ZHANG (Migration)

ZHANG (Migration) [2020] AATA 3521 (24 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Xin ZHANG
CASE NUMBER:  1720229
HOME AFFAIRS REFERENCE(S):          BCC2017/2313608
MEMBER:Gabrielle Cullen
DATE:24 August 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 24 August 2020 at 12:31pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant and genuine student – visa, travel and study history – career plans and value of courses – two changes of subject area and enrolments in lower-level courses – non-completion of certificate course and enrolment in diploma course after visa refused – slow course progress – travel to home country for holiday and restriction from returning because of COVID-19 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359AA
Migration Regulations 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 Immigration and Border Protection on 15 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 29 June 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The applicant arrived in Australia on 16 April 2011 on a subclass 573 visa and was granted further subclass 573 visas until 30 August 2014. He then was granted a subclass 485 Temporary Graduate Visa to 15 April 2016 and then a subclass 572 visa to 30 June 2017. He applied for the student visa to which this decision relates on 29 June 2017. He departed Australia from 7 July 2012 to 29 July 2012, 29 January 2014 to 17 February 2014, 5 September 2014 to 16 September 2014, 3 March 2015 to 17 March 2015, 1 February 2016 to 18 February 2016, 28 January 2017 to 8 February 2017,15 September 2017 to 25 September 2017 and departed on 23 January 2020 on a bridging visa valid to 22 February 2020.
A Certificate of Enrolment (COE) attached to the current application refers to the applicant studying a Certificate IV in Marketing and Communication from 17 July 2017 to 26 August 2018. A letter from the education provider indicates he was enrolled in the course during this period but that his enrolment was ‘dropped’ before the actual course finish date. The PRISMS record indicates enrolment was cancelled on 12 June 2018 for non-payment of fees.[1] Before the first Tribunal hearing he submitted a COE to study a Diploma of Marketing and Communication from 13 May 2019 to 28 August 2020. He has then re-enrolled in the same course from 29 June 2020 to 19 March 2021 with the same education provider. A letter from the education provider indicates a leave of absence from this course was sought for the period 29 June 2020 to 28 August 2020 due to Covid 19 and was granted. The letter indicates the applicant being enrolled in the Diploma of Marketing and Communication from 13 May 2019 to 19 March 2021.
[1] As raised with the applicant via s.359AA at the Tribunal hearing
The evidence from the applicant and from the Department decision, which was attached to the application for review, indicates that prior to these enrolments he has successfully completed the following courses, while the holder or applying for student visas.
·Master of Business in Finance from 1 August 2011 to 8 January 2013.
·Master of Professional Accounting from 4 March 2013 to 7 March 2014.
·Advance Diploma of Translating from 23 June 2014 to 14 December 2014.
·Diploma of Interpreting from 18 April 2016 to 2 October 2016.
·Advance Diploma of Interpreting from 14 November 2016 to 30 April 2017.
In a statement addressing the genuine temporary entrant criteria submitted to the Department the applicant indicated that after he completed the Master of Professional Accounting in 2014 he started to work part-time as a marketing specialist in his family business as they wanted to open the market in Australia. He noted that as he had spent his university life in Sydney he believed he was capable to open the Australian market, his parents introduced him to many of their business partners and friends in Sydney and when he talked about different trends in the market, he realized he had very poor knowledge in the marketing field. So, he talked to his parents about going back to school to learn proper knowledge about marketing. He noted that he preferred to go to college rather than university as it is only a 1-year course and more practical and he could concentrate on marketing. He noted that he will return to China in 1 year to help the family business.
The delegate decided to refuse to grant the visa on 15 August 2017 because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned the applicant was not a temporary entrant having been in Australia since 2011, that his proposed study was at a lower level of qualification to that already achieved and was not convinced from the applicant’s statement as to the value of the course to his future.
On 1 September 2017 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.
On 2 April 2019 the Tribunal wrote to the applicant a s.359(2) letter as follows.
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:
·enrolled in a registered course of study; and
·a genuine applicant for entry and stay as a student.
Accordingly, you are now invited to give, in writing, information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the ‘Request for Student Visa Information’ form which you can access by clicking on the link below.
The applicant was also provided with information as to how to access a printable copy of this form if they wished to return a hard copy. The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.
