Zhao (Migration)

[2022] AATA 3694

Zhao (Migration) [2022] AATA 3694 (11 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yin Zhao

REPRESENTATIVE:  Mr Qiao Zheng (MARN: 1577062)

CASE NUMBER:  2114935

HOME AFFAIRS REFERENCE(S):          BCC2020/1342343

MEMBER:Peter Booth

DATE:11 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 11 October 2022 at 9:37am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – reasonable academic progress – value of the course to the applicant’s future career – multiple course changes and cancellations – limited family ties in home country – maintaining ongoing residence in Australia – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 65, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 9 April 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl .500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 3 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was assisted in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

8. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

9. 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.

10. 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.

11. The applicant gave evidence at the hearing, the substance of which was follows.

12. The applicant had read the delegate’s decision dated 20 October 2021 refusing his application for a student visa.

13. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.

14.   The applicant was asked to describe his current enrolment including commencement and completion dates. The applicant said, “Master business administration, course finish 12 August 2022”. He was asked whether he expected to complete the course on 12 August 2022. He said, “yes”. The Tribunal asked what he would do after that. He said, “I will study MBA to match”.  He was asked to be more precise. He said, “course is major in accounting, will continue to study management”. When asked whether he had enrolled in that because he said, “yes”. When invited to give more detail he said, “MBA got it today, CEO”. He was invited to state the commencement and completion dates. He said, “2022, 15 July, finish 2023 12 July”. The Tribunal observed that his next course had started one month previously. He said, “yes”. When asked whether he had been studying the course he said, “yes”. He was invited to provide confirmation of enrolment following the hearing. He said that he would do so.

15.   The applicant subsequently produced a confirmation of enrolment document to the Tribunal in respect of a Master of Business Administration scheduled to commence on 25 July 2022 and be completed on 21 July 2023. Notwithstanding the discrepancy in the dates in the applicant’s evidence, the Tribunal accepts that he is enrolled in the course described in the confirmation of enrolment.

16.   He was asked to state his highest education qualification obtained in China. He said, “Bachelor of Arts major in Japanese language and culture”. When asked whether the course had been completed, he said, “2002”. The applicant was invited to state his employment history in China. He said, “work in Japanese airline company, customer service staff”.

17.   He was asked when he arrived in Australia. He said, “2009”. When asked what visa he held at that time he said, “student visa”. The Tribunal asked what he intended to study when he arrived in Australia. He said, “intend to study commerce, obtain Master in Commerce”.

18.   He was invited to explain his visa history. The applicant was unable to do so satisfactorily and was invited to provide a concise visa history after the hearing. He said that he would do so.

19.   He was asked to explain, in narrative form, what visas he held in Australia. He said, “between 2009 and 2010 I held student visa, during time I finish graduate diploma, between 2011 and 2015 hold another student visa, during that time I study a Master degree, from 2016 until 2020 I was hold subclass 457visa, a working visa”.

20.   He was asked when he applied for the student visa in question. He said, “9 April 2020”. He was asked when the 457 visa had expired. He said, “should be middle of April 2020, think 12 April”. The Tribunal observed he applied for the student visa a few days prior to the expiry of the 457 visa. The applicant agreed.

21.   He was invited to explain his study history including the name of the courses, commencement and conclusion dates, whether he completed them and or not and if so, when he completed the course. He said, “from 2009 until 2010 study international business”. He was invited to state the name of the course. He said, “Graduate Diploma in Commerce (Major in International Business).

22.   When invited to continue he said, “after finish graduate diploma course studied Master of Information Systems”. He was asked whether he successfully completed the Graduate Diploma of Commerce. He said “yes”.

