Tsang (Migration)

Tsang (Migration) [2024] AATA 1088 (22 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Wun In Tsang
REPRESENTATIVE:  Mr Cheah Quee Brian Chan (MARN: 2217857)
CASE NUMBER:  2308795
HOME AFFAIRS REFERENCE(S):          BCC2023/2830337
MEMBER:David Thompson
DATE:22 April 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 22 April 2024 at 3:03pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Diploma of Early Childhood Education and Care – borderline case – Direction No 108 – circumstances in home country – potential circumstances in Australia – value of the course – immigration history – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
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 29 May 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 May 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because he was not satisfied that the applicant intended genuinely to stay temporarily in Australia.
The applicant appeared before the Tribunal on 10 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
The applicant was assisted in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the requirements of cl 500.212.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘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 relevantly identical to the superseded Direction No 69, is attached to this decision. It 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.
Evidence
As well as giving evidence orally at hearing, the applicant provided the following items of documentary evidence to the Tribunal:
a.the delegates decision record and notification letter, both dated 29 May 2023;
b.a completed ‘Request for Student Visa Information’, provided in response to a request made by the Tribunal on 22 August 2023 pursuant to s 359(2) of the Act;
c.Confirmation of Enrolment (CoE) E4901445, recording the applicant’s enrolment in a Diploma of Early Childhood Education and Care scheduled to run from 29 May 2023 to 25 May 2024;
d.screenshots from the applicant’s student portal showing the applicant's current and completed course units, and her classes;
e.a certificate of completion of a Certificate III in Early Childhood Education and Care, issued to the applicant by Australian Institute of Workplace Training and dated 27 April 2022, with completion letter and record of results attached;
f.a schedule of course fees charged by the Kingston International School Hong Kong, downloaded from the Internet on 9 May 2023;
g.identification pages from the applicant’s Hong Kong Special Administrative Region, People’s Republic of China passport;
h.a letter dated 27 May 2017 from the Department to the applicant, informing her of the grant to her of a TU-500 temporary student visa;
i.a letter dated 11 March 2020 from the Department to the applicant, informing her of the grant of a Bridging C visa;
j.a letter dated 21 October 2021 from the Department to the applicant, informing her of the grant of a further TU-500 temporary student visa, valid until 7 December 2022;
k.CoE 8C5FF158, recording the applicant’s enrolment in a Certificate IV in Leadership and Management, commencing on 22 May 2017 and finishing on 12 January 2018;
l.CoE 8C600694, recording the applicant’s enrolment in a Diploma of Leadership and Management, commencing on 6 March 2018 and finishing on 7 December 2018;
m.CoE A888F716, recording the applicant’s enrolment in ENG0317 Comprehensive English at Skills Institute Australia, commencing on 29 April 2019 and ending on 16 February 2020;
n.CoE B5FBA926, recording the applicant’s enrolment in ENG0317 Comprehensive English at Skills Institute Australia, commencing on 16 March 2020 and ending on 12 June 2020;
o.CoE BC679845, recording the applicant’s enrolment in General English at Australian Institute of Language and Further Education, commencing on 7 September 2020 and ending on 9 October 2020;
p.CoE BC2E5B25, recording the applicant’s enrolment in a Certificate III in Early Childhood Education and Care at Australia-International Institute of Workplace Training, commencing on 12 October 2020 and finishing on 8 October 2021;
q.CoE D0712029, recording the applicant’s enrolment in a Certificate III in Early Childhood Education and Care at Australia-International Institute of Workplace Training, commencing on 9 October 2021 and finishing on 24 April 2022;
r.CoE D0715A31, recording the applicant’s enrolment in a Diploma of Early Childhood Education and Care at Australia-International Institute of Workplace Training, commencing on 25 April 2022 and finishing on 7 October 2022;
s.CoE D8DC3851, recording the applicant’s enrolment in a Diploma of Early Childhood Education and Care at Australia-International Institute of Workplace Training, commencing on 10 October 2022 and finishing on 21 April 2023;
t.CoE E4901445, recording the applicant’s enrolment in a Diploma of Early Childhood Education and Care at Stanley College, commencing on 29 May 2023 and finishing on 24 May 2024;
u.the applicant’s resume, undated but on internal evidence prepared after May 2023;