On 16 April 2019 the applicant provided a completed ‘Request for Student Visa Information’ form, the additional information provided as follows.
·His parents and brother live in China and he contacts his family every day.
·As to community ties in his home country, he has joined the local Christian community and the local investment managing community.
·From June 2017 to June 2018 he worked at Headway as an accountant.
·He was not enrolled from June 2018 to April 2019 due to the rejection of his student visa application and he was not sure whether his study plan could be finished.
·He completed a Bachelor of Arts at Beijing University prior to coming to Australia.
·As to his future employment plans, he claimed that he is interested in the financial market. He claimed before he worked in this area, he learned about how to be an excellent professional employee, and this requires professional financial and accounting courses background. He claimed he also needed marketing courses to support this occupation.
On 22 May 2019 the Tribunal wrote to the applicant and invited him to attend a hearing on 28 May 2019. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212(a) and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.
On 21 May 2019 the applicant submitted course completion certificates with regard to the above-mentioned courses. He also submitted a CoE to study a Diploma of Marketing and Communication at Clarendon Business College Pty Ltd from 13 May 2019 to 28 August 2020 and a Confirmation of Enrolment letter dated 20 May 2019 from the NSW Business College Pty Ltd to certify he was enrolled in the Certificate IV in Marketing and Communication from 17 July 2017 to 29 June 2018. The letter however states, ‘Please note that this student’s enrolment was dropped before the actual course finish date.’
The applicant also provided a statement addressing the genuine temporary entrant criteria the additional information summarised as follows:
·He studied the Certificate IV in Marketing and Communication to benefit his future career in China.
·He has broken no visa conditions.
·Just because he worked part-time in Australia for the family business to develop the Australian market does not mean he wants to stay in Australia. He noted many Chinese companies operate in Australia and their CEOs and employees reside in China. Therefore, the work he did for his family business and the intention of studying marketing and communication are for his future career in China, rather than to extend his stay in Australia.
·He loves his country, has friends and family there and while he wishes to study in Australia with its world class education system, he will return home. He noted that his parents are getting old and that is why his stay in Australia is only temporary.
·The visa refusal made him sad and influenced his studies. He stated that he was very depressed for a long time and could not concentrate on his Certificate IV course. However, after the negative thoughts he carefully considered his future and decided to continue studying.
The applicant appeared before the Tribunal (differently constituted) on 28 May 2019 to give evidence and present arguments. His representative did not attend the hearing. He was assisted with an interpreter in the English and Mandarin languages.
At the hearing the applicant provided the following additional evidence relevant to the genuine temporary entrant criteria:
·As to his plans when he first arrived in Australia, it was to finish his study and return to China to the family business. He said the family business was the supply of electrical products and speakers and is located in his hometown. He said his mother and father work in the business, and there are around 20 employees, two shops and a small factory that manufactures speakers for the home. He said the business operates in China and they just opened a market in Australia with plans to sell their products. He said they need to find distributing channels and build a sales team.
·He said in 2013 he returned to China after he finished his first Master’s degree to work as a trader at the Bank of China International and quit as he realised the knowledge he had obtained was not enough. He confirmed he only worked for a few days so came back to do a Master of Professional Accounting
·When asked why he did not return to China in 2014 after he finished the Master of Professional Accounting, he said his plan was to work as an independent trader investing his own money, not to work for clients. He confirmed that as a result he did not seek any employment from traders or banks or financial institutions at that time.
·The Tribunal then asked why having decided that was his role he did not stay in Chian and invest his own money and he said he then decided in 2014 to obtain a Diploma in Translating and Diploma in Interpreting.
·He said at first, he did not want to help the family business and was hoping to get a job in an investment bank in China.
·The applicant and Tribunal provided the following evidence.
MEMBER: So from 2011 to 2014 you had successfully completed business and accounting courses. You had a plan to return to China firstly to work in investment banking and then that changed and your plan was to return to China to invest your private money and then in 2014 you decided to obtain qualifications in translating and interpreting. Why was that?
APPLICANT: Actually, the reason why I (indistinct) a trader is a very hard work and I tried - I tried it and I failed and then after that I am just confused at all this and thinking if I should continue in this area.
