Zhang (Migration)

Zhang (Migration) [2020] AATA 3417 (26 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Chunyan Zhang
CASE NUMBER:  1811790
HOME AFFAIRS REFERENCE(S):          BBC2018/1352548
MEMBER:Gabrielle Cullen
DATE:26 June 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 26 June 2020 at 12:33pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – not a genuine temporary entrant – non-completion of original course – non-enrolment for one year – inconsistent evidence – strong ties in China but use of student visa program to maintain residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 April 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
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 February 2017 on a subclass 600 tourist visa valid to 6 May 2017. She subsequently applied and was granted a subclass 500 visa valid to 9 April 2018. She applied for the visa to which this decision relates on 22 March 2018. She departed Australia from 18 August 2017 to 6 September 2017, 26 December 2017 to 30 December 2017, 28 May 2018 to 20 June 2018, 29 July 2019 to 13 August 2019, and 23 November 2019 to 6 January 2020.
Certificates of Enrolment attached to the application for the visa of 22 March 2018 refers to the applicant studying a Certificate II, III, IV, Diploma and Advanced Diploma of Business from 23 April 2018 to 5 November 2022. To the Department she provided evidence that she had successfully completed English courses studied from 27 March 2017 to 19 February 2018 while holding a previous student visa.
The evidence at the time of this decision, from the applicant indicates that she did not successfully complete the Certificate II in Business[1], and altered her enrolment so that she is now enrolled in the following courses:
·Certificate III in Business from 2 September 2019 to 30 August 2020
·Certificate IV in Business from 31 August 2020 to 29 August 2021
·Diploma of Business from 30 August 2021 to 30 August 2022
·Advanced Diploma of Business from 29 August 2022 to 27 August 2023
[1] See email to applicant on 17 June 2020 and her response
In her application for the visa addressing the genuine temporary entrant criteria she claimed she wants to study the business courses after she completed the one year English course as the company Fujian Xinghui Investment and Management Ltd have offered her a better job, being a senior customer service staff in the Business Department after graduation. She also provided evidence she owns property in Zhuhai City, a letter from the General Manager of Fujian Xinghui Investment and Management Co offering the applicant an employment position as a senior service staff in the Business Department of the Company, evidence of financial capacity and evidence she has a son born on 12 September 2012. She claimed to be divorced.
On 17 April 2018 the delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that she is not a genuine applicant for entry and stay as a student. The delegate noted the applicant had strong ties to her home country in the form of immediate family but found that in itself does not constitute a strong incentive to return home. The delegate was concerned as the applicant together with her spouse advised the Department when travelling to Australia for sightseeing for the initial visa that their English was quite good and as a result, they do not see any problems if they travel individually. However, despite this she then lodged a student visa in 2017 on the basis of improving her English skills to obtain a good position at the Fujian Xinghui Investment and Management Company and now claims she needs another student visa as she needs to complete a three year business course having completed one year study of English so as to obtain a senior customer service job with the same company. The delegate did not find it feasible that a company would hold a position open for 6 years and had serious concerns as to the applicant’s genuine intention to study.
On 25 April 2018 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.
On 2 June 2020 the Tribunal wrote to the applicant and invited her to attend a hearing on 22 June 2020. The letter, among other matters, requested the applicant provide a current COE and documents that show her past studies in Australia. It noted the Tribunal will assess whether she intends genuinely to stay in Australia temporarily as required by clause 500.212(a) and asked her to provide a written statement addressing this issue by referring to Direction 69, which was attached.
Prior to the hearing the applicant provided evidence of completion of a 40 week English course from 27 March 2017 to 9 February 2018, prior to the application for the current visa.
Her representative in a statement addressing the genuine temporary entrant criteria submitted the following:
·As to the applicant’s circumstances in her home country, she is divorced but her eight-year-old son lives with her parents. She regularly contacts him on Wechat and returns to China during the school holidays.
·The applicant wants to be a good example for her son by obtaining an advanced diploma qualification in Australia which is useful for future work and life.
·After she completed the English courses in February 2018, she wanted to continue to study to improve herself and obtain a higher diploma degree as it is hard to find a senior job in an international company and she wanted to accumulate valuable professional work experience for her future business. He refers to her receiving a job offer from Fujian Xinghui Investment and Management Company, although not at a management level as she desires. The delegate submitted that almost all management related jobs require an advanced diploma degree, so she is enrolled in the package course for a better future career path.
·He provided information as to why the applicant is studying in Australia and not China and referred to Australia’s world-renowned education system and what the course offers.
