applicant applied to the Tribunal for review of the refusal decision and attached the decision record to her application for review. The review was lodged by migration agent, Shadesh Barua of Australian Migration and Education Center, on the applicant’s behalf.

12. On 3 February 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting her to provide specified information in writing to satisfy the Tribunal that she met the requirements of both cls.500.211 (enrolment) and 500.212 (genuine temporary stay and entry). The invitation required a response by 17 February 2021.

13. The invitation included an online form headed ‘Request for Student Visa Information’ and attached a copy of Ministerial Direction No. 69. The relevance of this Direction is outlined later in my reasons.

14. The form provides information to the recipient about how to complete the form and requests specific information from the applicant, such as their personal details, the courses undertaken before arriving in Australia, information about travel to Australia and home country visits, information about other visas and information about current and proposed courses of study. The form also requests information about the applicant’s work in Australia, the applicant’s expenses and information about ‘other circumstances’, such as information about their family, community ties, assets in their homeland and future plans.

15. Relevantly, the form asked whether the applicant consented to the Tribunal deciding the review without a hearing. It is expressly noted that if the applicant consents to this, she would not be invited to appear at a hearing to give evidence and present arguments and that the decision of the Tribunal would be made based on the information and evidence before the Tribunal. It was further noted that the Tribunal may either affirm or set aside the decision under review. It was also noted that the Tribunal may consider criteria or issues that were not previously considered by the primary decision-maker. The applicant was provided with an ‘Information about Decisions’ fact sheet.

16. The applicant responded to the invitation on 17 February 2021 by completing the online form. She stated that she consented to the Tribunal deciding the case without a hearing. She otherwise completed the form, providing the information requested and attached a number of documents, which included Certificates confirming the results of various course completed by her. Relevantly, while she referred to her studies in the Diploma and Advanced Diploma courses she had enrolled in at the time of her application, she did not provide any updated evidence about this through updated Confirmation of Enrolment certificates.

17. The Tribunal caused a search of PRISMS, being the Provider Registration and International Student Management System register, to be undertaken on 20 May 2021. The purpose of this search was to verify whether the applicant was enrolled in a registered course.

18. According to the PRISMS website, the Department of Education, Skills and Employment is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It is recorded that PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the Education Services for Overseas Students Act 2000. It is further noted that PRISMS provides a secure system for providers of registered educational institutions to comply with legislative requirements by issuing confirmations of enrolments as ‘evidence of enrolment’ in a registered full-time course as required by the Department of Home Affairs and reporting changes in course enrolment, particularly where study ceases, or the duration of the study changes. I am satisfied that, in the absence of information or evidence to the contrary, the PRISMS search is reliable evidence of the enrolment and course records of an applicant who is the subject of the search.

19. The PRISMS search revealed that the Diploma of Project Management and the Advanced Diploma of Program Management were cancelled on 23 October 2019 and the reason recorded is because the applicant no longer held a student visa.

20. By letter dated 26 May 2021, the Tribunal wrote to the applicant pursuant to s.359A of the Act, advising her about the results of the PRISMS search and inviting her to comment on or respond to this information by 9 June 2021. The invitation further stated that if the Tribunal relied on this information it may find that the applicant was not currently enrolled in a course of study, which would mean the applicant did not meet cl.500.211 of Schedule 2 to the Regulations and that this would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant the applicant’s student visa.

21. By letter dated 9 June 2021, the applicant’s representative responded to the invitation on her behalf, the details which are set out later in these reasons, and attached a Confirmation of Enrolment recording that the applicant had enrolled in an Advanced Diploma of Digital Marketing, which was due to commence on 12 July 2021 and finish on 10 July 2022 that she had paid tuition fees of $1500 with a total tuition fee of $6000.