MEMBER: But as I understood your evidence - and correct me if my understanding is wrong - you had first decided to work for an investment bank as a trader?
APPLICANT: M’mm.
MEMBER: You said that you had worked for a few days and you didn’t believe that you were suitably qualified to be successful in that type of work. You then came back to Australia, you studied for a Master of Professional Accounting and your intention was to invest your own money - not work for anyone else?
APPLICANT: M’mm. No.
MEMBER: And that takes us to 2014 so by then deciding to study for qualifications in interpreting, that - there does not seem to be any relationship between your previous study history and your qualifications in business and in accounting which you had achieved, and your plans to invest your money in China and your decision to then obtain qualifications in interpreting?
APPLICANT: But the time I had finished my accounting course the idea - my idea for working in invest money - investment bank had already gone - completely disappeared and the same as the idea for working as an independent trader because I had tried that and failed, I thought it was too difficult for me.
MEMBER: But working as an independent trader is investing your own money, that’s how you described it to the tribunal?
APPLICANT: M’mm.
MEMBER: That’s how you - that’s not working for anyone else, that’s investing your own money?
MEMBER: And by 2014 did you not have adequate skills and qualifications to do that in China?
APPLICANT: You mean after I have finished the accounting course? 5
MEMBER: Yes.
APPLICANT: I was qualified to do that but once I got back to China, I had to pass an exam, take and pass an exam, it’s an entrance exam for the qualification. At that time, I didn’t go home and take that exam and I had already given up my plan to work in that area. And my plan then was to study the translation course and while I was doing that course, I would think about what I want for myself in the future.
MEMBER: So, when you decided to study interpreting - translating and interpreting in 2014 you didn’t have any idea or any plans as to what you would do with those qualifications, is that correct?
MEMBER: Well, you studied interpreting between 2014 and 2017 and you achieved the qualifications of Advanced Diploma of Translating, Diploma of Interpreting and Advanced Diploma of interpreting at Sydney Institute of 30 Interpreting and Translating, correct?
APPLICANT: Yes.
MEMBER: That’s the information that you have provided to the tribunal?
APPLICANT: M’mm.
MEMBER: All right. Well then you’ve got qualifications in interpreting. Have you used those qualifications at all? You achieved those qualifications in 2017?
APPLICANT: No, not yet.
MEMBER: Have you got any plans to use those qualifications?
APPLICANT: Yes. My plan was that when I got back, if there is any conferences where foreign investors or foreign traders were involved then I would have the qualification to do that.
MEMBER: Foreign investors or foreign traders in respect of what?
APPLICANT: For example, if I was to work in my family business or just for other employers or if the party that we were negotiating with, if there is such a need then it would be helpful and useful.
MEMBER: Then in 2017 - July 2017 you enrolled in a Certificate IV in Marketing and Communication at NSW Business College?
APPLICANT: Yes.
MEMBER: Correct. And you completed that in June 2018? Why did you study that course?
MEMBER: Okay so what happened in respect of the Certificate 4 in 30 Marketing and Communication?
APPLICANT: Yeah, before I apply this course I already made a decision that I will do the family business so - and I realised I need to study the marketing and the communication but I - from there I just get a refuse letter, and then I think the whole plan was just broken by the refusal letter so I just need to think about it again.
It was raised by the Tribunal that the Department refused his visa as the current course appeared to have little value to his future and it was a lower course to that previously studied.
MEMBER: Well how exactly will this course assist the family business if itis your plan to return to China and work in a family business?
APPLICANT: Firstly, it matches the business professionally. I mean I will be able to learn all the business knowledge and knowledge about communicating with clients and things like that so those were not involved in my previous courses.
MEMBER: I’m sorry, about how to what - communicate with clients?
APPLICANT: Yes, communicating with clients and market the product.
MEMBER: Anything else?
APPLICANT: That’s all I think
MEMBER: The concern that the tribunal has is that the current course that you propose to study does not appear to have any clear relationship with your proposed plans of participating in the family business when you return to China and it also appears to be a lesser qualifications than earlier qualifications that you have received as a Master of Business and Finance and a Master of Professional Accounting.
