Wu (Migration)

Wu (Migration) [2022] AATA 2721 (2 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ho Wu
REPRESENTATIVE:  Mr Qiao Wei (MARN: 1386743)
CASE NUMBER:  2114251
HOME AFFAIRS REFERENCE(S):          BCC2021/329855
MEMBER:Peter Booth
DATE:2 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 02 August 2022 at 10:09am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – long residence, multiple visas and courses at various levels and in different subject areas, with some uncompleted – value of course to applicant’s future – vague evidence and unsatisfactory explanations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulation 1994 (Cth), Schedule 2, cl 500.212(a)
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 28 September 2021 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 6 March 2021. 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 the applicant was not a genuine temporary entrant.
The applicant appeared before the Tribunal on 29 April 2022 to give evidence and present arguments.
The applicant was assisted in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant gave evidence at the hearing, the substance of which was as follows.
The applicant had read the delegate’s decision dated 28 September 2021 refusing his application for a student visa.
The applicant understood that the issue for determination was whether he was a genuine temporary entrant.
The applicant was asked to describe his current enrolment including commencement and completion dates. The applicant said “diploma of interpreting starting this year and end June 22”. He did not elaborate. The Tribunal observed that the enrolment document stated that the course would be completed in September 2022. The applicant responded “end September 22”.
The applicant had produced a confirmation of enrolment document to the Tribunal in respect of such a course. Notwithstanding the vague nature of the applicant’s evidence the Tribunal accepts that he is enrolled in the course described in the confirmation of enrolment.
The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2).
In summary the information provided by the applicant was as follows.
The applicant completed “high school” in Hong Kong between September 2001 and June 2006. He did not disclose any employment history prior to arriving in Australia.
The applicant arrived in Australia on 26 August 2006 and since that time has returned to Hong Kong on numerous occasions as follows: in January 2007 for 32 days, in July 2007 for 16 days, in December 2007 for 60 days, in December 2008 for 57 days, in June 2010 for 31 days, in October 2010 for 10 days, in February 2011 for 16 days, in June 2011 for 17 days, in February 2012 for 18 days, and in June 2013 for 25 days. The applicant has not returned to Hong Kong since June 2013.
The application for the student visa in question was made in March 2021. The applicant stated his visa history in Australia to be as follows: he held a “573” visa, between August 2006 and September 2011, a “573” visa between November 2011 and March 2014, a “573” visa between July 2014 and March 2016, a “457” visa between April 2015 and April 2019 and a “500” visa between May 2019 and March 2021.
The applicant stated his study history in Australia to be as follows: he completed an “English-language” course between August 2006 and March 2007, a “foundation course” between April 2007 and December 2008, a Certificate IV in University Foundation between February 2010 and October 2010, a Diploma of Commerce between June 2010 and June 2011, a Bachelor of Commerce between July 2011 and June 2013, another Bachelor of Commerce between February 2014 and December 2015, a Bachelor of International Business between November 2014 and March 2019; he enrolled in a Master of Marketing and Public Relations in August 2019 but did not complete it; he completed a Diploma of Leadership and Management between June 2020 and May 2021; he completed an Advanced Diploma of Translating between May 2021 and November 2021; and had a future enrolment in a Diploma of Interpreting due to commence in January 2022 and be completed in July 2022.
The applicant stated that he was employed as a “consultant” by “H&T Realty” between January 2017 and November 2019 from which he derived an annual salary of AU$21,700.
The applicant stated that his mother and brother reside in Hong Kong.
The applicant did not disclose ownership of any assets in Hong Kong.
