Wandee (Migration)

[2020] AATA 452

Wandee (Migration) [2020] AATA 452 (20 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Rotjanee Wandee

CASE NUMBER:  1720055

HOME AFFAIRS REFERENCE(S):          BCC2017/2467236

MEMBER:Gregory Sarginson

DATE:20 February 2020

PLACE OF DECISION:  Sydney

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 20 February 2020 at 5:28pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – significant personal ties to home country – regular visits to Thailand – reasons for studying in Australia – employment history – delay in applying for a Student visa – value of course – previous tertiary qualifications – relevance to proposed future employment – 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 July 2017. 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.

3. 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 (the Regulations) because the applicant did not satisfy the general temporary entrant criteria.

4. The applicant appeared before the Tribunal on 18 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. Prior to the hearing, the applicant provided documents to the Tribunal. Such documents relevantly were:

   a)    A copy of the delegate’s decision and reasons dated 25 August 2017.

   b)    A written reply to a request for information from the Tribunal under s 359 (2) of the Act, dealing with issues relevant to the genuine temporary entrant criteria.

   c)    Overseas student confirmation of enrolment (‘CoE’) in respect of a Certificate IV in International Trade at ILSC (Brisbane) Pty Ltd t/as ILSC Business College for the course period 16 September 2019 to 8 May 2020.

   d)    House Registration from Thailand dated 10 October 2005 in the name of the applicant.

   e)    A “Completed High Vocational Certificate” from the Ministry of Education in Thailand stating that the applicant had competed a “High Vocational Certificate” in Business Administration from Srithana Commercial Technology College Chiangmai on 15 March 2004.

   f)     A letter dated 20 February 2018 from Siam Senses Group Pty Ltd in Canberra that the applicant had been employed on a part-time basis as a massage therapist from July 2017 to date, working 20 hours per week.

   g)    Statement of the applicant dated 1 March 2019 addressing the genuine temporary entrant criteria.

   h)    A certificate of ILSC Business College dated 8 June 2018 that the applicant had fulfilled the requirements for a Certificate II in Customer Engagement; and a statement of results in regards to that course.  The statement of results set out 9 subjects/units and that the applicant was “competent” in each of them.

   i)   A CoE from ILSC (Brisbane) Pt Ltd t/as ILSC Business College for the course Diploma of International Business for the course period 22 June 2020 to 20 August 2021.

   j)   A letter from Mr Kitchener of Siam Orchid Traditional Thai Massage (SOTTM Pty Ltd) dated 19 November 2018 stating that the applicant had been working as a massage therapist on a permanent part-time basis since 23 April 2018.

   k)    Marriage registration documents from Thailand stating that the applicant was married on 23 June 2014.

   l)   CoE from ILSC (Brisbane) Pty Ltd t/as ILSC Australia for the course Certificate II in Business for the course period 11 June 2018 to 2 August 2019.

   m)   English Language Certificate from Victory Institute that the applicant completed a General English at Intermediate Level course for the period 27 February 2017 to 14 July 2017.

   n)    A document from Chiang Mail Rajabhat University stating that the applicant had completed a Bachelor of Business Administration dated 23 March 2006.

   o)    Academic transcript from Ciang Mai Rajabhat University for the Bachelor of Business Administration degree.

   p)    Income Tax Return Estimate for 2018.

   q)    Visa grant notice from the Department of Immigration and Border protection dated 11 February 2018 granting a student visa to the applicant’s then husband, with the applicant identified as the secondary applicant.

   r)     CoE from ILSC (Brisbane) Pty Ltd t/as ILSC Australia for the course Certificate II in Customer Engagement for the course period 25 September 2017 to 20 April 2018.

   s)    Confirmation of Enrolment from ILSC Business College dated 21 November 2018 that the applicant was enrolled in the course Certificate III in Business for the course period 11 June 2018 to 12 July 2019 at the Sydney campus.

   t)     Thailand National Identification Card of the applicant.

   u)    Pay record of the applicant from SOTTM Pty Ltd for the pay period 12 November 2018 to 18 November 2018.

   v)    Registration of divorce/Divorce Certificate dated 31 October 2017.

7. At the hearing of the matter, the applicant also provided copies of job matches from the Thailand websites “jobnorththailand.com” and “jobtopgun.com” that she had registered with and received “job lists that match my interest”.

8. Subsequent to the hearing, the applicant provided further documents to the Tribunal.  Relevantly, the documents were:

9. Certificate from ILSC (Brisbane) Pty Ltd t/as ILSC Australia that the applicant had completed a Certificate III in Business dated 16 August 2019.

10. A CoE from ILSC (Brisbane) Pty Ltd t/as ILSC Australia for the course Certificate IV in Business for the course period 16 September 2019 to 8 May 2020.

11. Further copy of a CoE ILSC (Brisbane) Pty Ltd t/as ILSC Australia for the course Diploma of International Business for the course period 22 June 2020 to 20 August 2021.

12. Further statement of the applicant dated 24 September 2019, relevantly stating that the applicant had completed the Certificate III in Business at ILSC and had changed her enrolment from a Certificate IV in International Trade to a Certificate IV in Business.  The applicant stated that she remained enrolled in a Diploma of International Business at ILSC Australia for the course period 22 June 2020 to 20 August 2021.

13. Further copy of the job matches from the Thailand websites “jobnorththailand.com” and “jobtopgun.com” that she had registered with and received “job lists that match my interest”.

14. Subsequent to the hearing, the applicant provided a further written submission by her registered migration agent regarding the information contained in the PRISMS document that had been raised with the applicant at the hearing, stating that the applicant had enrolled in only one packaged course of Certificate II in Customer Engagement; Certificate III in Business; Certificate IV in International Trade; and Diploma of International Business at ILSC College.  The packaged course had been cancelled due to the education provider incorrectly calculating the total tuition fee.  The enrolments were cancelled and then the applicant was re-enrolled immediately, with new CoE’s issued.

15. The submission stated that the applicant had been “progressing well in her studies”; having completed the Certificate II of Customer Engagement and progressing in the Certificate III in Business.  The submission stated that the applicant was a genuine student.  The submission further stated that the applicant was “actively searching for job opportunities in Thailand” which demonstrated a genuine intention to return to Thailand.

16. Prior to the hearing, the Tribunal obtained the following documents:

    a)    Copy of file from Department of Border Protection (previously Department of Immigration and Border Protection).

    b)    Movement records in respect of the applicant’s travel to and from Australia.

    c)    Provider Registration and International Student Management System (‘PRISMS’) record from the Department of Education setting out registered courses in which the applicant had been enrolled.

17. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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 satisfies the genuine temporary entrant criteria under cl. 500.212 of the Regulations.

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

19. 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?

20. 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.

21. 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.

    Applicant’s Evidence

22. The applicant is 36 years old and her home country is Thailand.  She has no children.

23. The applicant arrived in Australia in February 2015 as a dependent spouse to a student visa granted to her then husband.  The applicant stated that she had married her husband in 2014, but there had been a previous “ceremony” in 2010.  The applicant’s then husband was studying English and Business in Australia.  The applicant stated that she had also intended to study for English and Business qualifications in Australia, but had agreed not to study so she could support her then husband in Australia while he studied.  The applicant stated that she and her then husband did not have sufficient financial resources for them both to study at the same time.

24. Prior to arriving in Australia, the applicant had her husband operated a small business employing one person selling stationary and providing photocopying services.  The business had operated for approximately 1.5 years prior to the applicant and her then husband arriving in Australia.  The applicant’s documents contained a certificate of business registration in respect of the business ‘A & B Copy Centre’ dated 18 April 2013.

25. The business also involved a coffee shop, which the applicant’s sister operated.  That business has now been sold.

26. Before being self-employed in this business, the applicant had worked as a receptionist between 2009 and 2013.

27. In respect of tertiary qualifications in Thailand, the applicant had obtained a Bachelor of Business Administration from Chiang Mai Rajabhat University in 2006.  The applicant’s documents contained a copy of her degree and academic record at the University.

28. The original plan of the applicant and her then husband when they arrived in Australia was to return to Thailand and operate “other businesses”.  The applicant could not recall the precise plan as it was “a long time ago”.

29. The applicant’s relationship with her former husband ended in approximately July 2016.  The applicant was granted a certificate of divorce in Thailand in October 2017.  The applicant stated that she has no substantial contact with her former husband and has only seen him a few times since July 2016 so that documents can be signed.

30. In January 2015, the applicant had commenced work as a part-time massage therapist at Neferiti Body and Beauty in Sydney. She worked there until June 2017.

31. The applicant moved from Sydney to Canberra in mid-2017.  The applicant commenced work as a part-time massage therapist at Siam Senses Thai Massage in July 2017 and worked there until February 2018.  The applicant then commenced work at Siam Orchid Traditional Thai Massage in April 2018, and continues to work there. The applicant works part time and stated she complies with visa conditions regarding hours of work. 

32. The applicant’s documents included a 2018 Income Tax Return Estimate stating that the applicant’s gross income for that year was $16,608.  The applicant’s documents also included a payslip from SOTTM Pty Ltd stating her earnings for the pay period 12 November 2018 to 18 November 2018 was $320 pw.

33. A written statement in the of the applicant dated 1 March 2019 stated that following a “miscommunication” at work in 2017 the applicant realised that she needed to improve her English skills to improve her future career prospects.  The applicant stated that she also was interested in business and international trade, and wanted to obtain qualifications in this regard.

34. The applicant stated (both in her written statements and oral evidence) that she had wanted to study in Australia prior to 2017, but could not do so because of her financial situation and supporting her (then) husband in his studies.

35. The applicant stated that she enrolled in a General English course at Victory Institute of Vocational Education Pty Ltd in February 2017.  The applicant completed the course in July 2017.  The applicant’s documents contained a certificate from Victory Institute dated 14 July 2017 stating that the applicant had complete a 20 week course in “General English at Intermediate Level”.

36. The applicant then enrolled in courses at the Sydney Campus of ILSC Business Pty Ltd t/as ILSC Business College in respect of the following courses:

    a)    Certificate II in Customer Engagement;

    b)    Certificate III in Business;

    c)    Certificate IV in International Trade;

    d)    Diploma of International Business.

37. The course at ILSC was a package course; commencing on 25 September 2017.  The applicant provided CoE’s in respect of each of the courses.  Relevantly the periods of enrolment for courses were:

    ·     Certificate II in Customer Engagement was from 25 September 2017 to 20 April 2018;

    ·     Certificate III Business from 11 June 2018 to 2 August 2019;

    ·     Certificate IV in International Trade from 16 September 2019 to 8 May 2020;

    ·     Diploma of International Business from 22 June 2020 to 20 August 2021.

38. At the hearing, the applicant stated that she had completed the Certificate II in Customer Engagement, and her documents contained a copy of the relevant Certificate II from ILSC and an academic transcript.  The applicant stated at the hearing that she was currently studying the Certificate II in Business.

39. After the hearing, the applicant forward a further statement dated 24 September 2019.  The applicant stated that she had completed the Certificate III in Business.  She remained enrolled at ILSC, but had transferred from a Certificate IV in International Trade to a Certificate IV in Business.  The period enrolment in respect of the Certificate IV in Business was the same period as the previous Certificate IV in International Trade course.  The applicant remains enrolled in the Diploma of International Business, with the course concluding on 20 August 2021.

40. The academic record from ILSC in respect of the Certificate III in Business stated that the applicant had completed 12 units and her result was identified as “competent” in each of the units.

41. The applicant stated that her plans for the future were to complete the Diploma of International Business and return to Thailand where she would apply for positions in international companies such as DHL and TNT in respect of transport and logistics.  The applicant stated that she had registered on an internet job site in Thailand, and she had provided copies of jobs that had been notified to her that matched her search criteria.

42. The applicant was questioned about the value of the course to her future in the context of the fact that she was studying at a Certificate/Diploma level, when she had previously obtained a Bachelor of Business Administration.  The applicant stated that her current courses are focussed upon international trade and are complimentary to her previous Bachelor degree qualifications.

43. The applicant was questioned about the reasons why she was not studying in Thailand.  The applicant stated that there were equivalent tertiary courses in Thailand, but they were much more expensive than the cost of studying in Australia for a qualification with “international recognition”.  Further, the applicant stated that it was beneficial to her to study in an English speaking country when she sought to obtain further employment in company engaged in logistics or international trade.

44. In respect of her circumstances in her own country, the applicant’s evidence was that her mother; sister and nephews live in Thailand.  The applicant’s mother is 60 years of age and her sister is 38 years of age.  Her father is deceased, having passed away approximately 9 months after the applicant originally arrived in Australia.  The applicant stated she has no family members in Australia.  The applicant stated she does not send any of her earnings from part-time work in Australia back to her family.  The applicant’s mother owns a house and land in Thailand.  The applicant’s best friend lives in Thailand.

