Yang (Migration)

[2024] AATA 278

Yang (Migration) [2024] AATA 278 (30 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jeongkyu Yang
Mrs Mihyun Choi

REPRESENTATIVE:  Mr Kyu Man Hwang

CASE NUMBER:  2203247

HOME AFFAIRS REFERENCE(S):          BCC2021/15001

MEMBER:Frank Russo

DATE:30 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 30 January 2024 at 10:24am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – Diploma in Christian Ministry and Theology – reasons for not undertaking the proposed courses of study in home country – length of stay in Australia to date – timing of application for the Student visa – presence of strong family ties in Australia – value of the course – immigration history – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 February 2022 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 January 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant is a 54-year-old national of South Korea. The second-named applicant is the applicant’s wife, a 52-year-old national of South Korea. The Student visa application was made in respect of the applicant’s enrolments in the Diploma in Christian Ministry and Theology, Advanced Diploma of Christian Ministry and Theology, Graduate Certificate in Christian Ministry and Theology and Graduate Diploma of Christian Ministry and Theology at Hope College. At the time of the hearing, the applicant had completed the Diploma course, was studying the Advanced Diploma course and had confirmations of enrolment (CoE) for the Graduate Certificate and Graduate Diploma courses.

5. On 19 December 2023, the applicant’s representative wrote to the Tribunal to advise that the applicant was changing his education provider because of the closure of Hope College, and provided copies of CoEs for the Advanced Diploma of Christian Ministry and Theology from 29 January 2024 to 29 June 2025 and the Graduate Diploma of Christian Ministry and Theology from 14 July 2025 to 28 June 2026, both at Iona Columba College.

6. The applicants appeared before the Tribunal on 30 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

7. The applicants were assisted in relation to the review. Their representative also attended the hearing by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In addition to the application for review, the applicant provided the Tribunal with copies of the delegate’s decision and notice of the decision from the Department.

11. On 23 May 2023 the applicant provided the Tribunal with a s.359(2) response, which included the following documents:

    a.A completed ‘Request for Student Visa Information’ form;

    b.CoEs for the following courses, issued by Hope College:

    i.Diploma in Christian Ministry and Theology from 1 February 2021 to 2 December 2022;

    ii.Advanced Diploma of Christian Ministry and Theology from 31 January 2023 to 6 December 2024;

    iii.Graduate Certificate in Christian Ministry and Theology from 28 January 2025 to 4 July 2025; and

    iv.Graduate Diploma of Christian Ministry and Theology from 15 July 2025 to 3 July 2026.

    c.Academic records from Hope College from 2021 to 2023;

    d.Submission by the applicants’ representative, dated 22 May 2023; and

    e.Information regarding the salary of church pastors, from >

    The applicant provided a response to the hearing invitation. On 22 August 2023 her provided further copies of the above CoEs from Hope College, together with the following additional documents:

    a.Certificate of attendance from Hope College, dated 9 August 2023;

    b.Record of subjects completed in the Advanced Diploma of Christian Ministry and Theology as at 9 August 2023; and

    c.Award of the Diploma of Christian Ministry and Theology, awarded by Hope College on 10 January 2023.

12. 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, which include a system generated copy of the applicant’s Student visa application, copies of the applicants’ Korean passports, a family composition booklet, evidence of overseas student health cover, an undated GTE statement from the applicant and a letter from Pastor Sangduk Choi, Hoju Korean Church, dated 15 April 2021.

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

13. 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?

14. 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.

15. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    Applicant’s evidence at the hearing

16. The applicant told the Tribunal that he arrived in Australia for the first time on 22 October 2012. He stated that he came to Australia at that time because he has two sons, one of whom was born with a condition which required him to have surgery three times. He gave evidence that he found it hard to raise a child with a disability in South Korea and was often called into his son’s school by teachers. He considered that Australia would be a better place to raise his child. He also stated that in South Korea he had been working in IT and networking, and he had to give up this career for his son. He stated that in his new environment in Australia, his son did well at school and did not experience prejudice from his teachers.

17. The applicant stated that when he first arrived in Australia, he held a Student visa as a dependant of his wife. His wife then decided to study Theology and obtained a ‘Religious visa’, which she used to complete her Bachelor degree.

18. The applicant confirmed that he has a Bachelor of Biology from South Korea. After completing military training, he worked for a pharmaceutical company, then in bio-engineering, and then from 1997 in IT. He worked as an assistant engineer and then developing IT programs for agencies, as well as working in systems management solutions.