22. Section 360 of the Act provides that the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments. However, s.360(2) of the Act provides exceptions to this requirement. Those exceptions apply if the Tribunal decides it can make a favourable decision on the material before it, or (relevant to the facts of this case) if the applicant consents to the review without appearing before the Tribunal or if a person is invited in writing under ss.359 or 359A of the Act to give information or to comment or respond to adverse information and does not give that information or comment or respond before the time for giving it has passed. Subsection 360(3) of the Act provides that if any of the paragraphs in s.360(2) apply the 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.[6]

    [6] Hasran v MIAC [2010] FCAFC 40.

23. In this case the applicant has responded to the invitation to provide information within the prescribed period and she has responded to the question about whether she consents to the Tribunal conducting the review without her appearing before the Tribunal by answering ‘Yes, I/we consent to the Tribunal deciding the review without a hearing’.

24. For an applicant to respond thus it is necessary for them to expressly choose this option in the online form. I am therefore satisfied that the applicant has consented to the review without a hearing and there is nothing before me to suggest that this consent is other than informed. Accordingly, having regard to the applicant’s consent and the relevant legislative provisions, I have decided to proceed to determine the review on the basis of the material provided by the applicant to the Department and to the Tribunal.

    OUTLINE OF EVIDENCE

25. The application for the applicant’s student visa was lodged online and submitted by a migration agent.

26. The applicant answered all questions in the application and the following is a summary of the information provided in the application and in the accompanying documents:

    (1)The applicant had resided in the Khao Yoi District in Thailand.  She has three immediate family members who resided in Thailand, being her parents and younger brother. The application does not make reference to any relatives living in Australia.

    (2)The applicant has a Bachelor of Arts from Silpakorn University in Thailand and she has completed a number of courses in Australia, including an English course in 2012, and an Advanced Diploma of Marketing (October 2015 to October 2016).

    (3)In answer to the question about whether she had visited any countries in the past 10 years, the applicant answered ‘yes’ being Australia, Laos and Thailand nine times from 2012 for short periods for a ‘family visit’.

    (4)In answer to the questions about whether she had ever been convicted of any offence, the applicant responded to the negative, including in answer the question about whether she had ever been removed, deported or excluded from any country.

    (5)The applicant provided a number of documents in support of her application, including financial information, health insurance details, details about her previous qualifications and transcripts of the courses completed, including a transcript of her bachelor degree completed in Thailand, a family tree for the Teppitak family and a letter said to be from the General Manager of a company known as Much More Marketing Co, Ltd dated 2 September 2019 offering her the position of Project manager in the company’s ‘new marketing scheme in Malaysia and Laos in 2021 and 2022’. The applicant also provided a document, translated into English, dated 26 June 2019 purporting to be a certificate in relation to the registration of Much More Marketing Co Ltd, which was stated to have been registered on 5 July 2018, with one of the directors being the General manager who signed the letter of 2 September 2019.

    (6)In addition to this documentation, the applicant provided a statement in support to the following effect.

    (7)The applicant stated that she graduated from university in March 2006 and after she graduated, she got a job at Philip Morris where she worked as a customer sales and service support officer for about three years. The applicant stated that she wanted to improve herself and therefore decided to enter the Australian working holiday program. After her work finished, she decided to return to Australia as a student and enrolled in an English program which commenced in March 2012. She also enrolled in a Diploma of Accounting but changed her study to Diploma of Information Technology (Multimedia) because she believed her English was not good enough for the Diploma of Accounting. She then updated this course to a Diploma of Digital Media Technologies and then subsequently enrolled in a Diploma of Business and Advanced Diploma of Management. She encountered difficulties and in 2015, after careful consideration, decided to change her study plan to study English and then an Advanced Diploma of Marketing which she completed in October 2016.

    (8)During her study in Australia, the applicant stated that she was in the relation relationship with someone and they had been together for about five years. Her partner decided that she wanted to return to study and the applicant changed her visa to be a dependent on her partner’s student visa from 2017 to 2019. However, they broke up after this and, in discussion with her family, she was told that her cousin, who was a co-founder of Much More Marketing Co Ltd, wanted someone to help with her company. She discussed this with her cousin who advised her to obtain project management qualifications. After consultation with her family she decided to do this.