v.a letter from Bilingual By Five addressed ‘To whom it may concern’, undated but confirming the applicant’s performance in a work placement starting in February 2022, and her performance as a casual educator from August 2022;
w.a screenshot showing the applicant’s account balances with the Commonwealth Bank of Australia, undated;
x.screenshots of text messages from and to the applicant’s father between 26 October 2021 and 23 January 2023 in Chinese characters, untranslated;
y.a lease agreement between the applicant as tenant and Esther Yueng as landlord in respect of premises in Morley, Western Australia, executed on 25 December 2022;
z.the applicant’s parents’ Hong Kong Permanent Identity Cards;
aa.written submissions provided by the applicant’s representative, dated 20 October 2023, to which numerous documents were attached (and are listed in the following subparagraphs to the extent that they were not already provided separately listed above);
bb.the applicant’s high school graduation certificate dated 1 June 2007;
cc.CoE 76EC0928, recording the applicant’s enrolment in a Certificate II in Spoken & Written English, scheduled to run from 2 November 2015 to 11 June 2016;
dd.CoE 76EC2581, recording the applicant’s enrolment in a Certificate III in Spoken & Written English, scheduled to run from 11 July 2016 to 25 February 2017;
ee.a certificate of completion of a Certificate III in Spoken and Written English, dated 18 April 2017 and issued to the applicant by Australian Institute of Commerce and Technology, with statement of results attached;
ff.a certificate of completion of a course in Comprehensive English, dated 30 July 2020 and issued to the applicant by Skills Institute Australia, with statement of results and completion letter attached;
gg.a record of results for a Certificate III in Early Childhood Education and Care dated 27 April 2022, and issued to the applicant by Australian Institute of Workplace Training;
hh.a Department of Immigration and Border Protection notification of grant of a TU-570 ELICOS sector student visa to the applicant, dated 13 October 2015;
ii.a Department of Immigration and Border Protection notification of grant of aTU-500 student visa to the applicant, dated 27 May 2017;
jj.a Department of Home Affairs notification of grant of a TU-500 student visa to the applicant, dated 21 October 2021;
kk.an email dated 29 October 2018 from Australian Institute of Commerce and Technology (AICT) to undisclosed recipients, informing of cancellation of that institution’s registration;
ll.a letter to the applicant dated 20 October 2022 from Australian Institute of Workplace Training (AIWT) confirming the issue of an extension CoE to the applicant in a Certificate III of Early Childhood Education and Care course so that she could complete workplace placement requirements previously impossible due to the COVID-19 pandemic;
mm.a Stanley College application for recognition/credit transfer completed by the applicant in dated 16 May 2023;
nn.an article entitled ‘Local vs International Schools in Hong Kong – which is better?’, downloaded from on 20 October 2023;
oo.a copy of the Bilingual by Five staff handbook (revision 9), undated;
pp.a copy of an article entitled ‘Hong Kong’s Education Market – Trends and Opportunities’, appearing in Dezan Shira and Associates China Briefing, downloaded on 20 October 2023;
qq.a page downloaded from on 20 October 20 to 3 regarding kindergarten English teacher salaries in Hong Kong;
rr.positions vacant listing for English-speaking kindergarten teachers in Hong Kong downloaded from on 20 October 2023;
ss.a series of advertisements for English-speaking tender garden teacher positions downloaded on 20 October 2023 from article entitled ‘Multicultural Talent Pool’, downloaded from on 20 October 2023; and
uu.a Bilingual by Five payslip issued to the applicant for the period 8 August 2022 to 21 August 2022.
Prior to constitution of this review application, the Tribunal obtained their Departmental file in relation to the applicant’s visa application. That file contains the following relevant documents provided by the applicant to the Department:
a.the applicant’s student visa application, lodged 20 May 2023;
b.an offer letter and written agreement from Stanley College to the applicant dated 18 May 2023, offering her a place in a Diploma of Early Childhood Education and Care course;
c.a letter dated 16 May 2023 from Australian Institute of Workplace Training to the applicant stating that she has not completed the requirements for a Diploma of Early Childhood Education and Care as a full-time international student; and
d.a Genuine Temporary Entrant statement prepared by the applicant, undated.
Where I refer to any of the documents listed above in the course of these reasons, I refer to that document using its paragraph number above. Thus, the document noted in paragraph 11(a) is referred to simply as ‘document 11(a)’, and so on for the other documents.
Prior to hearing, I obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). It was not necessary, given the manner in which the hearing unfolded, to put any information from the applicant’s PRISMS record to her pursuant to s 359A of the Act.