19. As to why he has now decided to study courses in Christian Ministry and Theology, the applicant stated that he had been attending his church for seven years. His pastor asked him to work in a youth group for over 18s. He stated that he did not have any qualifications, so he wasn’t sure how he would do this kind of work, so he had discussions with the pastor and prayed to God. He stated that he believes this is a mission which God has given him. He wanted to study the Bible systematically. He stated that he looked at courses and found that if he studies at Hope College, he will be endorsed by the Presbyterian community in South Korea.

20. The applicant stated that after he completes his proposed courses of study, he will return to South Korea. From 2026 to 2028 he intends to work as a pastor. Then he plans to work internationally doing missionary work, and from 2030 he plans to work as a hospital pastor. From 2036 he plans to in ministry counselling, such as helping with people with drug addictions. He stated that to become a pastoral counsellor he needs to study Theology. He stated that there are many fields of pastoral counselling that he can go into, such as working with children, with families or with people with drug addictions. He stated that he strongly wishes to work in the field of immigration counselling, as when people move to other countries, they can experience problems such as relationship issues, drug and alcohol issues, employment and business issues. He stated that he believes this is his mission from God, and that he received this message in his prayers. He stated that he has also gained a greater appreciation or impression of the Bible. He has read the Bible previously, but now he has a fresh understanding. He is also hearing the different interpretations from his teachers, and he wishes to be like them. Each Wednesday he is the lead singer in church, and he has also led the Sunday service three times. He stated that these services have been filmed and are available on Youtube.com and that he also has a disc containing supporting evidence of his participation in services.

21. As to why he decided to study the proposed courses of study in Australia rather than South Korea, the applicant stated that he first decided to study Theology in the middle of the COVID-19 pandemic, when times were very difficult. He stated that there would also be obstacles for him studying in South Korea because tertiary students there are young. He would need to take a tertiary entrance test again, which would be unrealistic for him. He has also consulted many people in Australia about the courses, and has been told that the qualifications would be recognised in South Korea.

22. As to his personal ties to South Korea, the applicant stated that his mother lives there. She has visited the applicant in Australia several times, the last time being in 2018. She is now in a nursing home. He gave evidence that his brother died of COVID-19 in winter 2021. When asked whether his only immediate family in South Korea is his mother, he responded yes. The applicant stated that his wife’s family are all in South Korea, including her mother, brother, sister, sister-in-law and nephews and nieces. He confirmed that he and his wife both have cash assets and no property in South Korea.

23. The applicant confirmed that his wife and two sons are present in Australia. His sons were aged 22 and 24 at the time of the hearing, and both arrived in Australia with the applicant in 2012. He confirmed that he operates a cleaning business in Australia, which he has run since 2015. He stated that his wife is not currently working. She worked as an apprentice pastor from 2016 to 2022 when she held her ‘Religious visa’. The Tribunal noted the applicant’s s.359(2) response indicates he has no community ties in Australia, but put to him whether he is a member of a church or religious community in Australia, which he confirmed is the case. When asked whether he has any community ties in South Korea, the applicant’s representative submitted that the applicant has been living in Australia since 2012, so he cannot have strong community ties in South Korea.

24. The applicant gave evidence that he has not returned to South Korea since 2012. The Tribunal put to the applicant a concern that this may indicate that his ties to South Korea may not act as an incentive for him to return there. The applicant responded that he did not return to South Korea because of his sons and their education. His second son was shy and the applicant had to drop him off at school and pick him up each day at the request of his son’s teachers. He stated that now that his mother is in a nursing home and his brother recently passed away, he plans to return to South Korea because of his mother. He also stated that the situation with COVID-19 is not as serious as before.

25. The applicant confirmed that there were no other relevant matters that he wished to raise. At the end of the hearing, the Tribunal put a number of other concerns to the applicant as a matter of procedural fairness, and gave him the opportunity to comment or respond to each. These included the length of the applicant’s stay in Australia to date, as well as the length of his proposed stay in Australia, the timing of his application for the Student visa and whether his intention in applying for the Student visa is to maintain ongoing residence in Australia, the presence of strong family ties in Australia, concerns regarding his economic circumstances, including the presence of his business in Australia, the limited personal ties that he has to South Korea, and insufficient evidence regarding the proposed renumeration he could earn by using the qualifications from his proposed courses of study in his home country and the value of the courses of study to his future in general. The applicant’s responses to each of these concerns are set out in my findings below regarding the factors set out in Ministerial Direction No. 69.

26. The Tribunal notes that while the second-named applicant attended the hearing, the applicant did not request that she give evidence and the Tribunal had no questions for her.

    Oral submissions from the applicant’s representative

27. The applicant’s representative was invited to make oral submissions at the conclusion of the applicant’s evidence, and gave the following submissions. He submitted that if the applicant were not a genuine student he would not enrol in courses of study or would not study. He submitted that the applicant is 52 or 53 and if he wished to study in South Korea, he would have to pass the high school certificate again, whereas he has the opportunity to study in Australia without this hurdle.

28. The applicant’s representative submitted that there is a very different culture and cultural systems in Korea. When the applicant’s older brother was alive, his older brother had filial duties towards his parents, which included taking care of their mother. Now that his older brother has passed away, these duties have passed onto the applicant, and the applicant has strong reasons and incentive for returning to Korea. He submitted that the applicant has a sister in Korea, as well as a sister in Australia, however these filial duties do not get passed on to daughters.

29. The applicant’s representative submitted that the applicant has been running a cleaning business in Australia since 2015 and gave up his professional career in South Korea, where he earned more than what he is currently earning in Australia. He submitted that the applicant could earn more, but has instead worked as a cleaner or labourer, and therefore submitted that the applicant’s purpose in staying in Australia has not been motivated by money, and that his economic circumstances should not be regarded as strong ties to Australia.

30. The applicant’s representative submitted that it is hard to research the potential remuneration that will be available to the applicant in his home country as not many positions are available. He submitted the Tribunal should take into account the relative cost of properties in South Korea, which are half to one-third of the cost of those in Sydney, so it cannot be said that the applicant would make more money staying in Sydney than he could returning to South Korea.

31. The applicant’s representative noted the applicant has been in Australia for approximately 11 years, and if the Student visa were granted, he would remain for 14 to 15 years, but submitted that the applicant initially came to Australia because of his children, and then his wife was granted a temporary visa, and he stayed with his wife and sons to support them. He submitted that even though the applicant has stayed in Australia a long time, this should not be of concern, as the applicant has a different profession in South Korea and he has been spending a lot while he has been in Australia.

    Findings regarding the factors in Direction No.69

32. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account all the relevant information, the Tribunal is not satisfied that the applicant meets the genuine temporary entrant criterion. This finding is based on several factors.

    The applicant’s circumstances in his home country

33. I accept the applicant has some family ties to South Korea, including the presence there of his elderly mother, who currently resides in a nursing home. I accept the applicant’s evidence that his brother recently passed away during the COVID-19 pandemic, and that his priority is now to return to South Korea to see his mother. I accept his statement in his s.359(2) response that he contacts his mother each week by phone and SMS. I also accept the submissions made by the applicant’s representative, that the applicant now has a responsibility to look after his mother, following the death of his older brother. The applicant did not mention in his s.359(2) response that he has any other siblings in South Korea, however I accept his evidence that one of his sisters is in South Korea. I also accept that the applicant’s wife’s family are in South Korea, including her mother, siblings and nephews and nieces. I accept that these ties, in particular the presence of the applicant’s mother and the filial obligations that he has towards her under Korean culture, would act as an incentive for the applicant to return to his home country, and I take this into account in assessing the applicant’s circumstances as a whole.

1. The applicant confirmed that he has no assets in South Korea, although he stated that he and his wife have savings in Australia, which add up to the amount specified in his s.359(2) response. The applicant declared in his s.359(2) response that he has no community ties to South Korea, and his representative also submitted that the applicant does not have such ties as he has been living in Australia since 2012. The applicant claims that he intends to work in South Korea as a pastor from 2026 to 2028, following which he intends to work internationally, before returning to South Korea to work as a hospital pastor and then in other roles in the ministry. There is no evidence that the applicant has any current employment ties or employment offers in South Korea and he last worked in South Korea in 2011. I have had regard to the applicant’s previous employment in South Korea in the IT and pharmaceutical industries, as well as his claims in his s.359(2) response that he worked there as a team leader, manager and assistant manager, but note that over 12 years have passed since he worked in South Korea. I find there is nothing to indicate that he has current employment ties to his home country. I also note that the applicant has not returned to South Korea since October 2012. While I have had regard to his reasons for not returning to South Korea, this suggests that his ties to South Korea may not act as a strong incentive to return there on completion of his proposed studies.

2. On this occasion I make no adverse findings regarding the applicant’s economic circumstances. As noted above, there is no evidence that the applicant or his wife have any assets in South Korea and the applicant has no current employment ties to South Korea, and these may support a finding that the applicant’s economic circumstances would present as an incentive for the applicant not to return to his home country. I also have concerns that the applicant has been operating his own cleaning business in Australia since 2015, however, I also note the applicant’s s.359(2), where he indicates that he has been earning in the range of $14,000 to $23,000 per year. He claimed that his health is not so good, so he has not been working much. I accept that the applicant’s business is unlikely to provide a strong incentive for the applicant to not return to his home country. I note the applicant’s evidence that his wife is not currently working, and she previously worked as an apprentice pastor. Given this evidence, I make no adverse findings regarding the applicant’s economic circumstances.

3. I accept the applicant has provided reasonable reasons for not undertaking the proposed courses of study in his home country. In particular, I accept that to commence similar studies in South Korea, the applicant would need to once again complete a high school certificate, whereas he is able to enrol in vocational studies in Australia. I also accept that tertiary courses in South Korea are geared towards recent high school graduates, and there may be difficulties for the applicant in attending such courses. I have also had regard to the reasons provided by the applicant in his s.359(2) response, his GTE statement and the written submission from his representative. I accept the applicant’s claims regarding his interest in the teachings of certain Australian pastors.

4. There is no evidence of any military service requirements. The applicant confirmed at the hearing that there are no civil or political issues which would act as an incentive for him to remain in Australia. There is no adverse evidence before the Tribunal regarding the applicant's circumstances in South Korea, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

   The applicant’s potential circumstances in Australia

5. The applicant’s movement record indicates that he first arrived in Australia on 29 March 2010, holding a Visitor visa, and remained in Australia for approximately one week, departing on 6 April 2010. He returned holding a second Visitor visa on 29 March 2011, and departed on 28 June 2011. He then returned holding a third Visitor visa on 11 October 2012. He was then granted a Student visa as a dependant while onshore on 19 December 2012. The applicant has not departed Australia since his arrival in October 2012. He was granted a Temporary Work (Long Stay Activity) visa (Subclass 401) on 29 April 2016. He was then granted a Temporary Activity visa (Subclass 408) on 11 May 2018, as a dependant of his wife, who was undertaking religious studies and work. That visa was due to cease on 31 January 2021. The applicant applied for the Student visa under review on 22 January 2021. He has also held associated Bridging visas.

6. The applicant gave evidence that he first moved to Australia for the purpose of educating his sons. I accept his evidence in this regard, and find that he has lived in Australia since October 2012. He then supported his wife while she completed her studies in Theology and while she then worked as an assistant pastor. The applicant now proposes to also study Christian Ministry and Theology, and proposes remaining in Australia at least until June 2026 to complete a Graduate Diploma in this field. This will bring the applicant’s stay in Australia to over 13 year and 8 months. This is a significant period of time and raises concerns that the applicant does not intend to remain in Australia on a temporary basis and that he may be using the Student visa programme to maintain ongoing residence and to circumvent the intentions of the migration programme. This concern is heightened by the timing of the application for the Student visa, which was made 9 days prior to the applicant’s dependant Temporary Activity visa coming to an end. While I have had regard to the applicant’s explanation for wishing to commence his studies at that time, including his evidence that three members of his family were studying prior to that, given the length of time the applicant has remained in Australia and the personal ties which are set out below, I nevertheless have concerns that the Student visa application was made for the purpose of maintaining ongoing residence.

7. The applicant’s ties to Australia include the presence here of his wife and his two sons, as well as one of his sisters. The applicant gave evidence that his sons currently hold Student visas. I note that they therefore hold temporary visas, however under the circumstances, I have concerns that the applicant gave evidence that he first moved to Australia in 2011 for the purpose of educating his sons. The applicant and his wife have remained in Australia with their two sons as a family unit since at least October 2012. When the Tribunal put this concern to the applicant, he stated that his sons are grown up now and he does not need to support them, and they can visit him in South Korea. While I have had regard to this response, as well as the temporary nature of the applicant’s sons’ Student visas, and the fact that his wife is a dependant to the applicant’s Student visa application, I have concerns that the applicant established his family unit in Australia in October 2012 and therefore have concerns that the continued presence of his wife and sons in Australia would present as a strong incentive to remain in Australia.

8. I also find that the applicant has church community ties which would act as a strong incentive for him to remain in Australia. The applicant provided the Department with a letter from the pastor of his church, which indicates the applicant serves as a deacon, and that the applicant’s wife was in charge of teaching the Bible to children, and that the applicant’s sons also ‘serve as praise and musical instruments.’ The applicant gave evidence that he has led church services and also served as a lead singer during services. I accept his evidence in this regard. I find the applicant and his family have strong church community ties in Australia, which include a source of employment for his wife from 2016 to 2022.

9. There is nothing to suggest that the applicant has entered a relationship of concern, and I make no adverse findings regarding this factor. Given the length of the applicant’s stay in Australia, I make no adverse findings regarding his knowledge of living in Australia. I am also satisfied from the applicant’s evidence that he has sufficient knowledge of his course and education provider, and I make no adverse findings regarding these factors. I make no adverse findings regarding his decision to now enrol at Iona Columba College, and accept the letter of release provided in December 2023, which indicates that Hope College has closed its Sydney campus.

   Value of the course to the applicant’s future

10. The applicant gave evidence that he intends to return to South Korea in 2026 after he completes the Graduate Diploma of Christian Ministry and Theology. He claims that he intends to work as a pastor in South Korea for two years, following which he will work internationally for two years, after which he will return to South Korea to work as a hospital pastor and undertake work in the ministry. He expressed particular interest in providing pastoral counselling to immigrants.

11. I note that the written submission from the applicant’s representative submits that it would be difficult to assess whether the applicant’s studies in Australia would be of benefit to him in terms of employment in the future, and it would be difficult to judge the remuneration he could receive.

12. Despite this submission, I accept that the proposed courses of study are relevant to the applicant’s stated career plans. I also accept that the applicant currently serves at his church, including having a role as a deacon. I note that the applicant has a Bachelor of Biology, which he completed in South Korea in 1993. He subsequently had a professional career in the pharmaceutical and IT industries, which included roles in management. While the applicant’s current studies at the vocational level are below those of his existing qualification at the Bachelor level, I note that clause 12(a) of Direction No. 69 specifies that decision makers should allow for reasonable changes to career or study pathways. I accept the applicant’s evidence that he is not motivated to study because of money, and accept his chosen field is an area of passion for him. I also accept that the applicant has provided some evidence of opportunities and remuneration as a pastor, as well as in related roles, upon return to South Korea. I also note that while the applicant has previously held professional roles in South Korea, since arriving in Australia he has worked as a cleaner and his annual salary has been in the range of $14,000 to $23,000 per year. I therefore accept that the proposed course of study may increase the applicant’s employment opportunities and the remuneration he could expect to receive. I therefore make no adverse findings in relation to the value of the proposed courses of study to the applicant’s future.

    The applicant’s immigration history

13. As noted above, the applicant arrived in Australia in October 2012 with a Visitor visa and applied onshore for a Student visa. He was subsequently granted a Temporary Work (Long Stay Activity) visa (Subclass 401) on 29 April 2016 and a Temporary Activity visa (Subclass 408) on 11 May 2018, as a dependant of his wife. He now proposes remaining in Australia at least until June 2026 to complete a Graduate Diploma of Christian Ministry and Theology. Given the length of time the applicant has remained in Australia, as well as the presence here of his immediate family unit since at least October 2012, I have concerns that the Student visa may be used primarily for maintaining ongoing residence.

14. I note that the applicant has provided evidence of the award of the Diploma of Christian Ministry and Theology from Hope College. I also accept that the applicant has maintained enrolment in his chosen courses of study, and despite the closure of Hope College’s Sydney campus, he proposes completing the Graduate Diploma of Christian Ministry and Theology at Iona College a few days prior to the date he was scheduled to complete this course at Hope College. I note for the sake of completeness that the Tribunal file contains a copy of the applicant’s enrolment record from the Provider Registration International Student Management System (PRISMS), however I have not relied on the information in this document, given the applicant has provided CoEs for his courses at Hope College. I do not rely on the applicant’s PRISMS enrolment record in making any adverse findings. I take the applicant’s progress with his studies into account in assessing his circumstances as a whole.

15. However, 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. Given the length of time the applicant has now spent in Australia on various temporary visas, the Tribunal is concerned that the Student visa may be used primarily to maintain residence.

16. I make no adverse findings regarding the remaining factors relating to the applicant’s immigration history. There is nothing to indicate that the applicant has applied for any other classes of visa which are yet to be fully determined. I accept that the applicant has not previously had a visa application refused or a visa cancelled or considered for cancellation. There is nothing to suggest he has not complied with the conditions of his visas in Australia. There is also no evidence of any adverse migration or visa history to other countries. However, for the reasons set out above, I have concerns regarding clause 14(b)(iii) of Direction No. 69.

    Other relevant matters and conclusion

17. 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, including the written and oral submissions from his representative.

18. 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).

19. 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.

20. 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

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

    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;

    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.