    (9)The applicant further stated that her future was very difficult to predict but she believed her education in Australia would benefit her in the long-term to return to Thailand after completing her Advanced Diploma of Program Management. The applicant stated that she loved Thailand and that she wanted to spend the rest of her life with her family and friends and that she had no plans to live permanently in Australia.

27. In response to the request for information from the Tribunal, the applicant provided details about her previous qualifications, including a certificate dated 25 October 2016 from the Warwick Institute of Australia confirming she had completed an Advanced Diploma of Marketing, together with a transcript of the studies completed, certificates dated 7 December 2012, 21 June 2013 and 4 April 2014 from Central College certifying that she had completed Certificates II, II and IV in Information, Digital Media And Technology (Multimedia), together with transcripts of her results, and a certificate from Central College dated 27 June 2014 about competencies completed by the applicant which were said to comprise part of the Diploma of Digital Media Technologies.

28. In answer to the online form, the applicant provided further details in relation to her previous visas and enrolments. According to the applicant, she arrived in Australia in November 2010 and travelled home on 10 occasions from February 2012 to January 2019 to visit her family. The applicant outlined her visa history, noting that she originally came to Australia on a working holiday visa which ceased in November 2011. She referred to her current student visa but did not list the previous visas that were granted, apart from the working holiday visa, and it is possible that she misunderstood the question being asked because it is clear from her application and the delegate’s decision she had had a number of previous student visas. The applicant detailed the various courses that she had undertaken and those that had been completed, which included the English courses, and the Advanced Diploma of Marketing. The balance of the courses, being the Diploma of Accounting, the Diploma of Business, the Advanced Diploma of Management and the Diploma of Multimedia, are recorded as ‘not completed’. Interestingly, the applicant did not include the certificate courses that she had finalised for Information, Digital Media and Technology (Multimedia) or the Diploma of Digital Media Technologies, the details of which were attached to the response to the form and clearly this was just an oversight. Relevantly, the applicant noted that she had not completed the Diploma of Project Management or Advanced Diploma of Program Management courses but she did not provide any evidence that she was enrolled in a course of study.

1. In response to the question about her current and proposed courses of study, the applicant responded to the effect that she had seen the marketing material which ‘looked good’ but she subsequently realised that this was not a good college so she decided not to continue.

2. The applicant stated that she had been employed as a gaming attendant in two hotels from September 2014 to about April 2018. She also stated that when she was in Thailand, she went to Buddhist temples to perform Buddhist rituals and practice meditation and that she did the same thing in Australia. She stated that she contacted her parents and brother on a regular basis.

3. In response to the question about her future plans, the applicant stated that her cousin owned a marketing company and she had wanted to join the company after she finished the project management course but because she had been able to unable to study and given the COVID-19 situation, she expected another chance to gain more knowledge and focus on multimedia and online marketing. She stated that she would expect to make $40,000 annually from her marketing business.

4. After the Tribunal sent the invitation to the applicant to comment on the adverse information that she was not currently enrolled in a course of study, the applicant responded, through her migration agent, by letter dated 9 June 2021, providing a confirmation of her enrolment in an Advanced Diploma of Digital Marketing. In the submission accompanying the Certificate of Enrolment, it was noted that the applicant’s original plan was to be the manager of an overseas branch of her cousin’s company. However, because her application for the student visa was rejected and she did not continue with her studies, there was uncertainty about what would happen. According to the submission, her cousin’s company was also impacted by the COVID-19 pandemic. It was submitted that most businesses in Thailand operate online and that digital marketing is a popular way for companies to promote their business. As such the applicant decided to continue her study by enrolling in an Advanced Diploma of Digital Marketing which would be the best way for her to gain employment when she returned to Thailand. It was further submitted that this course was different from other courses that the applicant had completed and would provide her with adequate skills and knowledge to focus on her career in Thailand.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Overview

5. Based on the information provided by the applicant that she is currently enrolled in a course of study, I am satisfied the requirement in cl. 500.211 is met. As such, the issue in the present case is whether the applicant meets the requirements of cl.500.212 at the time of my decision, namely whether I am satisfied that she is a genuine applicant for entry and stay as a student.