Consideration
Background
The following paragraphs 16 to 41 contain my findings of fact on certain background matters relevant to the disposition of this review application.
The applicant is a citizen of the People’s Republic of China, haling from the Hong Kong Special Administrative Region.
She first arrived in Australia on 26 September 2013, as the holder of a working holiday visa. She was granted a further such visa on 16 September 2014, valid until 26 September 2015.
On 23 September 2015, the applicant applied for a student visa, in order to pursue the following package of courses:
a.Certificate II in Spoken and Written English, originally scheduled to run from 2 November 2015 to 11 June 2016, but after a number of administrative course variations from 2 November 2015 to 5 April 2016; and
b.Certificate III in Spoken and Written English, originally scheduled to run from 11 July 2016 to 25 February 2017, but after a number of administrative course variations from 25 September 2016 to 22 January 2017.
The applicant was granted a TU-570 temporary student visa on 13 October 2015.
The applicant departed from Australia on 29 May 2015, and returned on 13 June 2016.
On 25 April 2017, the applicant applied for a further student visa. At that time, she was enrolled in the following package of courses:
a.Certificate IV in Leadership and Management, scheduled to run from 22 May 2017 to 12 January 2018;
b.Diploma of Leadership and Management, scheduled to run from 6 March 2016 to 7 December 2018; and
c.Advanced Diploma of Leadership and Management, scheduled to run from 28 January 2019 to 3 January 2020.
She was granted a TU-500 student visa on 27 May 2017, valid until 3 March 2020.
She completed her Certificate IV in Leadership and Management, but her Diploma and Advanced Diploma enrolments were cancelled on 19 November 2018, because her course provider defaulted.
The applicant then enrolled in and completed a course in Comprehensive English at Skills Institute Australia. That course was delivered between 29 April 2019 and 16 February 2020.
On or about 3 March 2020 the applicant enrolled in a further Comprehensive English course, again at Skills Institute Australia. That course was scheduled to run from 16 March 2020 to 12 June 2020.
From 9 March 2020 to 11 March 2020 the applicant remained in Australia as the holder of a bridging visa D.
On 11 March 2020, the applicant applied for a further student visa. She was granted a bridging visa C whilst her application was being considered.
The applicant successfully completed her second Comprehensive English course on or about 12 June 2020.
On or about that date, she enrolled in the following package of courses:
a.Certificate IV in Business, scheduled to run from 13 July 2020 to 8 January 2021;
b.Diploma of Business, scheduled to run from 11 January 2021 to 9 July 2021; and
c.Advanced Diploma of Business, scheduled to run from 19 July 2021 to 15 July 2022.
The applicant did not start studying these courses, and her enrolments were cancelled on or about 30 July 2020. Instead, on or about 17 August 2020 she enrolled in the following courses at Australia-International Institute of Workplace Training:
a.Certificate III in Early Childhood Education and Care, scheduled to run from 12 October 2020 to 8 October 2021; and
b.Diploma of Early Childhood Education and Care, scheduled to run from 11 October 2021 to 7 October 2022.
On or about 24 August 2020, she enrolled in a General English course with a different provider, scheduled to run from 7 September 2020 to 9 October 2020. She completed that course and commenced her studies in Early Childhood Education and Care on schedule.
On 21 October 2021, the applicant was granted a second TU-500 student visa, valid until 7 December 2022.
The applicant’s enrolment in Certificate III in Early Childhood Education and Care was extended towards the scheduled end of the course, and a further CoE issued covering the period 9 October 2021 to 24 April 2022. At the same time or shortly afterwards, her course provider issued her a fresh CoE for Diploma of Early Childhood Education and Care, covering the period 25 April 2022 to 7 October 2022.
The applicant completed her Certificate III in Early Childhood Education and Care on 27 April 2022. On or about that date, she commenced her Diploma studies.
On or about 19 October 2022 the applicant’s course provider issued her an new CoE for her Diploma of Early Childhood Education and Care, covering the period 10 October 2022 to 21 April 2023.
In or about December 2022 the applicant applied for a fourth student visa. She was granted a bridging visa C on 29 December 2022.
The applicant was granted another (a third) TU-500 student visa on 20 February 2023, valid until 21 May 2023.
On or about 22 May 2023, the applicant applied for a fifth student visa, and was granted a bridging visa A.
In or about early May 2023, the applicant changed course provider from AIWT to Stanley College.
On or about 24 May 2023 Stanley College issued her a CoE for her Diploma of Early Childhood Education and Care, this time covering the period 29 May 2023 to 24 May 2024. This is the applicant’s current CoE.

The applicant’s student visa application was refused on 29 May 2023, and she applied to the Tribunal for a review of the delegate’s decision on 19 June 2023.
The applicant’s circumstances in her home country
The applicant gave evidence at hearing that she has family members in Hong Kong, being her parents, elder brother, and sister. She stated that she last saw them in May 2016, when she returned to Hong Kong for that purpose. This is the only travel that the applicant has declared in document 11(b), and on that basis, I find that it is the only journey she has made since first coming to Australia. She gave evidence that she contacts the family regularly using WhatsApp video calls approximately once per fortnight, but also contacts them between those calls using text messages and similar means of communication. There is some documentary evidence before me of text messages between the applicant and her father (document 11(x)), but that evidence is untranslated and restricted to a few days of the very long period during which the applicant has been resident in Australia. For these reasons, I am not able to make any findings as to the nature or frequency of that form of contact on that basis. I accept, however, that the applicant is in periodic contact with her family.
The applicant also gave evidence that she maintains contact with a group of alumni from her high school. She did not say how often she does so, or by what means. The evidence before me is insufficient to allow me to come to any view of the strength of this particular community tie.
I find that the applicant does have personal ties with Hong Kong. However, particularly in view of the length of time the applicant has been absent from Hong Kong, I find that those ties are not so strong as to amount to a significant incentive to return there once she has finished her studies in Australia.
The applicant gave evidence, which I accept, that the highest level of education she completed before coming to Australia was the completion of high school in Hong Kong. She stated, and I also accept, that she worked as a salesperson for five years for living Hong Kong for Australia. In document 11(b), she has given evidence that she started work as a salesperson in October 2007, and left her first job to work as a salesperson in a boutique in October 2011, where she stayed until July 2013. The applicant came to Australia approximately two months later. The applicant has stated in evidence, and I accept, that she has no property in Hong Kong. In these circumstances I find that the applicant has only minimal economic ties with Hong Kong. However, I also find that there is no evidence before me suggesting that she has any positive economic reason to avoid returning to Hong Kong.
The applicant stated at hearing that she has no military service obligations to perform on her return to Hong Kong. She also stated that she had no concerns regarding civil or political unrest in that region. Given the well-publicised civil unrest that had occurred in Hong Kong in 2019 and 2020, at least before the advent of the COVID-19 pandemic, I pressed her on this at hearing. She admitted that there had been such unrest, but said that she was not concerned about it because of family was not involved in it. I accept the applicant’s evidence as regards military service obligations. I am less prepared to accept that the applicant has no concerns whatsoever regarding the political situation in Hong Kong. Whilst you may well have no major concerns in that regard, I found that the situation must almost necessarily give her some disincentive to return, albeit only a relatively minor disincentive.
I asked the applicant at hearing whether she could study similar courses to those he is currently undertaking in Hong Kong. She said that she was unsure whether such courses were available, but that speaking generally international qualifications are better regarded than domestic qualifications in Hong Kong, and parents prefer to have their children educated overseas, or at least by people with international qualifications. The applicant would not appear to have seriously considered studying Early Childhood Education and Care in Hong Kong. Given the amount of time she has been in Australia, and the explanation recounted earlier in this paragraph, this is not particularly surprising. I find that in the applicant circumstances it was reasonable for her to decide to pursue these courses in Australia, and do not put any great weight on the fact that she does not appear to have considered enrolling in their equivalents in Hong Kong.
Taking these matters together, I find that the applicant circumstances in her home country give only minimal support to her claim to intend to genuinely to remain in Australia temporarily.
The applicant’s potential circumstances in Australia
The applicant stated in evidence that she has no family in Australia. There is no evidence before me to the contrary, and I accept this to be the case. Nor is there any evidence before me that the applicant has any significant community ties to Australia. In her oral evidence she said that the extent of her community ties is represented by friendly relations with her housemates and with some of her fellow students. I find that the applicant has no personal ties to Australia that would give her any significant incentive to remain in this country which is finished her studies.
The applicant gave evidence, and I accept, that she has no property in Australia. She stated at hearing that she has held some casual positions in hospitality businesses in Australia, most recently a business known as Café Mulberries. The evidence was that she worked there between April 2021 and July 2022. She stated that since then, she has been working as a casual educator for a bilingual childcare business known as Bilingual By Five. This is confirmed by document 11(v), a letter in the nature of a reference., However, makes it clear that the applicant is in a position to obtain such work in Australia. In document 11(b), the applicant states that she has been earning an annual salary of $20,059 in that position. Whilst the evidence before me does not allow me to form any view as to the amount the applicant would earn if she worked full-time in that a similar position, it is clear that she is in a position to find remunerative employment in the childcare sector in Australia. I find that this circumstance, at least, gives her an economic tie with Australia.
The applicant stated at hearing that she had previously entered into a relationship in Australia, but that her relationship had ended some considerable time ago and that she was not currently in any relationship. There is nothing in the evidence before me to suggest otherwise. I find that the applicant a party to a relationship of concern in Australia, in the sense of a relationship contracted or contrived to improve her chances of a successful visa application outcome, or of remaining in Australia buying other means. There is no direct evidence before me that the applicant is using the student visa program to maintain residence in Australia, or that she was attempting to circumvent the intentions of the Australian migration program and any other way. That does not mean, of course, that such inferences could not be drawn indirectly from the evidence before me.
The applicant has resided in Australia since 2013. She has had ample opportunity to experience life, work, and study in this country before making the student visa application the refusal of which gave rise to this review. It does not, in those circumstances, assist me in making my decision to consider the level of preparedness for life in Australia before that date.
The applicant has pursued Early Childhood Education and Care studies with two providers: initially, AIWT and, more recently, Stanley College. She has provided both oral and written evidence about her choice of course providers for her Early Childhood Education and Care studies.
As regards her choice of AIWT, her evidence was, in essence, that she had accepted her agent’s recommendations. She also stated that she did not visit the provider’s premises before and rolling, but did review their online materials before making a final decision. This evidence needs to be viewed in the context of some details of the applicant study history provided in her written evidence. In document 11(b), she describes the problems she experienced at the previous course provider, when it transpired that the provider’s registration had been cancelled. This is corroborated by document 11(kk). The applicant stated that she was left in the position of having paid significant course fees for a course of study she would not be able to finish and which (she judged) would be of dubious utility to her in any event. In these circumstances, it is clear that her reliance on her agent’s advice had much to do with finding a course provider with as lower risk of deregistration as possible. This is not something that anyone in the applicant’s position could be expected to investigate by the means of inspecting premises and facilities and speaking with staff, or by speaking with former students or considering reviews. In these circumstances, I do not consider that the relative lack of personal research the applicant appears to have made into AIWT detracts from her claim to intend genuinely to remain in Australia temporarily as a student.
The applicant explained in evidence why she left AIWT for Stanley College. The explanation was that AIWT had been unable to offer the workplace-based practical units that were part of her course due to conditions prevailing in the COVID-19 pandemic, and did not propose to make those units available once it was possible to do so. For that reason, she decided to move to Stanley College. This is corroborated to some extent find document11(ll), but not entirely. More to the point for current purposes, the applicant has not stated why she chose Stanley College, beyond the fact that it was able to offer the full range of course components she required. However, document 11(mm) supports her basic contention that she has moved to that institution in order to finish her studies, rather than to maintain residence. I accept that that is the case.
It follows that the only element of the evidence before me relevant to the applicant’s potential circumstances in Australia that would suggest that she might not intend genuinely to remain in Australia temporarily is the fact that she has obtained work in Australia in her chosen field, and therefore as some economic ties to Australia. I do not, however, consider that to be a particularly strong indicator on its own. I find that the applicant’s potential (and indeed, actual) circumstances in Australia are more consistent with her being a genuine temporary entrant than not.
The value of the applicant’s courses for her future
The applicant’s highest level of educational achievement before arriving in Australia was her completion of secondary school in 2007 (see document 11(bb). She is currently studying at Diploma level, a level higher than any of her educational achievements in Australia. There can, therefore, be no question of her having regressed in level of study.
The applicant stated hearing that her plan upon finishing her current course is to return to Hong Kong to work in the childcare and education sector, and particularly that part of the sector that caters to parents wanting multilingual (specifically, English) education for their children. Her current course and many of her previous courses are directly relevant to this plan.
The applicant has given evidence, both orally and in documentary form, that if she obtains the type of employment she will be seeking, she can expect to earn HK$20,000 and 30,000 per month. That may be slightly less than she could earn work in the area in Australia, but is clearly considerably more than she was earning working in Hong Kong as a sales assistant (approximately HK$13,000 per month). Further, the applicant’s Australian qualifications must or must necessarily improve the chances of remunerative employment in Hong Kong given that she has no other post-secondary qualifications.
Our find that the applicants courses are likely to be of value to her in her home country. This supports her claim to intend genuinely to remain in Australia temporarily.
The applicant’s immigration history
The applicant gave evidence that, apart from her journey to Australia, she has also visited Japan and mainland China. She stated that she has never previously been refused a visa, has never had any visa issued to her cancelled, and has no other Australian visa application on foot at present. There is no evidence to the contrary before me, and I accept the applicant’s claims in this regard. There is no evidence before me suggesting that the applicant has breached their immigration laws of Australia or any other country.
The applicant has now resided in Australia for approximately 10 ½ years. That is a considerable period of time to remain in this country as a temporary visitor. It is therefore relevant to consider the manner in which the applicant has used her time in this country. My findings of fact relevant to this question are set out in paragraphs 16 to 41 above. The applicant spent the first two years of her time in Australia on working holiday visas. There is nothing before me to suggest that she was engaged in any activity contrary to the intent of those visas. From 2015 to 2017, the applicant was enrolled in English studies. Judging from the fact that she completed all of the causes and which was enrolled, it would appear that she applied itself to those studies. Between May 2017 November 2018 the applicant was enrolled in a package of leadership and management courses. She did not complete those courses, but as the reason her enrolments were cancelled without her provided defaulted, this can hardly be taken to reflect badly upon her. On the applicant’s evidence, she became disillusioned with leadership and management studies, finding them lacking in content or usefulness in later life. Whether such assessments are reasonable would depend entirely on the personal circumstances of the student in question. There is nothing in the evidence before me to suggest that the applicant declined to return to study in that area for an L2 area purpose, and I am not prepared to find that the applicant’s assessment in this respect was erroneous. The applicant then undertook further English studies between April 2019 June 2020, which she completed successfully. At the end of those studies, she contemplated undertaking courses in business, but decided that she would rather study Early Childhood Education and Care, as providing her with more concrete employment prospects in her home country. The applicant made that decision quite early in the piece, and in the event did not spend any time studying business courses. The applicant’s progress in her Early Childhood Education and Care studies has been slower than might be ideal, but on the evidence before me that appear to be a result of the COVID-19 pandemic. In conclusion, I find that the applicant has used her time in Australia to some effect, and as best she has been able to. In those circumstances, I am not prepared to find that the sheer length of the applicant’s stay in Australia to date indicates an intention to stay in this country permanently or indefinitely.
Conclusion on cl 500.212(a)
As will be apparent from my consideration of the evidence, this is something of a borderline case. However, I consider that the evidence more strongly supports the applicant’s claim to intend to remain in Australia temporarily than it does the contrary proposition.
On that basis, I am satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl 500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The applicant demonstrated at hearing that she was aware of and understood the nature of the conditions that would be imposed on any further student visa issued to her. She gave a positive undertaking to comply with those conditions. There is nothing in the evidence before me to suggest that the applicant has breached any of the conditions placed on any previous visa granted to her.
On that basis I am satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
The only other relevant matter arising on the evidence before me is that the applicant is now only approximately five weeks away from completing her course. Given the conclusion I have arrived at as to her intention to remain in Australia temporarily, it would be unreasonable to deny her the opportunity to do so, even though I have characterised this matter as a borderline case. If the applicant, having been given that chance, sought to undertake further studies in Australia would be a matter of considerable concern, and might well lead to a different conclusion. However, there is no residence before me that the applicant is intending to do so. The fast-approaching end of the applicant’s studies, and the lack of any indication that she intends to extend them, is a further reason to find that she meets the requirements of cl 500.212.
Accordingly, I am 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 appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
David Thompson
Member

Attachment – Direction No.108
DIRECTION NUMBER 108 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 21 March 2024
Clare O’Neil
Minister for Home Affairs and Cyber Security
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 - Preliminary
Name of Direction
This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 108.
Commencement
This Direction commences on 23 March 2024.
Revocation
Direction No. 69, given under section 499 of the Act, is revoked.
Interpretation
Act means the Migration Act 1958.
Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.
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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).
This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.
This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.
Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
Preamble
The Australian Government operates a student visa program 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 program 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 - 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 or Student Guardian 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 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.
iii.b. Previous travels to Australia or other countries, including:
iv.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;
v.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
vi.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
vii.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 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.

[2024] AATA 1088

22 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Appeal