On 2 June 2020, the applicant was advised by the Tribunal that the previous member who was reviewing the case is no longer available and that the matter had been reconstituted to a different member. The applicant was advised that all documents and other material that were considered by the previous Member have been given to the current member, including material from the Department; recordings of any hearings and any submissions or other evidence provided to the Tribunal.
On 1 July 2020 the applicant was invited to attend a hearing on 6 August 2020. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal may assess whether he intends genuinely to stay in Australia temporarily, which was the reason for the delegate’s decision and referred to and attached Direction 69. The letter also noted that the Tribunal may assess whether the applicant is enrolled in a registered course of study and that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review.
On 14 July 2020 the applicant submitted a new COE to study the Diploma of Marketing and Communication from 29 June 2020 to 19 March 2021, leave of absence approval dated 14 July 2020 from his education provider for the period from 29 June 2020 to 28 August 2020.
He also provided a statement dated 8 July 2020 noting that on 23 January 2020 he returned to China to visit his family and planned to return to Australia later to study, however due to the pandemic Australia closed its border in February and he cannot return. He claimed he tried to study online but that was very difficult, and the quality of online classes was very low. He noted that not only was the internet connection an issue, but the online class system was a nightmare. He indicated that prefers face to face teaching and wants to return to Australia to attend class
The applicant appeared before the Tribunal on 6 August 2020 to give evidence and present arguments. The Tribunal noted that the issue before it is whether he meets the genuine temporary entrant criteria as per cl.500.212. It outlined these requirements and Direction 69.

The applicant indicated he departed in January 2020 for Chinese New Year but was unable to return because of Covid 19 and remains in China.
The Tribunal discussed with the applicant his study record since his application for the visa. He confirmed he did not successfully complete the Certificate IV in Marketing and Communication which he was supposed to study from 17 July 2017 to 29 June 2018. As to why, he said during this time his visa was refused and he stopped because he did not know the impact. He said he stopped in April 2018 and did not study until he enrolled in the Diploma of Marketing and Communication from May 2019. The Tribunal questioned whether a genuine student would stop studying for this length of time. As to his enrolment in the Diploma of Marketing and Communication he confirmed he had not successfully completed this course and said he has completed 5 subjects. He said he had not stopped studying the course and has been studying while in China.
The Tribunal raised with the applicant via s.359AA information from PRISM that he ceased enrolment in the Certificate IV in Marketing and Communication on 29 June 2018, although noted he had said he stopped studying in April 2018, he did not successfully complete this course, he was not enrolled from June 2018 to May 2019, a period of 11 months and has been enrolled in the Diploma of Marketing and Communication to date and only completed 5 subjects. The Tribunal raised with him that were it to rely on the information it would lead the Tribunal to find he is not a genuine student. It raised with him the consequences of relying on this information as outlined below.
He responded orally and said he was supposed to enrol in the Diploma course, not the Certificate IV course and his agent made a mistake and enrolled him in the Certificate IV course. He said because the agent had made the mistake, he had no choice but to continue even though it wasn’t the course he wanted, so he then stopped. The Tribunal raised with him that it seemed he had not provided the evidence previously as reason for not finishing the Certificate IV course and he said he did at the first hearing and the Tribunal noted that it did not appear so but would check again.
He said after his visa was refused, he was not sure whether to stay and continue as he needed time to do that. He said only when he had a new agent was, he was told that he had to continue to study. He said he then lodged a new enrolment for the Diploma course, and this is the reasons for the gap in studying.
The Tribunal raised with him its concern that he is studying at a far lower level than that previously studied and questioned whether he enrolled in these courses to maintain residence and not as a genuine student. It asked him the value of these marketing and communication courses to his future.
He explained that he needed to understand marketing and communication and while he understood it was a lower course, he needed to study it for practical purposes for the family business; he didn’t need to do a Master of Marketing. He said the family is expanding the business into foreign countries. He said the family business is producing and selling speakers. He said he has decided to work in the family business since 2017 and needed to study marketing. He said they have started with the Asian market but are yet to expand into the Australian market.
The Tribunal questioned if he needed to study the marketing course for practical application to his role in the family business why he did not finish the Certificate IV course which would assist with his claimed aim. He said it was not the course he wanted to do, and it was the mistake of the agent that he enrolled in the Certificate IV course and not the Diploma course. The Tribunal raised with him that it was difficult to believe when he studied to April 2018 when the course finished soon after, he would not finish the course if he was studying or the reasons he claims.