45. In respect of return visits to Thailand, the evidence of the applicant was that she had returned to Thailand in 2015 for 2 weeks to attend her father’s funeral; and had visited Thailand for 1 month in 2016 to see her mother and family.  Since 2017, the applicant had travelled to Thailand approximately once per year to see her family.

1. The applicant was asked further about her circumstances in Thailand.  The applicant stated that Australia was a “good country” but everything was “more expensive” than Thailand. The applicant’s evidence was that she does no face any military service commitments if she returned to Thailand, and there was no relevant political or civil unrest in Thailand.

2. Adopting the procedure in Section 359AA of the Act, the Tribunal informed the applicant that it had a copy of the PRISMS record, and identified to the applicant the contents of the PRISMS record and the relevance of the record.  The Tribunal gave particulars of the information and that the information contained in the document and explained why the information would be the reason, or part of the reason for affirming the decision under review because the applicant did not meet the genuine temporary entrant criteria.  The Tribunal was satisfied the applicant understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the decision that was under review.  The applicant was given the opportunity to comment or respond to the information at the hearing, or seek additional time to comment and respond.  The applicant elected to comment and respond to the information at the hearing.

3. The applicant stated that she had not extended her studies in Australia unnecessarily or for the purpose of continuing to reside in Australia, and each course had taken time.  The applicant stated that the course were “very specific” and “it takes time” to complete the courses. The applicant stated that she had studied “step by step” in accordance with the duration of the courses that ILSC had set out.  The applicant stated that she was in Australia genuinely for the purpose of study and genuinely on a temporary basis, and would return to Thailand upon completion of the Diploma of International Business.

4. As discussed previously, in a subsequent submission to the Tribunal, the applicant’s registered migration agent stated that the applicant had clarified with the agent that course cancellations that were referred to on the PRISMS record were due to the ILSC making an administrative mistake regarding fees, and that CoE’s were cancelled and then re-issued by the education provider. 

5. The submission (and further written statement of the applicant provided after the hearing) asserted that the applicant was a genuine student and that the proposed course of study had significant value to her future plans of returning to Thailand and obtaining employment in a company engaged in international trade or logistics.

6. In respect of the movement records, the records were consistent with the applicant’s evidence about her travel to and from Australia, and there was no adverse information contained in the records.  Accordingly, the procedure in Section 359AA of the Act was not invoked in respect of the movement records.

   Consideration

7. The Tribunal considers the applicant’s evidence in the context of the genuine temporary entrant criteria as follows:

   Circumstances in Own Country

8. The evidence of the applicant is indicative that the economic situation in Australia is more developed than in Thailand.  There is no political or civil unrest in Thailand as a disincentive for the applicant to return to Thailand.  The applicant does not face any military service commitments upon return to Thailand.

9. The personal ties to Thailand of the applicant are significant, in that the applicant’s mother; sister and nephews live in Thailand.  The Tribunal also accepts the applicant’s evidence that since 2016 she has returned to Thailand each year to visit her family.  The personal ties to Thailand of the applicant are greater than her personal ties to Australia, in circumstances where she has no family members living in Australia.  However, the applicant has personal ties to Australia in respect of her consistent work activities as a massage therapist, both in Sydney and in Canberra.

10. The applicant acknowledged that there are similar courses available in Thailand to the package course she is currently studying, leading to a Diploma of International Business.  The main reason provided by the applicant for not studying in Thailand is the cost of studying in Thailand.   The applicant also referred to the benefit of studying in an English speaking country and the quality of the Australian tertiary education system compared to Thailand.

11. The applicant has advanced reasons as to why she is not studying in her own country.  Weighed against the reasons and evidence advanced by the applicant is that (i) she accepts that there are equivalent courses available in Thailand; (ii) the current courses in which the applicant is enrolled are at Certificate and Diploma level, rather than at the level of a Bachelor’s degree or Masters degree; (iii) the applicant has previously completed a Bachelor’s degree in Thailand (although in 2006) and has been able previously to successfully complete tertiary study in her home country.

    Personal Circumstances in Australia

12. The evidence of the applicant was that she has no family ties in Australia, and the Tribunal accepts that she has significant family ties to Thailand.   The movement records and the applicant’s evidence demonstrate that she has made regular visits to Thailand, which is indicative  that her ties to Thailand are more extensive than her ties to Australia.

13. Weighed against that is the fact that the applicant has resided in Australia since 2015.  The applicant has worked in Australia consistently over a number of years, firstly to support herself and her then husband, and then to support herself, while residing in Australia.  The applicant has also been able to move residence from Sydney to Canberra, and establish herself living in Canberra while travelling to Sydney to attended classes at ILSC.

14. There are no secondary applicants to the application, so this factor is irrelevant.

15. The applicant denied that she is using the student visa to maintain ongoing residence in Australia.  The Tribunal has concerns in this regard, considering that the applicant has previously obtained tertiary qualifications in Thailand at a Bachelor’s degree level; worked in Thailand firstly as a receptionist and then in her own business before arriving in Australia; and did not make an application for a student visa over two years after arriving in Australia.

16. However, weighed against that is the applicant’s evidence that she wished to study when she arrived in Australia, but was financially supporting her former husband which was a barrier to her applying for a student visa.  The Tribunal accepts that there are logical and coherent reasons why the applicant was not studying in the period from  2015 to 2017.

17. In respect of her current studies, the Tribunal accepts that, due to her absence from study in the period between 2006 and 2017, there is a logical explanation for her commencing study at a Certificate level and progressing to a Diploma level.  Further, the Tribunal accepts that since she enrolled in study in Australia, she has not failed courses nor changed courses in a manner indicative of using the student visa simply to maintain ongoing residence in Australia.  Since commencing study, the applicant has completed the subjects she has been enrolled in.

18. The applicant also clearly stated in her evidence that she intends to return to Thailand upon completion of the Diploma of International Business in August 2021, and that her intention is not to remain in Australia for the purpose of study or for any other purpose.

    Value of Course to Applicant’s Future

19. Qualifications at a Certificate and Diploma level are lower than the applicant’s previous tertiary qualifications in 2006 at Bachelor’s degree level.  However, weighed against that is the explanation given by the applicant as to why she had not studied in the period from 2006 to 2017, and that she believed it was necessary due to such a delay to commence studies at a Certificate level, progressing to the Diploma of International Business.

20. In respect of her future plans, the Tribunal accepts that the course has relevance to her proposed future employment.  The applicant has explained the type of employment she is seeking upon return to Thailand, and provided evidence of job advertisements for employment in Thailand that was consistent with the qualifications that she will obtain upon completion of the Diploma of International Business.

21. The Tribunal accepts that the course of study has significant relevance to the applicant’s future employment prospects in her own country.

    Applicant’s Immigration History

22. The Tribunal has previously set out the applicant’s visa and travel history for Australia and other countries.  The travel history and previous visa applications is not inconsistent with the applicant being a genuine temporary entrant.

    Conclusion

23. Having considered and weighed the above factors, the Tribunal is satisfied that the evidence preponderates in favour of the applicant satisfying the genuine temporary entrant criteria.

24. On the basis of the above, the Tribunal is 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?

25. 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.

26. 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).

27. The applicant’s evidence was that she had complied and intended to comply with visa conditions.  The applicant is currently enrolled in a registered course of study and has demonstrated consistent course progress and course attendance.  The applicant’s evidence was that she had complied with and continues to comply with work limitation conditions.

28. On the basis of the above, the Tribunal is 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?

29. 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)).

30. There are no other relevant matters.

31. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

32. 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

33. 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.

    Gregory Sarginson
    Member

    
    

    Attachment – Direction No.69

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

    (Section 499)

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

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

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

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

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

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

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

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

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

    Regulations mean the Migration Regulations 1994.

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

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

    Student visa means a Subclass 500 (Student) visa

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

    Application

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

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

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

    Preamble

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

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

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

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

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

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

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

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

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

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

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

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

    The applicant’s circumstances

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

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

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

    The applicant’s circumstances in their home country

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

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

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

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

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

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

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

    The applicant’s potential circumstances in Australia

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

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

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

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

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

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

    Value of the course to the applicant’s future

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

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

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

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

    The applicant's immigration history

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

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

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

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

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

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

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

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

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

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

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

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

    Any other relevant matters

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