23.   He was asked when he commenced the Master of Information Technology Systems course. He said, “beginning of 2011”. He was asked when he stopped studying that course. He said, “in 2015, before second semester”. When asked to state the expected duration of the course he said, “two years”. The Tribunal asked the applicant why he was still studying in 2015 if it was a two-year course. He said, “because during study I realise that because not suitable for me, did not fit into my study”. He was asked when he formed  the view that the course was not suitable. He said, “when I progressed about two semesters about 2012”. The Tribunal asked the applicant why he kept studying the course until 2015. He said, “because during the study I encountered difficulties, because psychological reasons, college arrange for counselling and extend time”. He was asked whether he was excluded from the course or abandoned it. He said, “in 2015 I made a decision to change to another major because I realised caused not suitable to me, way too difficult”. He was asked how many subjects he had passed and how many he had failed. He said, “I pass half of subjects”.

24.   The Tribunal asked the applicant to state the next course in which he enrolled. He said, “in 2015 made decision to change, I start study of master degree in accounting, but halfway through I stop because change to another visa”. He was invited to state the name of the course and when he had stopped studying it. He said, “start in 2015, should be second semester, about July or August, I stop in 2016, first semester, I decided to stop, full name Master of Professional Accounting”.

25.   The Tribunal asked the applicant whether he wanted to say anything further about why he ceased studying the course. He said, “at the time I was doing part-time job, employer told me he need someone to work full-time, but this did not fit in my visa study schedule, and also a part-time position does not fit into company needs, also I realise that my experience doing this job would be valuable to me to return to China and get a career, so I decided to work full-time”. He was asked to explain the nature of the employment. He said, “product sales representative”. He did not elaborate. He was invited to explain the nature of the products. He said, “recycling tyres into industrial products”.

26.   The Tribunal asked the applicant whether he changed his visa at this time. He said, “yes in accordance with employer requirement, a change to working visa clause 457”.

27.   The Tribunal asked whether he was asserting that the reason why he ceased studying and changed his visa status was because he had been offered employment. He said, “that was main reason, are the reason that I believe in good opportunity for me to gain experience for further career in China, second that I do need this opportunity to gain practical experience”.

28.   He was asked whether the graduate diploma in business was the basis on which the was granted a subclass 457 visa. He said, “not sure, but when employer doing his consideration, he took into account the study”. He was asked to state the period of the subclass 457 visa. He said, “start April 2016 until April 2022”. When asked as to his employment during that period he said, “I held position of product sales representative”.

29.   The Tribunal observed that when the 457 visa expired, the applicant had applied for another student visa. He said “yes”.

30.   He was asked to state the courses which he had successfully completed at the time he applied for the last student visa. He said, “Graduate Diploma Commerce (International Business”. He was asked whether he had also successfully completed an English language course. He said “yes”.

31.   The applicant was asked why he did not return to China at the expiry of his subclass 457 visa. He said, “during that time I realised I lacking some ability in my work and need to improve knowledge, also my employer advised me I should continue my study, another reason is that was Covid time, during that time employment market in China has gone through significant change, I realise employment market demand much more”.

32.   He was asked how many times he had returned to China and how long on each occasion. He said, “cannot remember, before Covid I go back about almost every year”. He was invited to provide a summary of his return trips to China following the hearing. He said that he would do so.

33.   The applicant was invited to explain the change in direction of his studying whilst in Australia. He said, “first point while doing graduate diploma course then later I wanted to obtain master’s degree because want to work in e-commerce, that is why I start study of Information Systems, second point while doing IT I realise that subject is not about promoting marketing about e-commerce, but focus on IT, because of that I experienced significant difficulty to study”.

34.   The applicant was asked what he believed he could study a Master of Information course successfully when he had not studied the subject previously. He said, “because of the time e-commerce is experiencing fast growth in China and development further was bright, so I believe if I study I could gain advantage in job market”.

35.   He was asked whether he had ever applied for permanent residence in Australia. He said “no, no intention to apply”.

36.   He was asked to state his career path when he returns to China. He said, “it will be related to commerce, especially in areas of recycling business and related to supply chain and working in management”.

