WANG (Migration)

[2020] AATA 6154

WANG (Migration) [2020] AATA 6154 (4 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Yujue Wang

CASE NUMBER:  1832888

HOME AFFAIRS REFERENCE(S):          BCC2018/3547121

MEMBER:Frank Russo

DATE:4 January 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 4 January 2021 at 3:10pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – genuine applicant for entry and stay as a student temporarily – study is consistent with the applicant’s current level of education – current studies are of value to future – positive study record –  personal ties to home country – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 500,212

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 October 2018 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 18 September 2018. 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 delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant is a 25-year-old Chinese national. Her Student visa application was in respect of enrolments in a course in English for Academic Purposes and a Master of Business (Enterprise Resource Planning Systems). At the time of the hearing the applicant’s enrolment in the Master of Business had been cancelled and she was enrolled in a Master of Translation and Interpreting, which commenced on 17 February 2020 and was due to be completed on 15 January 2022.

5. The applicant appeared before the Tribunal by telephone on 7 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was assisted in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with the following other documents:

   a.On 16 April 2020 the applicant provided a response to the Tribunal’s invitation to provide information in response to s.359(2), including 23 attachments, which included a completed ‘Request for Student Visa Information’ form, a Genuine Temporary Entrant statement, Confirmations of Enrolment (CoE) for courses in English for Academic Purposes and University English Entry Course, the Master of Business at Victoria University (VU) and the Master of Interpreting and Translating at the University of New South Wales (UNSW), a letter from VU regarding the cancellation of the CoE for the Master of Business, email correspondence with five universities about letters of offer and enquiries as to whether the applicant could study Master degrees at these institutions while holding a Bridging visa, email correspondence from Macquarie University and Western Sydney University (WSU) regarding withdrawals of offers to study at these institutions, IELTS examination preparation notes, IELTS test results, student achievement award from ELSIS English Language Schools, bank account information and multiple examples of assignments submitted for the Master of Interpreting and Translating at UNSW, s well as course information for this course;

   b.On 21 September 2020 the applicant provided a further 16 attachments, including multiple course assignments, a transcript and unit results; and

   c.On 30 November 2019 the applicant provided a further 11 attachments, which included an academic transcript and multiple course assignments.

10. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

    Background

11. The applicant first arrived in Australia holding a Visitor visa on 30 December 2017 and departed Australia on 6 March 2018. She arrived a second time on 11 July 2018 holding a Visitor visa, which was due to cease on 11 October 2018. On 18 September 2018 she applied for the Student visa in respect of her enrolments in English for Academic Purposes and a Bachelor of Business (Enterprise Resource Planning Systems). At the time of the hearing the applicant’s enrolment in the Master of Business had been cancelled and she was enrolled in a Master of Translation and Interpreting, which commenced on 17 February 2020 and was due to be completed on 15 January 2022.

    Applicant’s evidence

12. The applicant told the Tribunal that her first visit to Australia was for tourism and to have fun. She stated that the purpose of her second trip was to study a Masters degree. She stated that she enrolled in a Master of Business at VU and then enrolled in a Master of Interpreting and Translating at UNSW.

13. The Tribunal questioned the applicant about her enrolment in the Master of Business. The applicant stated that at the time her English language skills were not good enough, so she had to undertake a course in English. She stated that her Student visa application was refused, as a result of which VU cancelled her enrolment. She told the Tribunal that she studied the English for Academic Purposes course, but did not complete it as the university ‘refused’ her and she was unable to continue with the course. She stated that VU only accepts international students who hold valid Student visas, so she was not given an opportunity to continue with the English language course or to commence the Master of Business.

14. When questioned why she applied for the Student visa onshore rather than from her home country, the applicant stated that it would have been time consuming to apply for it from her home country. She stated that she intended to complete the course as soon as possible and she did not expect that her visa application would be refused. When questioned when she decided that she wished to study in Australia, she stated that she had the plan before she graduated from her Bachelor degree in China.

15. The applicant confirmed that at the time of the hearing she was enrolled in a Master of Translating and Interpreting at UNSW, which she commenced in February 2020 and is due to complete in January 2022. She stated that she enrolled in this course because it is relevant to her Bachelor of Arts qualification from China, in which she majored in ‘Teaching Chinese to Speakers of Other Languages’, it is her area of interest and she intends to develop a career in this field on her return to China.