As to his future employment plans the applicant stated:
Based on my education back ground and skills gained from my courses in Australia I have 2 options for my careers: A. Help my mother to run and expand our family business. I majored in leadership, international business and related studies in Australia, and completed Bachelor degree (Major in International Business), because these relevant qualifications and skills enable me to help my mother run a logistics company more efficiently. Leadership and management skills can help manage the company's structure and allocate company resources reasonably, such as personnel allocation. As an important resource of a logistics company, it is very important to allocate container trucks and driver schedules. During the pandemic, the company strategically controlled the number of manpower and car loans to a minimum. After the economy picks up, the company will recruit talents and container truck resources again. How to maximize and rationally allocate limited human resources and container resources will determine whether the company can survive. Maximize the efficiency of logistics and transportation with the most reasonable resources and time schedule of container trucks. In terms of recruiting talents, we use probationary or group management methods instead of traditional interviews to recruit new talents and expand the company's structure. As a logistics company, the professional content of International Business course enables me to face the corporate cultures and ways of doing things in different countries, and avoid missing out on investment opportunities due to differences in regional cultures and causing unnecessary losses to the company. I can also learn about imported and exported products in different regions, discover new business opportunities, and expand our business. To achieve the above points, to connect my mother's logistics company with international standards, to be able to understand and convey the content of business partners to the team, the translation skills that I have acquired in NATTI ( my current courses) are essential. Because I would suggest that the company’s talent structure should be based on actual performance capabilities. As a society with a Chinese background, I can translate English commercial content or terms into Chinese, which can provide great value to the company and the team. After experiencing the tremendous changes brought about by the Pandemic in the society, I am more deeply aware that although I now have some professional knowledge , I really hope and need to be able to improve my studies and professions in Australia in order to be to expand my family's business in Hong Kong better. B. Work as a senior government officer in HK. I have detailed the expected salary below for this type of job. and why my study helps my job application.
As to his expected future remuneration the applicant stated:
To become a civil servant in Hong Kong has the following requirements: 1. Undergraduate major requirements. In 2019, I have completed the Bachelor Degree of La Trobe University and got the graduation certificate 2. English proficiency requirements-IELTS average score of 6.5 and each subject above 6 points. After translation course my IELTS score has reached the standard in April this year (Listening 6.5 Reading 8.0 Writing 6.0 Speaking 6.5 Overall 7.0). 3. Must be a permanent resident of Hong Kong Reference: Following are the expected salary for various civil roles in Hong Kong Dollar per month Administrative office ($55,995–$110,170) Executive office ($31,750–$55,995) Immigration Service Officer ($41,380–$76,095) Inspector of police ($50,200–$91,615) Valuation Surveyor ($48,540–$64,270) Reference: >
The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary were as follows.
The applicant confirmed that he arrived in Australia on 28 August 2006 as the holder of a Subclass 573 student visa. When asked what he intended studying he said “foundation core and English-language course for half year before foundation course”. The Tribunal observed that he had stated that he held a Subclass 457 visa between April 2015 and April 2019. The applicant agreed. In answer to a question from the Tribunal he confirmed that this was a graduate phase.
The Tribunal observes that he enrolled in the Master of Marketing and Public Relations in August 2019 but did not complete it. The applicant agreed. When asked when he ceased studying that course he said “wanted to improve leadership skill”. The question was repeated and he said “after second semester in 2020 in March because of Covid outbreak I decide to go back to Hong Kong, I decided to change to more quiet environment, I moved to Tasmania”. He was asked whether he abandoned the course or was excluded from it. He said “when I was studying they focus on marketing course I really interested in was leadership and management”. He was asked why he enrolled in the Master of Marketing if he was interested in leadership and management. He said “I think marketing is important, I think my family is traditional and old school, marketing important, when I study found what they thought I had studied in bachelor course”.
The Tribunal observed that he had changed the direction of study then to translating and interpreting. He said “I found the family business are logistics company, they need to talk to supplier from foreign country, and in China, both difference in English in Chinese, often need it to have a translator, quite a cost to the company”. He was asked how many years he had studied English. He said “more than 10 years”. When asked whether the study was undertaken in Australia he said “yes”. He was asked whether he studied English in Hong Kong. He said “yes high school”. When asked how many years he studied English for in Hong Kong he said “six years”. The Tribunal observed that he has studied English for a total of 16 years. The applicant agreed. He was asked to state his native language. He replied “Cantonese”. When asked whether he spoke, read and wrote Cantonese fluently he said “yes”. The Tribunal asked the applicant what language he was studying his courses in. He said “English to Chinese Mandarin”.
He was asked how many employees work in the logistics business. He said “10 people in back-office, 20 or 30 drivers to deliver to China, or in high season”. The Tribunal asked what the language of commerce was in Hong Kong. He said “Cantonese and Mandarin”. He was asked whether he could speak Mandarin. He said “yes”. When asked whether he was fluent in Mandarin he said “I’m not sure I could be, but okay for basic communication”. When asked whether he had studied Mandarin he said “no”. He was asked whether he read and wrote Mandarin. He said “yes”. He was asked whether he could do this fluently. He said “I can read okay but writing okay again after interpret course”. The applicant was asked whether his family company uses written agreements with customers and suppliers. He said “yes”. He was asked to state the language used in those written agreements. He said “English, Chinese traditional and also Mandarin Chinese”. He was asked how long the family business had been in operation. He said “2002”. The Tribunal asked the applicant why he needed to study vocational courses in translating. He said “because only speak Cantonese and Mandarin, English only for daily usage, but need to run family company, I need to improve English skill, and also needs certificate of translation and can be submitted to government office”.