6. Clause 500.212 provides 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.

   Intention genuinely to stay in Australia temporarily

7. In considering whether an applicant satisfies cl.500.212(a), I 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. Section 499 provides that the Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers.

8. 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.

9. 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 and reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion. [7]

   [7] Direction No 69, Part 2 at [1].

10. This was confirmed in Nguyen v MIBP [2013] FCCA 1864 and more recently in Singh v MIBP [2018] FCCA 3423 where the Court found that the previous direction, which included a similar provision as contained in Direction No. 69, is not intended to be construed as a checklist but the factors are all matters for the decision-maker ‘to think about and weigh up’.[8] The Federal Court provided further helpful guidance on this issue in Bala v MIBP [2019] FCA 600 where the Court found that, even though the Tribunal decision did not specifically refer to certain factors included in the direction, it did not follow that those factors were not considered and in the circumstances of the case:

    .. it is reasonable to infer that matters not mentioned were considered, though not sufficiently germane to the Tribunal’s decision to warrant express mention, separately or collectively.[9]

    [8] Singh v MIBP [2018] FCCA 3423 at [17] and [18].

    [9] Bala v MIBP [2019] FCA 600 at [17]–[18].

11. Not all factors set out in Direction No.69 are relevant to the circumstances of this case. My consideration of those matters is set out below.

    The applicant’s circumstances

12. Direction No.69 provides the decision-makers should have regard to the applicant’s circumstances in their home country and their potential circumstances in Australia and should also have regard to the value of the course to the applicant’s future. According to the Direction, weight should be placed on an applicant’s circumstances that indicate the student visa is intended primarily for maintaining residence in Australia.

13. The Direction gives further guidance on considering the applicant’s circumstances in their home country and notes that decision-makers should have regard to whether the applicant has reasonable reasons for not undertaking the study in their home country if a similar course is already available there, the extent of the applicant’s personal ties to their home country (such as family, community and employment ties) and whether those circumstances would serve as a significant incentive to return, the economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country, including consideration of those circumstances relative to the home country and to Australia and finally whether there are military service commitments or political and civil unrest in the applicant’s home country that would be a significant incentive or motive not to return their home country.

14. When considering the applicant’s potential circumstances in Australia, the Direction notes that decision-makers should have regard to factors such as the applicant’s ties with Australia, both community and family, which would present as a strong incentive to remain, any evidence that the student visa program is being used to circumvent the intentions of the migration program or is being used to maintain ongoing residence, whether any primary and secondary applicants have entered into a contrived relationship to facilitate a successful student visa outcome and the applicant’s knowledge of living in Australia and their intended course of study and the education provider chosen.

15. In considering the value of the course to the applicant’s future, decision-makers are directed to consider whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist them to obtain employment or improve employment prospects in their home country or a third country, the relevance of the course to the student’s proposed future employment in their home country and the remuneration the applicant would expect to receive in home country or third country, compared to Australia using the qualifications to be gained from the proposed course of study.

16. There is no evidence about whether there is a similar course available to the applicant in Thailand. I accept that the applicant has significant personal ties with Thailand, being her family and friends, and that she has returned to Thailand on many occasions to visit her family. There are no particular circumstances in Thailand which would be a disincentive for her to return, such as military service or political and civil unrest. In contrast, the applicant does not own any assets in Thailand, and she does not refer to any particular employment opportunity available to her in Thailand or elsewhere overseas that would be an incentive for her to return to Thailand or to leave Australia at the end of her course. At the time of her application, the applicant referred to a potential job opportunity with her cousin, but this is no longer available according to her most recent submission.

17. The applicant does not have any family ties in Australia, but she was a relationship for five years, I accept her submission on the face of it that this relationship has broken down. However, it is relevant to note the applicant has now lived in Australia for nearly 9 years which suggests she may have, or may have developed, significant ties with the Australian community.

18. During the period of her previous study, the applicant enrolled in English courses, which I accept would be valuable for any future employment opportunities in her country. She also enrolled in a number of other courses, which she did not complete. It is not clear how some of these courses would have assisted her future employment opportunities. The applicant previously enrolled in a marketing course, which she completed, and I accept this may have provided her with further employment opportunities in her home country. Based on the evidence provided by the applicant, it is apparent that she completed several certificate and a diploma courses in digital technologies from 2012 to 2014 and I accept that these courses also may have been of value to her employment prospects, particularly having regard to the potential job opportunities she foreshadowed in her most recent application for a student visa. However, these studies were undertaken between 2012 and 2016. I accept that even though the applicant did not complete all of the study she originally enrolled in, she did finalise studies and, as such, I am prepared to accept that her intention over that period was genuinely to stay temporarily in Australia for the purpose of study and advancement of her career.

19. However, the issue for determination in this case is whether I am satisfied that the applicant intends genuinely to stay in Australia temporarily at the time of my decision. Relevantly, I must consider whether the reason for her stay, being the proposed study, initially in the Diploma of Project Management and the Advanced Diploma of Program Management, and more recently the Advanced Diploma of Digital Marketing, is genuine.

20. The applicant’s original submissions were to the effect that she enrolled in the project management and program management courses to facilitate employment with her cousin in Thailand and overseas. This was after a significant break of over three years of having previously completed studies. In the applicant’s submissions which accompanied her application, the information provided by the applicant about whether these courses were of particular value was vague and unconvincing. The potential job opportunity was for an overseas marketing company that would use the digital medium. At this stage the applicant appears to have had the required skills because she had already completed a diploma in marketing and, on her own account, several certificates courses and a diploma in digital technologies. Her submissions made at the time of the application did not disclose a clear reason why the additional degrees of project and program management were of value to the potential job opportunities she wanted to pursue in Thailand.

21. When her application for the student visa was refused, the applicant no longer continued with her enrolment in these courses and she has not been studying over the past 2 years. It was only when the Tribunal wrote to her indicating that she was not enrolled, that the applicant then enrolled in the current course, being an Advanced Diploma of Digital Marketing. I accept the submissions that she may have decided not to enrol or continue her studies in those nominated courses pending her application for review and I also accept the submissions that circumstances have changed because of the COVID-19 pandemic. However, I am not persuaded that the current course is of value to her employment prospects overseas and in her home country or that she has enrolled in this course for the purpose of advancing her career. The job opportunities that the applicant has foreshadowed in her submissions are vague and general in nature and, as already noted, she has obtained qualifications that would appear to facilitate career advancement in digital marketing if she was to Thailand.

22. On balance, I am not persuaded, having regard to the applicant’s circumstances in Australia and in her home country, that these matters weigh in favour of a finding that the applicant has an intention genuinely to stay temporarily in Australia. I give considerable weight to the fact that after initially undertaking study, the applicant did not study for a period of three years, the courses that she enrolled at the time did not appear to have particular value or relevance to the employment prospects she was considering and that she is only just enrolled in another course, the reasons for which are vague and unconvincing. Notably, the applicant apart from making a submission to the effect that this course will be different from the other courses she has completed, the applicant does not explain why this is so or why these particular qualifications are different or more useful than the previous qualifications that she has obtained in marketing and digital technologies.

    The applicant’s immigration history

23. It is noted that the applicant’s immigration history refers to both their visa and travel history. The Direction notes that decision-makers should have regard to factors such as previous visa applications for Australia or other countries, including whether the applicant has previously applied for an Australian temporary or permanent visa or if the applicant has previously applied for visas to other countries, whether the applicant was refused visa and the circumstances that led to the refusal.

24. The Direction also notes that decision-makers should have regard to previous travels to Australia and to other countries and, if the applicant has previously travelled to Australia, whether they have complied with the conditions of their visa and left before the visa ceased and, if not , whether this related to circumstances beyond their control, whether the applicant previously held a visa that was cancelled or considered for cancellation, the amount of time the applicant has spent in Australia and whether the student 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. Factors such as whether the applicant has travelled to countries other than Australia and whether they have complied with migration laws in that country in the circumstances around any non-compliance should also be considered.

25. In this case, there is no evidence to suggest that the applicant has failed to comply with immigration laws in other countries or in Australia. The applicant first arrived in Australia in 2010 a working holiday visa and then re-entered Australia two years later, presumably on a student visa to study. According to the information she provided to the Tribunal in response to the online form, she completed a general English course in 2012, failed to complete a Diploma of Accounting course and a Diploma of Multimedia course in this two-year period that she resided in Australia. The applicant also provided information that she enrolled in Diploma of Business and Advanced Diploma of Management courses in 2014 and 2015 that she did not complete. She explained this because she was having difficulties during 2015, which I am prepared to accept. She did complete a general English course in 2015 and an Advanced Diploma of Marketing which finished in October 2016. The applicant states that she was a dependent on her partner’s visa for a period. There is no information contained in the Department file or in the delegate’s decision that refers to these matters and , as such, is difficult to draw any negative inferences about these matters other than to accept her submissions in this regard. Accordingly, there is no evidence that the applicant has breached visa conditions or that she has remained in Australia unlawfully. As such, these matters do not, on their own, tend to indicate that the applicant has previously used and is therefore proposing to use the student visa regime to maintain ongoing residence in Australia.

26. Notwithstanding this, the applicant has lived, studied and worked in Australia since late 2012. She has therefore resided in Australia for nearly 9 years on temporary visas. There is no evidence that she has undertaken studies since 2016, although I accept that she initially enrolled in two courses, which she did not complete or progress. After her visa was refused, the applicant lodged a review to this Tribunal, which she was entitled to do, but did not return to her home country pending consideration of that review or enrol in further studies until the issue was raised with her by this Tribunal in May 2021. These matters raise concerns about the applicant’s motivation to enrol in the current course, particularly when my findings about the applicant’s circumstances are taken into account.

27. In summary, the applicant’s immigration history and the length of time she has spent in Australia, together with my findings about her circumstances in Australia and her home country, tends to support an inference that this application for a further student visa and the enrolment in the current Advanced Diploma course was primarily for the purpose of maintaining ongoing residence in Australia.

    Where the applicant is a minor

28. The Direction provides guidance where the primary or secondary applicant for the visa is a minor. Because the applicant is not a minor this factor is not relevant to my considerations.

    Other relevant information

29. Finally, the Direction includes a ‘catch-all’ provision states that decision-makers should have regard to any other ‘relevant’ information provided by the applicant or otherwise available to the decision-maker, which includes information that may be either beneficial or unfavourable to the applicant. I have not identified any further information that would be relevant to this review.

    Findings

1. Having regard to my findings above and on the material before me, I am not satisfied that the applicant is genuinely undertaking the proposed courses for the reasons she contends but rather that she is more likely seeking to maintain residency in Australia. I am therefore not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

   Conclusion

2. I do not need to consider the remaining criteria in cl.500.212 because a visa applicant must satisfy all three criteria in cl.500.212 and the failure to meet any one of the criteria means the applicant cannot meet cl.500.212. Accordingly, I am not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

3. Given the above findings, I find 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

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

   J.L Redfern PSM
   Deputy President

   
   

   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.