16. The Tribunal questioned the applicant about the gap in her enrolments, noting that she had not commence the courses she was due to commence in 2019 (one enrolment for English for Academic Purposes and the Master of Business) and from her own evidence did not study in 2019 or commence studying again until February 2020. The applicant told the Tribunal that after her Student visa application was refused she wanted to study, but could not find a university which would offer her a CoE.

17. The Tribunal raised concern regarding the applicant’s onshore application for the Student visa, and whether it indicated she applied for the visa to maintain ongoing residence in Australia and to circumvent the intentions of the migration program. The applicant confirmed she understood the concern, and stated that she wanted to come to study in Australia as soon as possible and she did not want to waste any time. She stated the only reason for wishing to come to Australia was to study. She stated that her Bridging visa has limitations, such as it does not give her work rights, and so the only useful aspect of her Bridging visa is that it allows her to study.

18. As to the value of the course to her future, the applicant stated that UNSW is a renowned university and its reputation will be a stepping stone for her. She stated that there will be a big market for someone with a Translation and Interpreting qualification from UNSW in China, and the qualification will be well received. She also stated that the teaching is goos at UNSW.

19. As to her plans after she completes her current course, the applicant stated that after graduation she plans to look for translating and interpreting jobs in Shenzen City. She stated that she has done some online research onto roles available there and understands that there is a big market for interpreters and translators, particularly those with translation skills in the legal and medical sectors, which are in demand. She stated that she had some exposure to translating in these sectors with her undergraduate studies, but not enough, which is why she is studying subjects relevant to these fields now. She stated that salaries for interpreters and translators can start at 8,000 RMB per month and then increase with experience.

20. The Tribunal questioned the applicant as to why she had applied for a Master of Business if her interests lie in Interpreting and Translating. She stated that she was equally interested in both, however she received the offer from VU for the Master of Business first, which is why she chose to study that course. She stated that after she accepted the offer of enrolment she also realised that the course included an ICT component, which was not something which she was interested in. The Tribunal raised concern that this may indicate that she had not properly researched the course, which may suggest the enrolment was for the purpose of extending her stay in Australia. The applicant stated that she understood the concern, but that she had undertaken internet research to see what the course would offer. She stated that she had previously had no experience with this kind of course and had a shallow understanding of what some of the subjects were about.

21. The Tribunal questioned the applicant as to why she did not return to China to undertake a Masters degree given the difficulties she experienced in obtaining an enrolment in Australia. The applicant responded that the competition for entry into Masters degrees in China is fierce. She stated that her results from her Bachelor degree were not that good, and that she wanted to get into a good university. She stated that in addition if she had returned to China, it could have taken her three years to obtain a Masters degree. She stated that during the year that she was not enrolled in a course of study, she was trying to get into a university in Australia, and that she has provided evidence to support these attempts. She stated that she had thought about going back to China, but she would have faced the same difficulties there. She stated that other reasons for wishing to study in Australia include the English language environment and the tuition fees are more suitable.

22. The Tribunal raised concern that the applicant’s GTE statement referred to study of a Master of Professional Accounting and a Master of Management Administration at Holmes University, neither course of which the applicant has been enrolled. The Tribunal noted this may cause it to question how much of the statement was written by the applicant. The applicant stated that she was not clear about this, and requested that her agent respond. The applicant’s agent submitted that the statement had been written by the applicant herself, but after this the agent’s office checked the statement and the information about enrolments contained in the last paragraph is a mistake made by the agent’s office. The agent apologised for this and stated that the remaining information in the statement is from the applicant.

23. As to her personal circumstances, [details deleted].

24. The applicant stated that she has a fiancé who lives in Shenzen and that he owns an apartment there. She confirmed that she does not have any property of her own in China or Australia. She provided the Tribunal with details of an Australian bank account. She stated that her fiancé has a stable life in China and their intention is to marry. She stated that have already made plans to marry, but no date has been set. She referred to the border closures as a result of the COVID-19 pandemic.

25. The applicant was asked whether there are any civil or political issues which may prevent her return to China, to which she stated that there are not. [Details deleted].

26. [Information deleted]. She stated that her finace is her closest link to her future, and that he has a stable job in Shenzen, and that she wishes to live with him in Shenzen.