He was asked whether he obtained professional employment during the period of his graduate visa. He said “no”. He was asked what he did during the period of his graduate visa and he said “Study for business course”. The Tribunal asked the applicant why he applied for a graduate visa if he intended to study. He said “when first applied at this didn’t think much of it, then decided to keep study”.
He was invited to explain the change in level of study from Bachelor level to vocational courses. He said “I didn’t know vocational courses different level, I just seek content that I needed”.
He was asked why he did not return to Hong Kong permanently when the student visa application was refused. He said “because I would like to finish course”.
He was asked whether he was currently employed in Australia. He replied “no”. When asked whether he had ever been employed in Australia he said “no”.
The Tribunal observed that he had stated in information supplied to the Tribunal that he was employed as a consultant in the realty firm between 2017 and 2019. He said “it was not permanent, two days a week”. When asked whether he had any other jobs in Australia he said “no”.
The applicant was asked whether he owned any assets in Hong Kong in his name. He said “my family have two properties, will be changed to my name after I run company”.
He was invited to explain his career intentions when he returns to Hong Kong. He said “take the company’s director, since my mother [wants] to expand company”.
The Tribunal observed that in a statement he had said that he had sold a property in 2019 and intended to leave Australia but did not do so. He was asked to explain why he did not leave Australia at that time. He said “plan to go back early 2020, [but] covid-19 happen, family say should keep improving skills, I decide to stay”. The Tribunal asked, if he had only stayed because of COVID-19, why had he not left Australia when he was able to and he replied “study course need extra skills”.
The applicant was asked whether he had applied for permanent residency in Australia. He said “no”. When asked whether he intended to apply for permanent residence in Australia he said “no”.
The applicant declined an opportunity to add anything further to his application for review.
The applicant’s representative declined an opportunity to make submissions to the Tribunal.
Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes several observations in relation to those documents. The applicant asserts that his mother visited him in Australia on several occasions and provides several travel documents, largely in Chinese, to support the contention. These are difficult to follow however the Tribunal accepts that the applicant’s mother has visited him in Australia on several occasions, perhaps in 2014, 2016 and 2018.
Prior to the hearing the applicant provided two statements in support of his application for review. The first statement is signed and dated 10 January 2022, but without page numbers or paragraph numbers. The second statement is titled “Study history in Australia” and dated 23 March 2022. It is signed but has no page or paragraph numbers. The statements were not referred to by the applicant during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal observes that the first statement is generally consistent with the applicant’s evidence at the hearing. The second statement is in the following terms:
My name is Ho Wu, I came to Australia for education in 2006 after I graduated from middle school in Hong Kong. The main reason for my going overseas instead of studying in Hong Kong was that I wanted to learn within a western culture and background. My family business was a logistic and import/export business, and as the founder - my mother wanted me to be her successor, so it required me to have more experience from overseas culture and excellent English skill. At the same time, I would need to have knowledge and skills in management and leadership to be the director of my family business.
I chose Australia because of it was an extremely great example of multicultural environment, and geographically, Australia was much closer to Hong Kong than other western countries such as US, UK, or Canada.
2006 AUG– 2007 JAN
English Language Course – Taylor’s College
Taylor’s College was providing a foundation course for University of Sydney. The English course was the first course since I arrived in Sydney, because I needed to improve my English skill to match the education level in Australia.
2007 FEB – 2009 NOV
Extend Foundation Course – Taylor’s College
When I finished my English course in January 2008, my second course was an under-graduate course of commerce. My main studies included further improvement of English skills, mathematic skills, Australian society, and culture, and basic economic and accounting knowledge, building a foundation for me for an education at university level.
2010 FEB – 2010 JUN
Certification IV – Sydney Institution of Business and Technology
When I completed my foundation course of Taylor’s College, I decided to go to Macquarie University for its famous commerce faculty and bachelor’s degree of Commerce. I was a transfer student from University of Sydney Foundation Course, therefore I had to study a foundation course of Macquarie University which was SIBT before I could commence my university course. Certification IV was a half year course, and it mainly reinforced my knowledge from my previous study.
2010 JUN – 2013 NOV
Diploma of Commerce / Advance Diploma of Commerce - Sydney Institution of Business and Technology
After completing the Certification IV course, I continued to study in an advanced diploma of commerce course from SIBT, which gave the same credit scores as 1st Year study at Macquarie University. It gave me a very solid knowledge of accounting skill, concept of marketing and knowledge of economic.
2014 FEB -2014 JUL
Bachelor of Commerce (Marketing) – Macquarie University
After completing the advanced diploma course, I continued my study at Macquarie University for a bachelor’s degree of commerce and my major was in marketing. I understood that marketing was important in modern internet world, and since I would be the 2nd generation director of my family business, I would have to learn and apply some new marketing methods into the business for business expansion. That was the main reason I chose to major in marketing for my bachelor’s degree.
2014 OCT – 2018 DEC
Bachelor of Commerce (International Business) – La Trobe University
After the first semester of studying in Macquarie University, I learned advanced knowledge and skill of marketing and promotion. I felt that I had gained the necessary knowledge of marketing. I found that in all previous courses I had only focused on economic concepts and marketing knowledges, I would need to understand and adapt to different cultures to run a logistic company, especially since my family business was in Hong Kong, which was a bridge between the Western Countries and China. I decided to transfer to Latrobe University which was famous for its International Business course and Macquarie University cancelled this major. When I studied in La Trobe University, I learned and studied organisational behaviour, management and leadership, and international management. All these courses gave me the skills and knowledge about how to manage a company and lead staff and how to communicate, adapt and connect to different cultures.
2019 APR – 2019 JUL
General English and Diploma of Interpreting – Australian Ideal College
After I completed the bachelor course and while waiting for my graduation ceremony, I applied for a translation course from AIC, I felt that I not only needed to improve my English skill, but I also needed to have a translation skill, because from what I saw, my family business would be focused in expanding to more international customers. The company would need a person to coordinate orders and translate legal documents from English to Chinese for Chinese boarder custom. Besides I found that more and more financial institutions and even government positions requiring translation skills. If I could obtain a translation certificate, it would give me a competitive advantage for my business or helping me find other jobs of interest in Hong Kong.
2019 AUG – 2020 MAR
Master of Business – Top Education
During 2019 I felt that I could apply for a Master course and have further study for management and leadership skill. Therefore, I applied and studied a Master of Business course at Top education for a semester.
2020 JUN – 2021 MAR
Diploma of Leadership Management – Australian Ideal College
In early 2020 I wanted to move away from busy Sydney to Tasmania, partly to avoid Covid. After I moved to Tasmania, I decided to study a management course at AIC Tasmania campus. I needed to learn more skills to run my family business, I continued to study management and leadership, and this time, this course was more practical and closer to the real-life experience about how to manage a company, such as office skill, meeting, and conference arrangements.
2021 MAY – 2021 DEC
Advanced Diploma of Translation – Australian Ideal College
After I finished my Leadership Management, I decided to keep improving my translation skill, because I found that my pervious interpreting course was only basic and could not provide me with enough competitive advantage to be a qualified translator of documents or working for my family business. My mother had to deal with many clients who spoke English and wanted to talk to her in person, but she wasn’t a good English speaker. I wanted to be more supportive to her and make ensure that business meetings can run smoothly, I decided to study in a course in advanced Diploma of translation.
2022 MAR – Date
Diploma of Interpreting - Australian Ideal College
After completing the diploma of translation course, I decided to continue my translation study. I aim to complete my diploma of Interpreting course and be ready to apply for a professional and international translation certificate which could provide me with competitive advantage not only in communicating with customers and translating documents for my family company, but also in finding other jobs of interest in Hong Kong.

The Tribunal observes that the second statement does not explain why the applicant enrolled in a Master of Marketing and Public Relations but did not complete it.
CONCLUSIONS
The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.
Without diminishing the applicant’s evidence, it can be summarised as follows.
As detailed above, the applicant completed education in Hong Kong in 2006. He has not disclosed any employment history in Hong Kong. He arrived in Australia on 26 August 2006 as the holder of a Subclass 573 student visa. He has returned to Hong Kong on numerous occasions since 2006 but not since 2013. His mother has visited him in Australia, apparently in 2014, 2016 and 2018. He stated his visa history as follows: he held a “573” visa between August 2006 and September 2011, a “573” visa between November 2011 and March 2014, a “573” visa between July 2014 and March 2016, a “457” visa between April 2015 and April 2019 and a “500” visa between May 2019 and March 2021.
As also detailed above, he stated his study history to be as follows: he completed an “English-language” course between August 2006 and March 2007, a “foundation course” between April 2007 and December 2008, a Certificate IV in University Foundation between February 2010 and October 2010, a Diploma of Commerce between June 2010 and June 2011, a Bachelor of Commerce between July 2011 and June 2013, another Bachelor of Commerce between February 2014 and December 2015, a Bachelor of International Business between November 2014 and March 2019; he enrolled in the Master of Marketing and Public Relations in August 2019 but did not complete it; he completed a Diploma of Leadership and Management between June 2020 and May 2021; he completed an Advanced Diploma of Translating between May 2021 and November 2021; and is currently studying a Diploma of Interpreting which started in January 2022 and is scheduled to be completed in September 2022. The applicant did not obtain professional employment whilst he held a graduate visa but elected to study instead.
The applicant has been employed in Australia as a real estate consultant between 2017 and 2019. His brother and mother reside in Hong Kong; his mother conducts a logistics business in Hong Kong which he intends to join on his return to Hong Kong. The applicant does not own any assets in Hong Kong. The applicant has changed the direction and level of his study whilst in Australia on several occasions. He intends to study in Australia until at least September 2022 if permitted.
The applicant has not explained to the Tribunal’s satisfaction why he did not return to Hong Kong permanently when his graduate visa expired, why he did not return to Hong Kong permanently when his student visa application was refused, why he has changed the level of his study while in Australia, why he has changed the direction of his study on several occasions, why he did not complete the marketing and public relations course, why he did not return to Hong Kong permanently when global travel restrictions were eased, why he requires a further qualification in translation, why he requires any qualifications in translation having regard to his fluency in English, Cantonese and Mandarin, and why his existing skills and experience are insufficient for him to embark on his chosen career path.
In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Direction. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from Hong Kong. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to Hong Kong, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Hong Kong.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 28 August 2006 as a holder of a Subclass 573 student visa. The proposed study would extend the applicant’s stay until at least September 2022. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. While plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.
The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. Whilst the applicant has explained generally that he intends to join the existing family business in Hong Kong and perhaps play a role in translating documents for communicating with contractors and suppliers he has not explained why his existing skills and experience are inadequate for him to embark on that plan. In that regard the Tribunal notes that the applicant has extensive qualifications obtained in Australia; he has stated that he is fluent or reasonably fluent in English, Chinese and Mandarin and he has completed several translation qualifications in Australia. He has not explained why he needs a further translation qualification in order to assist in the well-established family business.
The Tribunal has considered the applicant’s study history since arrival and notes that he commenced study in Australia in 2006 and intends to reside in Australia until at least September 2022 for the purposes of study. This would mean that the applicant has been residing in Australia for the purposes of study or pursuant to the terms of a graduate visa for more than 16 years. The applicant’s pattern of study and length of time during which he has resided in Australia is strongly suggestive of the person who is intent on stay in Australia by any means possible rather than a person who is a genuine temporary entrant.
The Tribunal observes the applicant’s current study plan is inconsistent with his plans when he entered Australia.
On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and having regard to the applicant’s existing skills and experience. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.
The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant.
The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between Hong Kong and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to Hong Kong. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to Hong Kong.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 26 August 2006 the applicant has spent approximately 16 years in Australia and has not returned to Hong Kong since 2013; he has no employment history in Hong Kong and owns no assets in Hong Kong, all of which indicates that he does not appear to have strong personal ties to Hong Kong. On balance, the Tribunal assesses the applicant’s incentive to return to Hong Kong to be minimal.
The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted several student visas specifically to enable him to achieve that goal. Having regard to the applicant’s study history and visa history it appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.
The Tribunal has considered all the information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.
There is no evidence before the Tribunal regarding the following factors indicated by the Direction: economic circumstances of the applicant; any potential military service in Hong Kong; political or civil unrest circumstances in Hong Kong; remuneration the applicant could expect to receive in Hong Kong or a third country compared with Australia; circumstances in Hong Kong relative to Australia or any other country; and the applicant’s circumstances in Hong Kong relative to others in that country.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Peter Booth
Member

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

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

[2022] AATA 2721

2 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice