Tong (Migration)

Tong (Migration) [2021] AATA 3206 (4 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jiao Tong
Ms Yingying Wang
Mr Zimo Tong
CASE NUMBER:  1920909
HOME AFFAIRS REFERENCE(S):          BCC2019/2442974
MEMBER:Justin Owen
DATE:4 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 04 August 2021 at 3:29pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – current and planned studies do not appear to align with claimed ambitions – significant period of time living in Australia – not a genuine temporary entrant– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, Schedule 2, cls 500.212, 500.311
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 22 July 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 8 May 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 main applicant (Mr Jiao Tong) did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the main applicant intends to genuinely stay temporarily in Australia.
The applicants were assisted in relation to the review by their registered migration agent.
On 29 January 2021 the Tribunal wrote to the applicants pursuant to s.359(2) of the Act inviting the applicant to provide further information to the Tribunal. The applicant was invited to provide all relevant information about the course(s) of study they were undertaking and their entry and stay in Australia as a student.
The Tribunal is satisfied that the main applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the applicant’s nominated address, being the address provided by them in connection with this application for review.
The invitation advised that, if the information were not provided in writing by 12 February 2021 or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking any further steps to obtain the information. Furthermore, the applicant would lose any entitlement they might have had under the Act to appear before the Tribunal to give evidence or present arguments.
Where an applicant is invited to provide further information under s.359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: s.359C(1).
The Tribunal finds that the main applicant did not provide further information as requested. No request for an extension to provide information was received.
The Tribunal notes therefore that the applicant failed to respond to the Tribunal’s s.359(2) invitation by the due date of 26 February 2021. Where an applicant is invited to provide further information under s.359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: s.359C(1).
In these circumstances, the review applicant is not entitled to appear before the Tribunal: s.360(3). Crucially, 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.
The Tribunal again wrote to the main applicant on 22 July 2021 under s.359A inviting him to comment or respond to information concerning his Provider Registration and International Student Management System (PRISMS) student record and Confirmation of Enrolment documents on the Tribunal file, that indicated he was currently enrolled and studying a Certificate IV in Marketing and Communication whilst he also held an enrolment for a Diploma of Marketing and Communication course scheduled to end in July 2022. The Tribunal also noted the main applicant’s enrolments in a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management had been cancelled. The relevant PRISMS record was provided to the applicant. The applicant responded in writing on 3 August 2021. The Tribunal has taken into account the applicant’s response of 3 August 2021 to the s.359A invitation in its decision.
The Tribunal has proceeded to make a decision on the material before it. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
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.
The Tribunal has considered the various documentation submitted by the applicants to the delegate as part of their original application, including the main applicant’s Genuine Temporary Entrant Statement. The applicants made no written submissions to the Tribunal until responding to the Tribunal’s s.359A invitation of 22 July 2021 on 3 August 2021. The Tribunal notes the evidence that has been supplied by the applicants is particularly limited.
The Tribunal has considered the applicant’s circumstances in their home country.
The main applicant held a Subclass 485 (Temporary Graduate) visa at the time of application. The applicant’s spouse is a secondary applicant in this application, as is his son who was born in Melbourne in November 2015.
The main applicant has stated that his mother is residing in PR China. He has made no claims as to any support his family in PR China are providing him, including his mother. The main applicant claims as the only son in his family, he has a duty to return to PR China to look after his widowed mother at the conclusion of his studies.
The main applicant has not supplied any information or made any claims as to any other family members currently residing in PR China acting as an incentive for him to return to his home country at the end of his studies. He states his father is deceased.
In his GTE statement to the Department the main applicant states that there are more and greater good work opportunities in PR China as the economy develops, including with foreign companies that have established themselves locally. He states he wants to return to PR China and put into practice what he has learned, and make his family proud of him.
There is no information before the Tribunal as to any property or assets he personally has in PR China. In the applicant’s application form he has answered ‘No’ to the question as to any job they have been offered at the completion of their course.