·The applicant is currently studying a Certificate III in Business which is a prerequisite for the Advanced Diploma course.
·After she was refused in April 2018, she felt sad and depressed and returned to China to visit her son and parents for comfort. Under encouragement from her family she returned to Australia, but the school cancelled the Certificate II courses in January 2019, and she therefore enrolled in the Certificate III in Business from September 2019 after she studied English at home.
·She has attended every class of the Certificate III and finished every assignment except when she had to return to China to take care of her mother as she had surgery.
She attached evidence her mother underwent surgery for kidney stones in November 2019, and a letter from her education provider dated 9 June 2020 confirming the applicant is enrolled in the Certificate III in Business from 2 September 2019 to 30 August 2020. The letter notes the applicant is one of their best students and her academic progress is 100%. Also attached were performance assessment certificates for the Certificate III in Business.
On 17 June 2020 the Tribunal requested the applicant provide by 22 June 2020 evidence as to completion of any courses and subjects towards the Certificate II and III in Business and evidence of enrolment dates.
On 19 June 2020 she provided evidence as to financial capacity including the following:

·Evidence from the Agricultural Bank of China that the applicant holds 511,907RMB in her account as at 17 June 2020.
·Evidence the applicant holds $18,445 in her CBA account as at 17 June 2020.
·Evidence as to the ownership of two properties in China.
·Further lodgement assessment receipts for her current course dated 3 February 2020.
·Evidence from the applicant that she was enrolled in a Certificate II in Business from 23 April 2018 to 14 October 2018, but she did not complete the course and the course was terminated by the College from 22 April 2019 onwards.
The applicant appeared before the Tribunal on 22 June 2020 to give evidence and present arguments. Her representative did not attend the hearing. She was assisted with an interpreter in the Mandarin and English languages. The Tribunal noted that the issue before it is whether she meets the genuine temporary entrant criteria as per cl.500.212(a). It outlined these requirements and Direction 69.
As to her highest level of education in China, the applicant said she graduated from High School.
As to why she wanted to study in Australia; she said she thought the education was better than in China and she wanted to improve her English. As to why she wants to continue studying; she said that she has only completed one year of English but does not think that is enough for her future development. As to what areas she wants to develop for her future she paused, she then said she wants to obtain qualifications in Australia so she can return to China and obtain a management position in business.
The Tribunal noted that when she applied for the visa, she was enrolled in a packaged course to complete a Certificate II, III, IV, Diploma and Advanced Diploma of Business and asked her which ones she had successfully completed. She responded that she had not successfully completed any of those courses but was currently enrolled in the Certificate III in Business.
The Tribunal raised with the applicant via s.359AA information from the PRISMS record which indicates she had not been enrolled in a course of study from October 2018 when she supposedly finished studying the Certificate II in Business until September 2019 when she commenced the Certificate III in Business. It outlined that were it to rely on the information it would lead it to find she is not entitled to the grant of the student visa. It raised with her that it may lead it to find she is not a genuine student and does not meet cl.500.212(a) and explained why. After the consequences of relying on the information were raised with her and the options of how she wished to comment or respond, she chose to comment or respond orally at hearing.
She said in April 2018 she was very upset by the Department refusal of the student visa. She said she had completed a year of English before this and received a Certificate. She said she went back to China at the end of May 2018 and was encouraged by her family to return to Australia. She said after she returned, she was prepared to restart studying but she believed as her student visa was refused by the Department, she could not study and she said she wanted to wait for the decision of the Tribunal. She said she later heard from another person that she could study on her bridging visa after the refusal and so she went back to her education provider and made enquiries as to studying the Certificate II in Business, which she had not successfully completed but they had cancelled the course so she could only enrol in a Certificate III in Business. She said she was not able to start immediately and had to wait for the course to commence so taught herself English at home and then started the Certificate III in Business. She referred to the Assessment notes she had submitted indicating she had completed all her homework for this course. She said it finishes in August 2020 and she wants to achieve this course.
The Tribunal asked her about the value of the business course to her future. There was a long pause. The Tribunal raised with her why she was and is prepared to commit 3 years of her life in Australia studying these business courses. She said in China she only completed High School and if she wants a better employment position, she needs better knowledge. The Tribunal asked her for more detail. She said previously in China she tried to start her own business, but she did not have the knowledge, so she wants the knowledge for her future.
The Tribunal asked if her plan is to open a business on her return; she said after she returns, she will find a company to gain experience. When asked what sort of company, she said a trading company. When asked if she had made any enquiries as to where she will work in the future; she said first she will finish the course and then find a trading company to employ her. She said she will then start a business maybe with her previous business partner. She said this had always been her aim.
The Tribunal asked her why her evidence as to why she is studying and the value of the course to her future is different to her statement submitted to the Department and that of her representative. It noted that they refer to her already having a position with the Fujian Xinghui Investment and Management Ltd and don’t refer to a failed or previous business as motivation to learn in Australia. She then said her business did not fail she just wants to make a strong business. The Tribunal raised with her that the inconsistency may lead it to find she is not a genuine student and does not meet the GTE criteria.
The applicant confirmed she had a son and mother in China, she owned 2 properties there and that she frequently returns to China to visit her son and mother.
She said there are no civil or political reasons why she cannot return or military commitments that would act as a disincentive to return.
She said she was not working in Australia but was supporting herself.
As to her work in China, she said after her graduation she worked for three years then started a business in women’s fashion; a shop and then went into beauty products. As to the business she wishes to open on return after first working in a company, she said she wants to set up a factory and when asked what goods she wants the factory to produce; she said handbags. When the Tribunal asked whether that was why she is studying in Australia to help her in the future own and run a handbag factory she answered in the affirmative. She said she had always had an idea to run a business on return but the idea to run a factory she had had for about a year.
The Tribunal raised a number of concerns as to the applicant’s evidence particularly the inconsistent evidence as to why she is studying in Australia and the value of the courses to her future, particularly as she had not before referred to wanting to open a factory making handbags on return. She said it is an idea and she is not sure.
The Tribunal said her evidence seemed vague for someone who wants to commit three years to study business in Australia. She said she wants to obtain the certificate before she makes a decision as to where to work.
The Tribunal also noted it had already raised its concern as to her lack of enrolment and successful completion of courses since her application for the visa. It raised with her that in over 3 years of studying in Australia she had completed 1 year of English and 6/7 months of a Certificate III in Business.
The Tribunal asked her whether she ever contacted the Department to see if she could study when she stopped studying after the visa refusal and she said she did not. The Tribunal raised concerns that it may expect that a genuine student in Australia to study, would have contacted the Department to see if they could study rather than just stopping. She said she didn’t know she was able to study.
When asked whether there was anything she wished to add, she said she wants to finish her course, expand her professional knowledge and practical skills. She said she made a lot of money and spent much time preparing for her study in Australia. She said her study is very important for future business which will improve her standard of living and give her child a better future. She said her intention is to finish her courses then leave Australia.
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.
Clause 500.212(a) 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
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.
As to the applicant’s circumstances in her 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. On the contrary she has submitted evidence of sufficient funds. 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 that study in Australia is highly regarded and in the applicant’s view, better than that offered in her home country. The Tribunal accepts her minor son, and all her family are in China and she has no family in Australia and that this indicates a significant incentive to return to China. The Tribunal also accepts that her regular and frequent trips to China to visit her son and mother are indicative of a person who has strong family ties to China. The Tribunal 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 also accepts that the applicant is currently enrolled in a Certificate III in Business from 2 September 2019 to 30 August 2020 and that she is attending this course, successfully completing the assessments and achieving academic progress in this course. It accepts that after completion of this course on 30 August 2020 she is enrolled to study a Certificate IV in Business, Diploma of Business and Advanced Diploma of Business from 31 August 2020 to 7 August 2023. It accepts that since her arrival in Australia she has successfully completed General English courses from 27 March 2017 to 9 February 2018[2]. However, enrolment and the successful completion of courses are only two considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily as a genuine student.
[2] While the PRISMS record indicates the English course ran to 20 April 2018 the applicant provided Certificates from the education provider and written evidence that she completed the English course only to 9 February 2018. The Tribunal places more weight on the applicant’s oral evidence as to course undertaken and completed than that of PRISMS, which is not 100% accurate.
The above information indicates the applicant has been in Australia since 16 February 2017 arriving on a subclass 601 visa valid to 6 May 2017. She applied for her first student visa before the expiration of this tourist visa and was granted a student visa to 9 April 2018. The information indicates that the applicant has been in Australia for just over 3 years claiming to be a genuine student and claiming to be in Australia to study and wishes to extend this period of study in Australia until August 2023, being a period of 6 years. The Tribunal views as of concern that despite claiming to be in Australia to study for 3 years she has only successfully completed General English courses for just over a year from March 2017 to February 2018 and a major part of her Certificate III in Business she has studied since September 2019 to present, which she will finish in August 2020. Further, as raised with her via the process outlined in s.359AA, the Tribunal views as of concern her lack of enrolment in any registered course of study as indicated by the PRISMS record from October 2018, when the Certificate II in Business finished to September 2019. The Tribunal notes that it is the applicant’s evidence that despite being enrolled to October 2018 her lack of study was longer as she stopped studying and attending the Certificate II in Business when she was refused a student visa by the Department in April 2018, then went to China from May 2018 and did not return to study the course.
While there may be good reasons for it, the Tribunal for the reasons below is not satisfied on the evidence before it that she has provided credible evidence as to her lack of enrolment and course completion since she began studying in Australia in early 2017, especially since the application for a student visa in March 2018 to which this decision related. At hearing the applicant indicated that she ceased studying the Certificate II in Business following the refusal by the Department on 17 April 2018. She claims she then travelled to China in May 2018 and was encouraged by her family to return to Australia. She said after she returned, she was prepared to restart studying but she believed as her student visa was refused by the Department, she could not study, and she said she wanted to wait for the decision of the Tribunal. She said she later heard from another person that she could study on her bridging visa after the refusal and so she went back to her education provider and made enquiries as to studying the Certificate II in Business, which she had not successfully completed but they had cancelled the course so she could only enrol in a Certificate III in Business. She said she was not able to start immediately and had to wait for the course to commence so taught herself English at home and then started the Certificate III in Business in September 2019. The Tribunal does not accept her response as reason that she did not study. When the Tribunal asked her whether she contacted the Department as to whether she could study on a bridging visa she answered in the negative. The Tribunal is of the view that a genuine student in Australia to study would have enquired of the Department or her education agent or representative as to whether she could study. Her period of not studying for approximately one year, without seeking information as to whether she could study undermines her claim to be a genuine student. While the Tribunal accepts the Certificate II in Business ceased being offered in January 2019, the Tribunal is of the view that if she was a genuine student studying for her future she would not have waited over a year to return to study or to enquire as to whether she could study. Her lack of enrolment and course completion undermines her claim to be a genuine student, staying in Australia for the reasons she claims.
Further, undermining her claim she is a genuine student, studied and is studying for the reasons she claims is her inconsistent evidence as to why she is studying the business courses and their value to her future. In her application for the visa she attached an offer of employment from the Fujian Xinghui Investment and Management Co. Ltd advising that they have agreed to the applicant studying a further three year business course and after she returns to China she will work as a senior customer staff in their company. In her application when asked to give details as to how she will meet the genuine temporary entrant criteria she referred to this position that she will return to in China on completion of the business course. Her representative in his submission to the Tribunal referred to the applicant having received a job offer with this company and while he noted it was not in management level as she desired, he submitted that it is still one of the motives for the applicant to make a decision to continue to study in Australia. However, while the applicant has consistently stated the reason for studying is to obtain better employment on return and referred to working in a company on return, at hearing, in contrast to her previous evidence she did not refer to future employment at the Fujian Xinghui Investment and Management Co. Ltd as ever having been a motive to finish the business degree, rather saying when asked if she had made any enquiries as to where she will work in the future; that she will finish the course and then find a trading company to employ her. At hearing she also referred to her past business in China being a motive to study as she wanted to learn to make a business better when she opens one after working in a company. As raised with the applicant, in her previous evidence and that of her representative there is no mention of a past business as a motive or the desire to open a future business as reason she wishes to study the business courses in Australia. When the inconsistencies were raised with her at hearing, she did not address them or offer an explanation for the inconsistencies. The applicant’s lack of consistency as to why she is studying the business courses adds to the finding the applicant is not genuine as to her reasons for studying what she has and wishes to, and leads the Tribunal to find she is using the student visa program to maintain migration not as a genuine student.
As to the applicant’s immigration history, the Tribunal is of the view there is nothing which indicates that she does not genuinely intend to stay in Australia temporarily, rather as highlighted above, her frequent trips to China to visit her son indicates a strong incentive to be in Australia temporarily.
In making the decision the Tribunal has considered all the evidence before it, including that she is enrolled and currently and successfully studying a Certificate III in Business, that she previously completed registered and non-registered English courses in Australia, has much stronger family ties in China than in Australia, owns property in China, her indication that she will return home on completion of the current course, her frequent trips to China to visit her son and mother, and that she has sufficient funds; however for the reasons outlined above does not accept she is undertaking the current study for the reasons she claims, but rather using it as a pathway to maintain residence in Australia.
Based on what is evidenced of the applicant’s circumstances overall, including her immigration and study history, her 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 she 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 3417

26 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Intention

Statutory Construction