The Tribunal questioned whether he is a temporary entrant and genuine student as he had been in Australia since 2011, studied in a range of areas and questioned why he would want to return to Australia to study further. He said he told the previous member how he proposed to study for his investment work which he went back to China to do and then made a new plan in 2017. He said he needs to study marketing to expand the market in Australia.
The Tribunal raised with him its concern as to the value of the marketing course to his future, that his evidence seemed vague and lacking in detail. He said with respect to marketing, Australia is a new market and he needs to study to understand it.
He said he is currently working while in China, in his own investment business. He said that he was also working in the family business.
The Tribunal asked why he could not do the marketing course in China, he said the same reasons he gave at the previous hearing, as he wanted to study in Australia as Australia has better education and he is used to the method.
When asked if he wanted to add anything, he said his agent made the mistake enrolling him in the Certificate IV in Marketing rather than the Diploma course and that is why he stopped studying, also because his visa was refused. He said when his visa was refused, he had to make an assessment as to whether to pay the tuition and re-enrol but was not sure he could finish so that is why he did not study for a period. He said he then studied the Diploma course and all was smooth until he returned to China for a holiday but could not return due to the pandemic.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets cl.500.212(a)
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.
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 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.
As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to China. The evidence indicates he is currently living in China and working in investment and the family business. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. The Tribunal accepts his family reside in China, including a brother and his parents who are getting old. The Tribunal is of the view that his family situation indicates a significant incentive to return to China. It accepts that these circumstances in China are strongly indicative of a person who is only a temporary entrant and wishes to return to their country.
The Tribunal accepts that study in Australia is highly regarded and he is used to the method of study in Australia, however, is concerned as to why he is not studying marketing and communication in his home country. He has indicated that he wishes to study the marketing and communication courses, not to the master’s or higher level but at a lower level to learn practical marketing tools so as to expand the family business into new markets. He submitted that he will run the business in China as the business expands into foreign markets and the Tribunal is of the view that considering he only wishes a lower marketing course to assist practically that it would be beneficial to study marketing in China while being involved in the business in China even if study in Australia is more highly regarded. While not solely determinative the Tribunal views as of concern his wish to continue to study the marketing courses in Australia and not in China and it adds to its finding he is using the student visa program to maintain migration rather than as a genuine student.
The Tribunal accepts that the applicant was continuously enrolled and successfully completed courses enrolled in while applying for or holding student visas prior to the current application up to April 2017, including those at a high level including a Master of Business and Finance, a Master of Professional Accounting, an Advanced Diploma of Interpreting and Diploma and Advanced Diploma of Interpreting. The Tribunal finds his continuous enrolment, the successful completion of all the courses he has been enrolled while applying or holding a student visa to April 2017 to be indicative of a genuine student and not a person using the student visa to maintain residence. However, continuous enrolment and the successful completion of courses prior to the current application are two of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.
The above information indicates the applicant has been in Australia either holding or applying for a student visa or as a subclass 485 visa holder since 16 April 2011, a period of almost 9 years until his recent departure for a holiday on 23 January 2020 to China where he was unable to return. He wishes to return to Australia to continue to study to complete the Diploma of Marketing and Communication to 19 March 2021. The Tribunal views his extended length of stay in Australia and remaining in Australia for nearly 9 years, wishing to return and remain for a further 18 months as indicative of a person who does not intend to genuinely stay in Australia temporarily. In making this finding the Tribunal notes he has regularly returned to China and is currently living in China as he was unable to return from his holiday due to border closures as a result of Covid 19. However, it does not accept that such visits over the extended period he has been in Australia and his current extended visit which is not of his choosing as the border is closed, as undermining the Tribunal’s concern that his extended length of stay in Australia and his wish to extend this stay may lead it to find he does not genuinely intend to stay in Australia temporarily.
Further the Tribunal, for the reasons below, is not satisfied on the evidence before it that he has provided credible evidence as to why he has undertaken the Certificate IV of Marketing and Communication and is studying the Diploma of Marketing and Communication and the value of his study to his claimed future. It adds to the Tribunal’s finding that he is using the student visa program to maintain residence not as a genuine student.