27. The applicant gave evidence that she has not previously had a visa application refused and that she has no outstanding applications for other classes of visa. She gave evidence of an understanding of the conditions of the Student visa and stated that she has not breached the conditions of her current Bridging visa.

    Submissions from the applicant’s agent

28. The Tribunal invited oral submissions from the applicant’s agent and has had regard to these submissions. The applicant’s agent submitted that the applicant had showed her transcript and had passed all of her studies to date at UNSW. She has studied hard for the Master of Translation and Interpreting despite the visa refusal decision. She has provided details of her daily homework records.

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

29. 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?

30. 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.

31. 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.

32. [Information deleted].

33. The Tribunal however also notes the applicant’s claims regarding her continued ties to China, including her evidence of her grandmother remaining in China, and the need to look after her, as well as the evidence regarding her fiancé in China, his stable career and her intention to live with him in the future. The Tribunal accepts this evidence and accepts that these circumstances would provide some incentive for the applicant to return to her home country.

34. There is no evidence of any economic ties to her home country, other than the applicant’s claim that her fiancé owns an apartment and she intends to live with him. [Information deleted]. The applicant does not have work rights under her current Bridging visa and she gave evidence that she has accordingly not worked since arriving in Australia. There is no evidence that she has worked in Australia or been building a career. The applicant claims that she intends to find work in an interpreting or translating role with a multinational corporation on her return to China. The applicant has provided evidence of an Australian bank account, but the Tribunal considers the funds could be easily transferred and do not represent strong evidence of economic ties to any particular country. Overall the Tribunal does not consider there is sufficient evidence to indicate that the applicant’s economic circumstances would act as a significant incentive for her to not return to her home country.

35. [Information deleted]. She gave evidence that there are no civil or political issues which would prevent her return to her home country. [Information deleted].

36. There is no evidence of any military service commitments which would act as an incentive for the applicant not to return to her home country. There is nothing to suggest the applicant has entered into a relationship of concern for a successful Student visa outcome.

37. The applicant has provided reasonable reasons for wishing to undertake the course of study in Australia, and notes that the applicant has consistently applied to study courses at the Master degree level in Australia, with the intention of progressing academically beyond the Bachelor degree which she earned in China.

38. While the applicant’s previous enrolment in the Bachelor of Business, and her evidence that she did not realise this course contained an ICT component until after her enrolment, causes some concern regarding her knowledge of her course of study, the Tribunal is satisfied that the applicant at present has a good understanding of her course in Interpreting and Translating, and that this course is related to and builds upon her previous qualification obtained in China. The Tribunal also notes the applicant’s evidence as to the reasons why she had applied for Business courses, and how she applied for courses in Interpreting and Translating at the same time, and took admission to the Bachelor of Business at VU because it was the first course which was offered to her. The Tribunal accepts this evidence and notes the applicant has provided evidence of application to at least one Interpreting and Translating course prior to July 2018. The Tribunal is satisfied that the applicant is progressing with her current course of study, and therefore makes no adverse findings regarding her knowledge of living in Australia, of her course of study or her education provider.

1. The applicant’s application for the Student visa onshore raises some concerns that the applicant may have made the application for the purpose of circumventing the intentions of the migration programme and to maintain ongoing residence in Australia. In particular, the Tribunal notes the applicant’s arrival in Australia holding a Visitor visa on two occasions within the nine months prior to making the Student visa [application].

2. The Tribunal has also carefully considered the applicant’s enrolment record and raised concerns that she did not study at all in 2019 and did not commence studying again until 17 February 2020. Her current course of study would require her to remain in Australia until at least 15 February 2022, which would extend her stay in Australia to a total of approximately three-and-a-half years.

3. The Tribunal notes however that the applicant has provided evidence of her attempts to enrol in Masters courses with at least five universities in 2019. The Tribunal notes also that the applicant has provided evidence of the withdrawal of letters of offer by WSU in August 2018 and Macquarie University in 2019. In particular, correspondence between the applicant and Macquarie University indicates that Macquarie University withdrew their offer of enrolment because the applicant’s Student visa application had been refused on the grounds that she did not meet the genuine temporary entrant criterion. The Tribunal notes tat all of the applicant’s enrolment enquiries were made to public universities with World University Rankings. She has not enrolled in courses of study at a lower level or in different discipline merely to maintain the enrolment requirement. Accordingly, the Tribunal makes no adverse findings regarding the applicant’s lack of studies during 2019 and notes the difficulties she experienced in obtaining enrolments in universities with world rankings given her visa status.

4. The applicant has provided evidence of her progress with the Master of Interpreting and Translating, which includes results for units of study, as well as providing multiple course assignments. The Tribunal is satisfied that the applicant is conducting herself in a manner consistent with that expected of a genuine student enrolled in full-time study. She has enrolled in a course of study of relevance to her existing qualification and her stated career. She has provided reasons for wishing to study in Australia, and the improvements she is making in her English communication are evident in the copies of assignments which have been provided to the Tribunal. Given her current progress with her studies in this field and her evidence of active engagement with her course, the Tribunal finds there is insufficient evidence that the applicant is at present studying in order to circumvent the intentions of the migration programme or primarily to maintain ongoing residence.

5. As to the value of the course to the applicant’s future, the Tribunal is satisfied that the applicant wishes to study a course which will allow her to progress academically. The applicant has provided multiple copies of assignments which demonstrate that although she has existing skills in translation and interpreting from her undergraduate studies, her skills require further development before she is able to work professionally in this field. Her course of study is relevant to her stated plans to work as an interpreter or translator China.

6. The applicant’s immigration history refers to both her visa and travel history. The applicant first arrived in Australia holding a Visitor visa on 30 December 2017 and departed on 6 March 2018. She returned to China to complete her undergraduate degree and then returned to Australia holding a Visitor visa on 11 July 2018. On 18 September 2018 she applied for the Student visa in respect of her enrolments in English language courses and a Master of Business. Her enrolments in these courses were cancelled by her education provider following the delegate’s decision to refuse her enrolment. In February 2020 she commenced the Master of Interpreting and Translating, and is scheduled to complete this course in January 2022.

7. The Tribunal has addressed above the potential concerns regarding the applicant’s application for the Student visa onshore, her initial enrolment in a Master of Business and her lack of study in 2019 and considers the applicant has provided reasonable explanations and responses to each of the concerns raised. There is no evidence that the applicant has previously had a visa application refused, has any outstanding applications for other classes or visa or has breached the conditions of her visas.

8. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. In the present case, the applicant has been enrolled for approximately 10 months on a course with which she will progress academically and which the Tribunal is satisfied will provide value to her future. Although the applicant previously arrived in Australia on two occasions holding Visitor visas, there is no evidence of non-compliance with any conditions of those visas and the Tribunal considers that the applicant does not have an extensive visa history. She has provided a reasonable explanation for why she now wishes to study in Australia, and has provided extensive additional documents which demonstrate her engagement with her course and the improvements she is making in her translation and interpreting skills. The Tribunal also notes the considerable cost of the Masters program which the applicant has enrolled in, as well as the evidence of the payment of course fees to date. The applicant has not enrolled in a low-cost short course in order to maintain her stay in Australia, but enrolled in a postgraduate course at a university with an international reputation.

9. While the Tribunal notes concern regarding [details deleted], the Tribunal also notes her evidence regarding her relationship with her fiancé and her stated intention to return to her home country following the completion of her course of study. The applicant has not enrolled in a series of courses with no relevance to her stated career plans. Were the applicant not to return to China after completing her current course, this may raise further concerns about her true intentions. However, at the present moment the Tribunal does not find that the Student visa is being used primarily to maintain ongoing residence, but for the applicant’s stated purpose of improving her skills in relation to her existing qualification, with the intention of then establishing a career in China. In considering the applicant’s circumstances as a whole, the Tribunal considers the applicant should be given the opportunity to complete her current course of study.

10. The Tribunal notes that the applicant’s circumstances have altered significantly since the delegate’s decision. with her enrolment in a course of study related to her previous qualification. In addition, she has provided multiple documents which were not available to the delegate, including evidence of course progression. She also gave evidence which was not before the delegate, including that of her relationship with her fiancé who is in China.

11. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.

12. 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?

13. 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.

14. 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).

15. The applicant has provided with her visa application an undertaking to comply with any conditions the subject of which the visa is granted. There is no evidence to demonstrate that this would not be the case. 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).

16. 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?

17. 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)).

18. There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.

19. 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.

20. 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

21. 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.

    Frank Russo
    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.