The Tribunal is not satisfied the main applicant has illustrated any incentive to return to PR China at the conclusion of his studies. There is no information in relation to any other family members other than his mother in PR China acting as an incentive to return to his home country. Whilst the Tribunal accepts the main applicant is his mother’s only son, and notes he has returned to PR China on several occasions to visit his mother between 2014 and 2017, the Tribunal does not accept this relationship is a significant incentive for him to return to his home country at the end of his studies. The Tribunal notes the main applicant’s spouse and son are both with him already in Australia, his son indeed born in Australia over five years ago. The main applicant married his spouse, the first-named secondary applicant in PR China in 2009: he has clearly been in a long-term relationship with his spouse. The main applicant and his wife, the secondary applicant have been in Australia since 2010, after he arrived in Australia as a dependent applicant on his wife’s Student visa. The Tribunal considers his spouse and son are greater incentives for him to remain in Australia than return to PR China to support his mother, who he had returned to see on the evidence before the Tribunal only three times in 9 years at the time of the delegate’s decision. COVID-19 and travel restrictions notwithstanding, there is no evidence before the Tribunal that the main applicant has returned to visit his mother since the delegate’s decision in July 2019. The Tribunal accepts the main applicant enjoys a cordial relationship with his mother but, on the totality of the evidence before it, the Tribunal is not satisfied the applicant’s familial ties to PR China, and his clams of needing to return to fulfil his duty as the only son, are operating as a significant incentive for him to return to his home country. The Tribunal also notes the applicant furthermore has claimed no assets, business or property in PR China that may be operating as a meaningful incentive for the applicant to return to his home country after finishing his studies.
The Tribunal furthermore notes the applicant has provided no specific evidence of any employment he undertook in PR China since leaving school/college/university. He turns 40 years of age this month. In his application form he declared his employment history and status to be ‘Unemployed’. He has submitted that he has not been offered a job at the end of his studies. There is no evidence of any employment or job operating as an incentive for him to return to PR China. The applicant has made vague claims as to the state of the Chinese economy and growth in foreign companies in his home country operating as an incentive for him to return, yet no details or tangible evidence or information has been submitted to support any claim as to how this may benefit him in an employment sense and incentivise he and his family’s return to PR China. The Tribunal is not satisfied there are economic or employment reasons for him to return to PR China.
The Tribunal considers the employment opportunities the main applicant claims he wishes to take advantage of in PR China, as a result of his studies, are generic and vague claims lacking in any genuine specificity. The Tribunal notes there is no evidence or claim of any actual employment opportunity or job that may be an incentive for him to return. The Tribunal does not consider employment in his home country is acting as an incentive for the applicant to return to his home country.
The Tribunal furthermore notes the main applicant’s current and planned studies do not appear to align with his claimed ambitions in his original GTE statement. He stated that whilst he good technical skills, he needed to improve his “soft skills” such as communication skills, decision-making abilities and leadership abilities. He stated he need to acquire the abilities to be a good leader and an outstanding project manager. The main applicant’s intention subsequently was to undertake a Diploma as well as an Advanced Diploma in Leadership and Management when he applied for his Student visa. The Tribunal notes however that the main applicant has subsequently cancelled his enrolments in such courses and instead enrolled in a Certificate IV in Marketing and Communication and seeks to undertake a Diploma of Marketing and Communication.
The applicant addressed this matter in his s.359A response of 3 August 2021. He stated that his original GTE statement was “the real situation”, but his own learning skills, as well as the outbreak of the COVID-19 pandemic and the move to on-line learning, all had an adverse effect on his ability to successfully complete his studies. The applicant stated that he failed too many subjects in his first year and tried to catch up. He stated that his education provider in July 2020 realised he was struggling with his studies – as illustrated by the academic record he provided the Tribunal – and suggested he downgrade from a Diploma course to a Certificate IV course. Given there was no Certificate IV course in Leadership and Management at his college, the applicant states that his course adviser then recommended he change to a Certificate IV in Marketing and Communication, which he claimed was the most relevant course to Leadership and Management.
The Tribunal appreciates that the COVID-19 pandemic may have had an impact on the applicant, and shifting to online learning may have been an extra challenge. The Tribunal however notes the applicant was specific that his motivation was to study leadership and management, to assist him in areas such as decision-making and acquiring leadership abilities. The Tribunal has considered the applicant’s s.359A response on the matter. The Tribunal considers his explanation for the change in focus of his studies from management and leadership to marketing and communications causes the Tribunal to question the genuineness of his motivations to study in Australia. The Tribunal does not accept that marketing and communications is “the most relevant course” to management and leadership. If the applicant were genuine in his desire to study management and leadership, and was finding the course at Wall Street College challenging, he could have pursued an alternative management and leadership course at another education provider. The Tribunal considers his poor initial education performance, followed by the decision to downgrade to a Certificate IV course in an alternative course of study, speaks to the genuineness of his claimed intentions as a potential Student visa holder and his claimed desire to return to PR China at the conclusion of his studies and pursue managerial employment with his new qualifications.
On the evidence before it the Tribunal is not satisfied that the main applicant’s familial ties are operating as a significant incentive for him to return to his home country. There is also no evidence of any property, business or assets he personally holds in PR China that are operating as any kind of meaningful incentive for the applicant to return to his home country. There is no tangible evidence of potential employment opportunities that are operating as a genuine incentive for him to return to PR China at the conclusion of his studies. The Tribunal is of the view that the economic and employment circumstances of the applicant do not present as a significant incentive for the applicant to return to his home country. The Tribunal is not satisfied that his studies in Australia will provide him with skills that will act as an incentive to return to PR China and acquire employment as he has claimed.
The Tribunal notes that no concerns have been expressed by the main applicant about compulsory military service; nor have any concerns been raised about political or civil unrest in PR China, that might be motivating the applicant to remain in Australia and not return home. However, these factors in his favour are relatively immaterial having regard to the other objective considerations in this case.
The Tribunal is not satisfied that the main applicant’s circumstances in their home country are operating as any sort of incentive for the applicants to return to PR China at the conclusion of his studies.
The Tribunal has considered whether the main applicant has sound reasons for not studying in his own country. In his GTE statement the main applicant claimed he chose his education provider, Wall Street College, because it provides “practical skills and experience to their students”. The main applicant claimed his provider allowed students to take part in programmes across a range of enterprise and industry contexts. He states that the teaching method combined theory and practical work. He also stated the course was suitable for him as it would provide students with knowledge about management including how to undertake market research, manage risk, as well as manage innovation and continuous improvement. The main applicant stated he would have a better understanding as to how to balance the budget and risks in any future project decision-making.
In his s.359A response of 3 August 2021 the applicant has stated that his new enrolments in a Certificate IV and Diploma in Marketing and Communication are “very consistent” with his future career planning as outlined in his GTE statement.
The Tribunal is not satisfied that the main applicant has provided satisfactory reasons as to why he could not study leadership and management - or indeed his latest enrolments in marketing and communication - in PR China. In relation to the reasons the main applicant provided in his GTE statement for undertaking the leadership and management courses in Australia, the Tribunal considers the reasons the main applicant has provided for choosing to study in Australia are largely incoherent generalisations and marketing slogans rather than genuine fact-based reasoning as to why he pursued studies in Australia rather than in his home country. There is no evidence before the Tribunal of the applicant ever attempting to enquire into or obtain enrolment in an equivalent course in PR China.

Similarly, the Tribunal does not consider the applicant has provided any plausible reasons as to why he could not study marketing and communication in PR China. The main applicant has made no claim that similar such courses are not available in PR China. There is no evidence or suggestion the applicant has even attempted to actually pursue enrolment in similar courses of study in his home country.
There is no evidence of any attempt to enquire into, research or make application for either leadership and management courses of study or courses in marketing and communications in PR China. The Tribunal notes the main applicant has no history of ever having been in employment. Whilst the Tribunal has taken into account the “soft skills” he claimed in his GTE statement that he will acquire from his studies in Australia, the Tribunal is not satisfied, given the lack of evidence supplied by the applicants, that the main applicant would not have been able to source courses that could provide him with such an education in PR China.
The Tribunal, on the basis of the evidence before it, is not satisfied the main applicant has provided sound reasons as to why he cannot study such courses in his own home country, whether those courses be his original and cancelled Leadership and Management studies or his subsequent Marketing and Communication Certificate IV and Diploma. There is no suggestion or evidence such courses are not available in PR China. There is no evidence or suggestion the main applicant has even attempted to actually pursue enrolment in a similar course of study in his home country. There is no evidence of any attempt to enquire into, research or make application for any of the courses he either enrolled in or undertook in PR China. If the main applicant is genuine in his desire to undertake such studies, the Tribunal is not convinced on the evidence before it that a suitable course of study in these areas is not available in PR China. The applicant expressed a desire in his s.359A response to switch back to on-campus, face to face learning. There is no suggestion that in-person studies are not available in PR China. The Tribunal is not satisfied the main applicant has provided sound reasons as to why he cannot study such courses in his own home country.
The Tribunal has considered the main applicant’s potential circumstances in Australia. The Tribunal notes from the delegate’s decision record the applicants provided, that the main applicant and his spouse, the secondary applicant Ms Yingying Wang, arrived in Australia in 2010. At that time the main applicant was the dependent applicant of the secondary applicant who held a Student visa. In November 2015 a child was born from the relationship, Mr Zimo Tong, who is also a secondary applicant in this matter. The Tribunal notes the main applicant and his spouse have now been in Australia for well over a decade. At the time of application in July 2019, the main applicant and his spouse, the secondary applicant had each only departed Australia on three occasions each to visit family in PR China. The Tribunal notes the evidence of residential leases and a contract for a motor vehicle, yet the applicants have provided little insight into their lives in Australia and failed to respond to the Tribunal’s invitation in January 2021 to provide any information pertaining to community ties they may have in Australia. Despite the lack of engagement by the applicants, the Tribunal considers the main applicant and the secondary applicants would in all likelihood have established some significant community ties in Australia in over a decade, including that of an Australian-born son. The Tribunal suggests that the applicant’s son and spouse are operating as strong incentives for the main applicant to remain in Australia at the conclusion of his studies.
The Tribunal furthermore notes that the main applicant has enrolled in courses that would see him, and the secondary applicants, now remain in Australia until at least July 2022. The Tribunal notes from the main applicant’s PRISMS record that the Diploma and Advanced Diploma of Leadership and Management his Student visa application originally pertained to was cancelled. The main applicant’s initial enrolment in a Certificate IV course in Marketing and Communication was cancelled. Despite commencing his studies over two years ago, in May 2019, the main applicant has not successfully completed any of his courses of study. In his s.359A response of 3 August 2021 the applicant has stated that his own learning skills, as well as the outbreak of the COVID-19 pandemic and the move to on-line learning, all had an adverse effect on his ability to successfully complete his studies. He provided his Diploma of Leadership and Management record of results that illustrates he failed the bulk of his units of study. The applicant stated that he failed too many subjects in his first year and tried to catch up. He stated that his education provider in July 2020 realised he was struggling with his studies – as illustrated by the academic record he provided the Tribunal – and suggested he downgrade from a Diploma course to a Certificate IV course. Given there was no Certificate IV course in Leadership and Management at his college, the applicant states that his course adviser then recommended he change to a Certificate IV in Marketing and Communication, which he claimed was the most relevant course to Leadership and Management.
The applicant seeks to undertake and complete courses in Marketing and Communication that would see him remain in Australia for what would be a period of over 12 years since his first arrival in 2010. Whilst the Tribunal accepts that in 2019 this was the main applicant’s first attempt to undertake studies in Australia and apply for a Student visa in his own right – and appreciates the extra challenges the COVID-19 pandemic and shift to online learning has caused, the Tribunal nevertheless has significant concerns as to the genuineness of his claims he wishes to utilise the skills he will acquire from study in the workforce. The Tribunal does not accept the main applicant’s claim in his s.359A response that marketing and communications is “the most relevant course” to the management and leadership aspirations he claimed in his GTE statement. The Tribunal notes the main applicant turns 40 years of age this month and has provided no evidence of him ever having been in gainful employment. The Tribunal considers the more likely scenario is that the main applicant is undertaking these studies for the purpose of remaining in Australia.
In considering the main applicant’s circumstances in Australia, the Tribunal has considered whether the student visa programme is being used by the main applicant to circumvent the intentions of the migration programme and to maintain ongoing residence. The Tribunal notes the applicant has now been in Australia for 11 years. The first-named secondary applicant has been in Australia for the same period. The second-named secondary applicant is born in Australia over five years ago. The main applicant has claimed it is his firm intention to return to PR China to care for his elderly mother. The applicant however has lodged his Student visa on the basis of undertaking studies that would see him remain in Australia until at least July/August 2022. The main applicant claimed he wished to study Leadership and Management to assist him in his future employability. The main applicant’s enrolments in the relevant courses however have subsequently been cancelled, and he has now instead enrolled in Marketing and Communication. The main applicant claims the courses he has now enrolled in are similar to leadership and management, but at the lower Certificate IV level more suitable to him in an environment impacted by the pandemic and online learning.
The Tribunal quite simply is not convinced, with the little evidence before it, that the main applicant’s claimed motivations for wishing to obtain a Student visa and undertake courses of study in either Leadership and Management or Marketing and Communication are genuine. The Tribunal considers the applicant’s s.359A response, and his attempt to explain his shift from Diploma and Advanced Diploma-level studies in Leadership and Management to Certificate IV level studies in Marketing and Communication, unsatisfactory. The applicant accepts that online learning and COVID-19 have been a challenge, it does not however consider that these issues are the cause of the main applicant’s inability to complete the courses his Student visa application was based upon. The Tribunal does not consider a Certificate IV course in Marketing and Communications – both a different programme of study and a lower level of education - is “the most relevant course” to his previous studies in leadership and management. The Tribunal does not accept that his new enrolment in marketing and communication will assist the main applicant attain his claimed career objectives as a leader and project manager. No plausible reasons have been presented as to why the main applicant did not pursue leadership and management studies through another education provider if Wall Street College was unable to offer an appropriate course of study similar to his original enrolment. In the absence however of any corroborative evidence or plausible submissions to convince it of the genuineness of the main applicant’s claims his desire and motivation to study in Australia is so he can become a better leader, communicator and project manager, the Tribunal holds significant concerns that the main applicant is attempting to utilise the student visa programme to circumvent the intentions of Australia’s migration programme.
The Tribunal has considered the value of the main applicant’s courses to his future. The Tribunal notes that at the time of application the main applicant enrolled in a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management. The main applicant’s PRISMS record illustrates his enrolments in these courses of study were cancelled. The main applicant subsequently enrolled in a Certificate IV in Marketing and Communication which was cancelled. The main applicant is currently studying a Certificate IV in Marketing and Communication whilst he holds an approved CoE to study for a Diploma of Marketing and Communication scheduled to end in July/August 2022. On 3 August 2021 the applicant provided the Tribunal with the relevant records of results from his studies.
The main applicant in his GTE statement claimed he needed to acquire the abilities to be a good leader and an outstanding project manager. He claimed he needed to improve his “soft skills” such as decision-making and leadership abilities, skills that would accompany his existing technical skills. The applicant holds vocational qualifications in Applied Electronic Technology from a technical college in PR China.
In his GTE statement the main applicant claimed he chose his education provider, Wall Street College, because it provides “practical skills and experience to their students”. He claimed his provider allowed students to take part in programmes across a range of enterprise and industry contexts. He states that the teaching method combined theory and practical work, and was suitable for him as it would provide students with knowledge about management including how to undertake market research, manage risk, as well as manage innovation and continuous improvement. The main applicant stated he would have a better understanding as to how to balance the budget and risks in any future project decision-making.
In his s.359A response of 3 August 2021, the main applicant maintains his original GTE statement was “the real situation” when he applied and “even now” he considers it to be an accurate summation of his motivations. He claims his challenges in successfully completing his Diploma and Advanced Diploma courses in Leadership and Management meant he was better, based on advice from his education provider, to downgrade to a Certificate IV course. Given there was no Certificate IV course in Leadership and Management at his college, the applicant states that his course adviser then recommended he change to a Certificate IV in Marketing and Communication, which he claimed was “the most relevant” course to Leadership and Management.
The Tribunal is not satisfied on the evidence before it that the main applicant has illustrated the value of the courses he has enrolled in to his future. The main applicant’s intention, as outlined in his GTE statement, was to undertake a Diploma as well as an Advanced Diploma in Leadership and Management when he applied for his Student visa. He provided specific reasons as to how and why these courses would benefit him in his career. The Tribunal notes however that the main applicant’s enrolments in these courses was subsequently cancelled. The main applicant now instead seeks to complete a Certificate IV and a Diploma in Marketing and Communication. In his s.359A response to the Tribunal he explains that he struggled with his studies in Leadership and Communication and shifted to a Certificate IV course in Marketing and Communications due to the fact there was no Certificate IV course in Leadership and Communications available at his education provider. He claimed that his adviser recommended he undertake such a course as it was “the most relevant” course to leadership and management.
The Tribunal appreciates that the COVID-19 pandemic may have had an impact on the main applicant, and shifting to online learning may have been an extra challenge. The Tribunal however notes the applicant was specific that his motivation was to study leadership and management, to assist him in areas such as decision-making and acquiring leadership abilities. In his GTE statement he referred to his studies assisting him with risk management, budgetary work and project management, skills he claims he would utilise in his career.
The Tribunal has considered the main applicant’s s.359A response on the matter, but does not accept that his current enrolment in marketing and communication is “the most relevant course” to provide him with the skills he claims he desires in management and leadership. If the applicant were genuine in his desire to study management and leadership, and was finding the course at Wall Street College challenging, he could have pursued an alternative management and leadership course at another education provider. The Tribunal considers his decision to downgrade to a Certificate IV course in an alternative course of study, speaks to the genuineness of his claimed intentions in his GTE statement that he wishes to utilise his studies in Australia to build his leadership and project management skills, and assist him utilise his existing technical skills in the workplace.
The Tribunal notes the lack of any previous employment information pertaining to the main applicant. Whilst the Tribunal acknowledges his qualifications previously acquired in PR China over a decade ago, he has not presented any information or evidence as to any employment he has held – or any future potential employment. The main applicant turns 40 years of age in August 2021, yet the Tribunal has scant information before it as to how these studies are germane to his future career and employment opportunities. There is no defined career goal or ambition before the Tribunal. The main applicant has not, in the Tribunal’s opinion, provided a plausible explanation as to how such courses will benefit his career and his employability. In such circumstances, the Tribunal is not satisfied that the main applicant has plausibly illustrated the value of such courses of study to his future. His GTE statement and his s.359A response have provided little real insight into just how these courses, whether in Leadership and Management or now in Marketing and Communication will add genuine value to his career, especially given they will require an even greater amount of his time and presence outside of his home country.
Noting the lack of any substantive information and evidence before it, the Tribunal considers the main applicant’s courses of study will be of limited utility and value to the main applicant’s future. On the evidence before it, the Tribunal is not satisfied that the main applicant has demonstrated the value of his proposed courses to his future. The Tribunal is of the firm opinion that the real motivation for the main applicant wishing to acquire a Student visa and undertake such courses, particularly after 11 years and in the absence of satisfactory and plausible supportive information pertaining to these enrolments and their value, is to secure his and the secondary applicants’ ongoing residence in Australia.
The Tribunal has considered the remuneration the main applicant could expect to receive in their home country or a third country, compared with Australia, using the qualifications to be gained from the proposed courses of study. The main applicant has not provided any evidence or claims for the Tribunal to consider. This lack of evidence speaks to the Tribunal’s broader concerns as to the value of the main applicant’s studies to his future.
The Tribunal has considered the main applicant’s immigration history. The Tribunal notes from the decision record the applicants provided that the main applicant initially arrived in Australia as a dependant on the Student visa of his wife, who is now the first-named secondary applicant in 2010. He was subsequently the dependent applicant of his spouse’s Subclass 485 Temporary Graduate visa. The main applicant – and the secondary applicants - now seek to remain in Australia until at least July/August 2022 with CoEs in place to study both a Certificate IV and Diploma in Marketing and Communication. The Tribunal notes its previously stated concerns as to the lack of any sort of satisfactory information and plausible evidence before it as to why the main applicant wishes to undertake his studies in either leadership and management or marketing and communication. Given this, the Tribunal holds significant doubts as to the genuineness of the main applicant’s claim he and the secondary applicants only intend to remain in Australia on a temporary basis, and his intention is to return to PR China for both employment and to look after his mother. The Tribunal notes that the main applicant and his spouse have at the time of application resided in Australia now for around 11 years as the holders of temporary visas. They now seek to further their stay in Australia on the basis of the main applicant acquiring a Student visa for reasons that the Tribunal is not satisfied are either genuine, or will be of any realistic value to the main applicant’s future. On the basis of the evidence before it, the Tribunal is not satisfied that the main applicant – and the secondary applicants – intend to return to PR China upon the end of the main applicant’s studies. The Tribunal considers the evidence collectively suggests the main applicant is not a genuine temporary entrant to Australia for the purposes of study, rather that the application is potentially being utilised to circumvent the Commonwealth’s migration programme.
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.

In relation to the secondary applicant, Ms Yingying Wang, the Tribunal notes that she is required to satisfy cl.500.311 in Schedule 2 to the Regulations. Cl.500.311 requires that the secondary applicant is a member of the family unit of the person (in this case her husband, the main applicant) who holds the Student visa. As the Tribunal has found that the main applicant does not meet cl.500.212, the secondary applicant does not satisfy cl.500.311. As the secondary applicant does not meet cl.500.311, she does not meet the criteria for the grant of the Student visa. There is no evidence or claim the secondary applicant meets the criteria for the grant of a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review in relation to the secondary applicant Ms Yingying Wang must be affirmed.
In relation to the secondary applicant, Mr Zimo Tong, the Tribunal notes that he is required to satisfy cl.500.311 in Schedule 2 to the Regulations. Cl.500.311 requires that the secondary applicant is a member of the family unit of the person (in this case his father, the main applicant) who holds the Student visa. As the Tribunal has found that the main applicant does not meet cl.500.212, the secondary applicant does not satisfy cl.500.311. As the secondary applicant does not meet cl.500.311, he does not meet the criteria for the grant of the Student visa. There is no evidence or claim the secondary applicant meets the criteria for the grant of a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review in relation to the secondary applicant Mr Zimo Tong must be affirmed.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Justin Owen
Senior Member

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

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

[2021] AATA 3206

4 August 2021

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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