Firstly, the Tribunal views as of concern that despite claiming he needs marketing and communication for his family business and this is why he applied for the visa he did not successfully complete the Certificate IV in Marketing and Communication to be studied from 17 July 2017 to 29 June 2018 and ceased studying this course in April 2018[2] although formally the education provider ceased enrolment on 12 June 2018. When the Tribunal raised its concern as to the lack of successful completion of this course, he indicated at the second hearing that it was because his agent placed him in the wrong course and he wanted to do the Diploma course and not the Certificate IV course. The Tribunal does not accept this as a reason as when asked a similar question at the first Tribunal hearing in 2019 he did not provide this response and the Tribunal is of the view if this was the reason for ceasing studying in the Certificate IV course he would have stated it at both the hearings in 2019 and 2020. While he said he did raise it at the first hearing, the evidence from the recording and transcript indicates he did not. Further, he claimed that the Department’s refusal disrupted his study plan and as he was having second thoughts whether to study or not, he only attended then gave up. He said the refusal decision significantly affected his confidence and he did not want to study and only later when he talked to his family did he commence the Diploma course. At the second hearing, he said when his visa was refused, he had to make an assessment as to whether to pay the tuition and re-enrol but was not sure he could finish so that is why he did not study for a period. The Tribunal does not accept these reasons for not completing the Certificate IV in Marketing and Communication as the refusal decision occurred in August 2017, months before he ceased studying in April 2018 and enrolment was formally cancelled on 12 June 2018. The Tribunal is of the view if he was genuine as to why he was studying the Certificate IV in Marketing and Communication as the course finished in June 2018, two months before he ceased study in April 2018, he would have finished the course. His lack of completion of the Certificate IV in Marketing and Communication undermines his claim to be a genuine student and studying for the reasons he claims.
[2] As per his evidence at the second hearing
Further, since his application for the visa on 29 June 2017 the applicant has not completed any course and only completed 5 subjects towards the Diploma of Marketing and Communication. While the Tribunal accepts that he has not been able to return since February 2020 due to the Covid 19 pandemic and associated border closure, it views as undermining his claim to be a genuine student studying for the reasons he claims, his lack of course completion from when he began studying the Certificate IV course in July 2017 to January 2020 when he departed, being a period of over 2 years and 6 months. It views his lack of course completion and only completing 5 subjects in the Diploma course as undermining his claim to be a genuine student studying for the reasons he claims. For the reasons outlined above it does not accept his slow course progress is as a result of the agent enrolling him in the wrong course or difficulties, he faced following the Department refusal. While it accepts study has been difficult since he has been offshore, even considering this fact it considers his slow course progression to January 2020 to undermine his claim he is a genuine student.
The Tribunal also views as of concern that he is studying at a lower level to that achieved previously and has studied in a range of areas from finance to interpreting/translating and now marketing and communication. While there may be good reasons for it the Tribunal views the applicant’s evidence as to why he is now enrolled in marketing and communication courses and claiming to want to study and complete them for the previous 2 and a half years since the date of his application to not be persuasive. When asked why he is studying these courses he consistently refers to expanding the family business. However, the Tribunal is of the view his lack of course progression since his application in 2017 and not finishing the Certificate IV in Marketing and Communication as well as his lack of enrolment undermines this claim he is studying for the family business. Further in this regard the Tribunal has considered his lack of course progression and enrolment and rejected his reasons as to why this occurred.
These matters add to the Tribunal finding that he is not studying for the reasons he claims and using the student visa program to maintain migration other than for any value to his future.
As to the applicant’s immigration history, the Tribunal is of the view there is nothing which indicates that he does not genuinely intend to stay in Australia temporarily. In making this finding it has considered that he has been unable to return while on holiday due to border closures associate with the pandemic and has overstayed his bridging visa.
In making its decision the Tribunal has considered all the evidence before it, including that he has successfully completed all courses enrolled in up to the current application, he has strong family ties in China, all his reasons for studying the marketing and communication courses, and all the other matters he has raised; however for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.
The Tribunal is therefore not satisfied that he is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence.
Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
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).
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.
Gabrielle Cullen
Member
Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

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

[2020] AATA 3521

24 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction