Tran (Migration)

[2022] AATA 1886

Tran (Migration) [2022] AATA 1886 (1 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Trung Hieu Tran
Mrs Thi Minh Thao Lam
Master Jayden Tran

CASE NUMBER:  2003213

HOME AFFAIRS REFERENCE(S):          BCC2019/5640855

MEMBER:Peter Booth

DATE:1 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 01 February 2022 at 8:32am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No. 69 – study history in Australia – future employment plans – visa history – Australian citizen son – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 February 2020 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 8 November 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.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant was not a genuine temporary entrant.

4. The applicants appeared before the Tribunal on 15 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicants were assisted in relation to the review.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.

   Genuine applicant for entry and stay as a student (cl 500.212)

8. 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?

9. 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.

10. 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.

11. The applicant gave evidence at the hearing, the substance of which was follows. The applicant had read the delegate’s decision dated 12 February 2020 refusing his application for a student visa. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.

12. The applicant was asked to describe his current enrolment including commencement and completion dates. The applicant said “Bachelor of Business, leadership and management, start 15 November 21, end 23 June 23”.

13. The applicant had produced a confirmation of enrolment document to the Tribunal in respect of such a course. The Tribunal accepts that he is enrolled in the course described in the confirmation of enrolment.

14. The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2). In summary the information provided by the applicant was as follows.

15. The applicant did not disclose any education history prior to arriving in Australia. Insofar as his employment history in Vietnam was concerned the applicant stated that he was employed as “accountant – bookkeeping” between 2003 and 2007 and as “game Master” between 2007 and 2009. He stated that he derived an annual salary of AU$4,000 from the latter position.

16. The applicant arrived in Australia on 1 April 2009 and since that time has returned to Vietnam on four occasions, the most recent of which was in December 2018 for a period of one month.

17. The application for the student visa in question was made on 28 September 2019.

18. The applicant stated his visa history in Australia to be as follows: he held a “573” visa between March 2014 and September 2015, another “573” visa between October 2015 and March 2017 and a “457” visa between November 2015 and November 2019.

19. The applicant stated his study history in Australia to be as follows: he completed an English course between April 2009 and December 2009; he enrolled in a Certificate IV in Information Technology Networking in January 2010 but did not complete it; he completed a Certificate IV of Property Service between March 2011 and August 2011; he completed an Advanced Diploma of Accounting between January 2011 and December 2012; he enrolled in a Diploma of Information Technology (Multimedia) in April 2013 but did not complete it; he enrolled in a Diploma of Management in August 2013 but did not complete it; he enrolled in a Bachelor of Business in March 2014 but did not complete it; he completed a Diploma of Finance and Mortgage Broking Management between March 2014 and September 2014; he enrolled in a Bachelor of Accounting in September 2015 but did not complete it; and was “studying now” an Advanced Diploma of Leadership and Management which he commenced in November 2019.

20. The applicant stated that he was employed as an “IT assistant” between October 2011 and September 2015, as a “property manager full-time” between October 2015 and November 2019, and is currently employed as a “property manager part-time” which he commenced in December 2019 and from which he derives an annual salary of AU$19,500.

21. The applicant stated that his wife and two sons reside in Australia.

22. The applicant did not provide any information in relation to property ownership in Vietnam.

23. As to his future employment plans the applicant stated:

    I have been working in Real Estate Industry for a few years and really enjoy working in this area. I also can see it’s very potential to set up a business in Vietnam to sell properties in Australia to Vietnamese buyers and properties in Vietnam to Australian buyers. I have been trained in Real Estate and working in this area for many years. The only factor I still miss to make my dream become true is business management skill. Therefore, I chose this course Leaderships and Management. In any case, I prefer to stay in Australia until my children attained 18 years of age.

    That’s the start of my plan but finishing Diploma is not enough. I won’t stop there. I would like to continue studying master’s degree in business management to get confidence to set up my own business in Vietnam in the future.

24. As to his expected future remuneration the applicant stated:

    I am not sure of the future. However, as I mentioned earlier, my plan is to establish my own business ( a Real Estate Company) in Vietnam. Now there are more people who are interested in investing in buying properties in Australia and Vietnam and I guess, I can have at least AUD 10,000/month (let say can get 1% of the property value then I can receive AUD 5,000+ per property. Most of the new properties in Australia are ranging from AUD 500,000). Or even I can develop my business in selling properties locally because the value of many properties in 2 main cities including Ho Chi Minh & Ha Noi are very expensive (similar to the properties in Sydney or Melbourne CBDs). Or I can provide consulting to investors in Vietnam who are looking for investing in properties in both Vietnam and Australia smartly and effectively.

    Besides I can run courses of business management and real estate in Vietnam or work as an educator for colleges in Vietnam. I believe that I can make AUD 5,000+ /month easily. In Vietnamese Real Estate Industry is still not developing professionally while there are more people who can afford to buy expensive properties and they need a professional service so I believe that I can.

25. The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary, were as follows.

26. When asked to state his education qualifications obtained prior to arriving in Australia the applicant said “high school and went to work”.

27. The applicant confirmed that he arrived in Australia on 1 April 2009 as the holder of a Subclass 573 higher education visa. He was asked what courses he intended to study when he arrived. He replied “I study for the IT in the network in intimo”. He was asked to state the name of the course. He said “Internet program from uni ultimo”. He was asked whether he completed this course. He said “did not”. When asked whether he abandoned the course or was excluded from it he said “I did stop and change other subjects”. He was asked when this occurred. He said “December 2010, then start another course in January 2010 in accounting”. He was asked to state the name of this course. He replied “Diploma of Accounting”. When asked whether he completed this course he said “yes”. The Tribunal observed that in the information he had provided he had only referred to an Advanced Diploma of Accounting which had started in 2011 and asked the applicant whether this was a different course to the one he had just mentioned. He said “put in form M 17 on page 8 course start eight January 11 to January 12”. The Tribunal observed that he had stated that the course was called a Diploma of Accounting and had commenced in January 2010 and that was not mentioned in the information he had provided to the Tribunal. He said “I said when I do course star January 2010, 2010 IT course”.

28. The Tribunal observed that the applicant commenced a Diploma of Information Technology in April 2013 but did not complete it. He was invited to comment. He said “IT course in 2013 I could not finish I could not understand the course”. He was asked whether he was excluded from this course or had abandoned it. He said “I changed to new course”. He was invited to answer the question directly. He said “I was not abandoned I only want to change”.

29. The Tribunal observed that the applicant had enrolled in a Diploma of Management in August 2013 but did not complete it. He was invited to comment. He said “that was difficulty with teacher and student did not provide enough knowledge”. He was asked when he ceased studying that course. He said “I finish course February 2014”. He was asked whether he was now saying that he completed the course. He said “I did not continue about in March, April 2014”. He was asked whether he abandoned the course or was excluded from it. He said “no”. He was invited to explain his response. He said “I was not excluded”.

30. The Tribunal observed that he next enrolled in a Bachelor of Business in March 2014. The applicant agreed. The Tribunal observed that he did not complete the course and invited him to explain. He said “when I was in role I was also doing other course in finance, because of pressure I could not finish business course”. He was asked when he abandoned the course. He said “I was not abandoned but I did not finish”. He was invited to answer the question. He said “I quit the course”. He was asked when this occurred. He said that “I quit course”. When the question was repeated he said “July 2015”. The Tribunal asked whether the applicant was asserting that he had studied this course for 2 and a half years and then abandoned it. He replied “because after than a change to study better accounting”. When the question was repeated he said “yes”.

31. The Tribunal observed that he enrolled in the Bachelor of Business in July 2015 but did not commence it. He was invited to explain. He said “when I start doing better accounting after four months I got company to sponsor me is working visa, that is why you could not study”. He was asked whether he applied to defer the course. He said “no”.

32. The Tribunal asked him whether there were periods during which he was not enrolled in the course of study whilst holding a student visa. He said “I did study but did not complete course”. When the question was repeated he said “I do not study anything”.

33. The Tribunal asked the applicant’s representative to provide a concise history of the courses which he had enrolled in, including start dates, completion dates and if the course was not completed when it was abandoned. This information was also asked to highlight any period of non-enrolment. The applicant’s representative said that he would do so.

34. The applicant confirmed that his wife and two sons are currently residing in Australia. He was asked when they arrived in Australia. He said “my wife arrived in 2010, the children born here”.

35. He was asked the period during which he held a working visa. He said “sponsor work history that was for four years”. He confirmed he held a working visa between 2015 and 2019. When asked whether he had studied during that period he said “no”.

36. The Tribunal observed that he applied for the student visa in question on 8 November 2019. The applicant replied “in November 2019”. The Tribunal observed that this visa application was lodged three days prior to the expiry of the working visa. The applicant agreed.

37. He was asked why he re-engaged with study despite not studying for four years. He said “because I need to work full-time, I apply to get more skill to open business in future”. He was asked whether he was currently employed and to state the nature of the employment and his income. He said “at the moment part-time property manager, income $1000 or $2000 a month”.

38. When asked whether he owned an asset in his home country he said “no”.

39. He was asked to state his employment intentions when he returns to Vietnam. He said “I intend to open real estate business”.

40. The Tribunal asked the applicant why he had not studied a real estate course. He said “because I’ve been studying in real estate for seven years so have experience, need more learning about staff management”.

41. He was asked why his existing skills and experience are insufficient for him to open a real estate business in Vietnam. He said “because I got certificate for of real estate in Australia”. The Tribunal asked the applicant to confirm that he had obtained such a certificate in real estate. He did so. He was asked whether he was referring to the Certificate IV in “property service” which he completed in August 2011. He replied “I got another one in June 2001”. He was asked to state the name of this course and when it was completed. He said “name Certificate four in Real Estate Practice 2020, June 2021”. He was asked to confirm that he completed the course in June 2021 not 2001. He replied “2021”. When asked whether he had a certificate of completion for this course he said “yes”. He was invited to produce the certificate to the Tribunal by 4 pm on the day following the hearing. He said that he would do so.

42. He was asked why he was studying a course in leadership and management. He replied “because I want to improve knowledge so I can run company”.

43. The Tribunal observed that the applicant’s son, Mr Leon Tran, had become an Australian citizen. The applicant agreed. He was asked when this occurred. He said “after his 10 birthday, 25 July 2021”. He confirmed that the applicant’s son was 10 years of age.

44. He was asked whether any other person in his family had applied for Australian citizenship. He said “in family nobody applied for that”. He was asked whether anyone else in his family intended to apply for Australian citizenship. He said “no”. He was asked why a 10-year-old child applied to be an Australian citizen. He said “because by law children here after 10 year can become Australian citizen”.

45. When invited to add anything further to his evidence the applicant said “if member consider to help me with student visa for study that will help me with plan to open business in Vietnam”.

46. Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to those documents. By email dated 8 September 2021 the applicant’s representative requested that the application by Leon Tran be withdrawn on the basis that he had become an Australian citizen. By email dated 15 December 2021 the applicant’s representative produced details of the applicant’s visa history as follows:

    First visa 573 Granted on April 2009 to 03/2014 ( for 5 years) ( email lost , can not remember exactly record details)

    Then 2^nd visa 573 Date Application 11/03/2014- Granted on 19/03/2014 to 30/09/2015 .

    3^rd visa 573 Date Application 28/09/2015 - Granted on 21/10/2015 to 15/03/2017.

    4^th visa 457 Date Application 22/09/2015 - Granted on 11/11/2015 to 11/11/2019.

    5^th Visa 500 Date Application 08/11/2019 - Under process on 12/11/2019 until now .

47. Prior to the hearing the applicant provided a statement in support of his application for review. The statement is unsigned, undated, and without page numbers or paragraph numbers. The statement was not referred to by the applicant during the course of giving evidence at the hearing. Nonetheless it has been taken into account by the Tribunal to the extent relevant and given appropriate weight.

48. Subsequent to the hearing the applicant’s representative provided information in relation to the courses studied by the applicant as follows:

Education institution	Course Name	Date Enrolled	Enrolment status	Course Start Date	Course End Date	Date of Withdraw course early
Academies Australasia Polytechnic	Bachelor Business (Leadership and Management)	11/2021	Current	11/2021	06/2023
Clarendon Business College	Advanced Diploma of Leadership and Management	11/2019	Complete	11/2019	09/2021
Unique Real Estate	Certificate IV of Real Estate Practice	04/2020	Complete	04/2020	06/2021
Home College Sydney	Bachelor Accounting	07/2015	Did not complete	07/2015	12/2016	11/2015
The National Finance Institute	Diploma of Finance and Mortgage Broking Management	03/2014	Complete	03/2014	09/2014
Home College Sydney	Bachelor Business	03/2014	Did not complete	03/2014	07/2015	06/2015
Home College Sydney	Diploma Management	08/2013	Did not complete	08/2013	08/2014	02/2014
Cambridge College	Diploma of IT (Multimedia)	04/2013	Did not complete	04/2013	01/2014	07/2013
TAFE Bankstown	Advanced Diploma of Accounting	01/2011	Complete	01/2011	12/2012
Unique Real Estate	Certificate IV of Property Service	03/2011	Complete	03/2011	08/2011
Ultimo College	Certificate IV of IT Networking	01/2010	Did Not Complete	01/2010	12/2014	12/2010
TAFE Liverpool	English Course	04/2009	Complete	04/2009	12/2009

1. It appears from the course summary that the applicant was not enrolled in a course of study between December 2010 and March 2011 and between December 2012 and April 2013.

2. The applicant’s representative was invited to make submissions to the Tribunal. He declined to do so.

   CONCLUSIONS

3. The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.

4. Without diminishing the applicant’s evidence, it can be summarised as follows.

5. The applicant completed education in Vietnam and then worked as a bookkeeper then as a “game Master” between 2003 and 2009. He arrived in Australia on 1 April 2009. He has returned to Vietnam on four occasions most recently in December 2018. His visa history is as follows: he held three consecutive Subclass 573 higher education visas between April 2009 and 15 March 2017, and he held a Subclass 457 visa between November 2015 and November 2019. His study history is also extensive. He has completed a vocational course in English, a Certificate IV in Property Service, an Advanced Diploma of Accounting, a Diploma of Finance and Mortgage Broking Management, a Certificate IV in Real Estate Practice and an Advanced Diploma of Leadership and Management. He has been enrolled in but not completed, a Certificate IV Information Technology Networking, a Diploma of Information Technology (Multimedia), a Diploma of Management, a Bachelor of Business and a Bachelor of Accounting.

6. The application for the student visa in question was made on 8 November 2019, three days prior to the expiry of the 457 visa. The applicant did not study during the time that he held a 457 visa, namely between 2015 and 2019. He stated that he intends to open a real estate business in Vietnam when he returns. He provided no details of this career path.

7. He has no assets in Vietnam. His wife and two sons reside in Australia. Both his sons were born in Australia. His 10-year-old son has recently become an Australian citizen. The applicant stated that no one else in his family plan to apply to be an Australian citizen.

8. The applicant did not provide any information regarding his family residing in Vietnam. However the Tribunal notes that his father died in 2018.

9. The Tribunal notes in information provided to it prior to the hearing the applicant stated that he would “like to continue studying masters degree in business administration”.

10. The applicant has not explained to the Tribunal’s satisfaction why he has not completed any higher education courses in Australia, why he changed the direction of his study whilst in Australia on several occasions, why he abandoned a Certificate IV Information Technology Networking, a Diploma of Information Technology (Multimedia), a Diploma of Management, a Bachelor of Business and a Bachelor of Accounting, why he did not return to Vietnam when he completed his studies in 2015, why he did not return to Vietnam at the end of the 457 visa, why he applied for another student visa three days prior to the expiry of the 457 visa, why he did not study during the period of the 457 visa, why he chose to reengage with study at the expiry of the 457 visa, why he did not return to Vietnam when the student visa application was refused in 2019, why his son applied for an Australian citizenship but others in his family do not intend to do so, a clear and cogent career path, details of the path, why his existing qualifications and experience are insufficient for him to embark on his career path, the necessity to study his current course especially having regard to his existing qualifications and experience, and why he intends to study further courses in business management once he has completed his current course.

11. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.

12. The Tribunal has considered the applicant’s circumstances in his home country. The applicant is married and is from Vietnam. The applicant has provided no evidence of social, direct family and financial ties to his home country or other economic incentives to return. The Tribunal finds that he has not been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Vietnam.

13. The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 1 April 2009 as a holder of a Subclass 573 visa. The applicant held a total of three such visas between April 2009 and March 2017. The proposed study would extend the applicant’s stay until at least June 2023. The applicant has also expressed intention to study thereafter but has no enrolment. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.

14. The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First, the applicant gave very vague evidence about an intention to establish a real estate business in Vietnam. Secondly, he has provided no details. Thirdly, he has not explained to the Tribunal’s satisfaction why his existing skills and experience obtained in Australia will be insufficient to embark on this vague career path.

15. The Tribunal has considered the applicant’s study history since arrival and notes that he commenced study in 2009, he has not completed any higher education course studying in Australia, and he did not study during the period of the 457 visa, he has changed direction of his study on numerous occasions, he has completed six vocational courses in Australia, he has abandoned five courses of study in Australia including a Bachelor of Business and a Bachelor of Accounting.

16. The applicant relies on a statement in which he addresses the genuine temporary entry criterion. As discussed above it has been taken into account and given appropriate weight.

17. On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has qualifications and experience in the real estate industry in Australia. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.

18. The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant.

19. The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between Vietnam and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to Vietnam. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to Vietnam.

20. The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.

21. The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 1 April 2009 the applicant has spent more than 12 and a half years in Australia and has only returned to Vietnam on four occasions, he has provided no information regarding his immediate family in Vietnam, has no assets in Vietnam, he has not worked in Vietnam since 2009, he appears to have stable employment in Australia, his wife and two sons reside in Australia, he intends to reside in Australia and study at least until June 2023 and perhaps beyond and his eldest son has recently become an Australian citizen, all of which indicates that he does not appear to have strong personal ties to Vietnam. On balance, the Tribunal assesses the applicant’s incentive to return to Vietnam to be minimal.

22. The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted three student visas specifically to enable him to achieve that goal. He was then granted a working visa for four years during which time he did not study. The applicant lodged this application three days prior to expiry of the working visa. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.

23. The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

24. On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.

25. There is no evidence before the Tribunal regarding the following factors indicated by Direction No. 69: economic circumstances of the applicant; any potential military service in Vietnam; political or civil unrest circumstances in Vietnam; remuneration the applicant could expect to receive in Vietnam or a third country compared with Australia; circumstances in Vietnam relative to Australia or any other country; and the applicant’s circumstances in Vietnam relative to others in that country.

26. 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).

27. 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.

28. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

29. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

    Peter Booth
    Member

    
    

    Attachment – Direction No.69

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

    (Section 499)

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

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

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

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

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

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

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

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

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

    Regulations mean the Migration Regulations 1994.

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

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

    Student visa means a Subclass 500 (Student) visa

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

    Application

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

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

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

    Preamble

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

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

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

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

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

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

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

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

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

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

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

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

    The applicant’s circumstances

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

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

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

    The applicant’s circumstances in their home country

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

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

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

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

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

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

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

    The applicant’s potential circumstances in Australia

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

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

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

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

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

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

    Value of the course to the applicant’s future

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

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

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

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

    The applicant's immigration history

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

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

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

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

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

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

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

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

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

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

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

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

    Any other relevant matters

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