37.   He was at this why he had studied other courses while he had been in Australia if that was his intended career path. He said, “three reason for me to choose MBA (professional accounting) to continue study of previous course which did not complete could second reason accounting knowledge need for job, third reason that my employer said would be needed”. He was asked why he did not study a Master of Business Administration when he arrived in Australia and why he had spent time studying different courses. He said, “because at the beginning didn’t have intention to get a job in management role, a time I saw get job related to Internet business, after working experience need to develop skill and need MBA course”.

38.   He was asked whether he owned any assets in China. He said “no”. He was asked to identify his immediate family and their place of residence. He said, “parents in China”.

39.   The applicant was asked whether he was currently employed. He said “part-time”. When invited to state the role and his income he said, “Department manager, $900 each week”. The applicant was asked to explain the nature of the business. He said, “provide Australian-based provide milk powder and supplement part of supply chain”. When asked whether this was a full-time role he said “part-time”. The Tribunal observed that he was asserting the role of the Department manager was a part-time role. He said, “due to Covid 19 does not need full-time position”.

1. The applicant declined an opportunity to add anything further to his application for review.

2. The applicant’s representative was invited to make submissions to the Tribunal. He declined to do so.

3. Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to those documents. A certificate confirms that the applicant completed an English language course in academic English on 10 July 2009. A certificate confirms the applicant completed a Graduate Diploma of Commerce on 2 October 2011. An academic transcript in respect of the Master of Information Systems shows the applicant failed most of the subjects he attempted and appeared to only pass two subjects. A letter dated 23 May 2022 confirms the applicant was enrolled as a full-time student in a Master of Business Administration (Professional Accounting) course. A letter dated 20 July 2015 confirms that his enrolment in the Master of Information Systems was cancelled because he had transferred to another provider. An academic transcript dated 20 July 2022 in respect of a Master of Business Administration (Professional Accounting) states he has completed many units and failed only one unit. He appears on track to successfully complete the course. However, at the time of writing the decision the applicant has provided no evidence that he has successfully completed the course.

4. The applicant provided a statement to the Department in support of his application for review. The statement is dated 9 March 2020, and without page numbers or paragraph numbers. The statement was not referred to by the applicant during the course of giving evidence at the hearing. Nonetheless it has been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to the statement. The applicant explains the reason for his desire to study a Master of Business Administration course. As to his future career path he states an intention to “become a sales and marketing manager at an international company in China”.

5. Some further information can be gleaned from the delegate’s decision dated 18 October 2021. In relation to the applicant’s employment history and experience in Australia the delegate stated: “In their application, the applicant has declared they have been employed with Golden DC as a product sales representative since 2018, BSV Tyre Recycling Australia from 2015 to 2018 as a product sales representative, Australian Alliance from 2013 to 2015 as sales representative and at Mizuya Japanese Restaurant and Karaoke.”

6. The applicant’s representative had provided some written submissions prior to the hearing of the matter. These submissions are undated, and without paragraph numbers. They have been taken into account by the Tribunal and given appropriate weight. The Tribunal makes a number of observations in relation to the submissions. First, the submissions confirm that the applicant has completed a graduate Diploma of Commerce in Australia. Secondly, the submissions do not state that he has also completed a sure English language course.

7. After the hearing the applicant’s representative provided further written submissions. These submissions are undated and without paragraph numbers. They have been taken into account by the Tribunal and given appropriate weight. The Tribunal makes a number of observations in relation to the submissions. First, the submissions confirm the applicant completed an English language course between February 2009 and July 2009, a Graduate Diploma in Commerce between July 2009 and January 2011, he withdrew from a Master of Information Systems course in May 2015 which he had commenced in February 2011, he withdrew from a Master of Professional Accounting course in April 2016 which he had commenced in July 2015. He was employed as a product sales representative by BSV Tyre recycling Australia Pty LT D between April 2016 and February 2018 and by a related company between March 2018 and April 2020.He held these positions whilst he was the holder of a subclass 457 visa. Next the applicant has completed the Master of Business Administration (Professional Accounting) course and was currently studying the Master of Business Administration course.

1. The submissions also state that the applicant has returned to China on 10 occasions the most recent of which was on 16 April 2018 and that he returned to Australia on 1 May 2018. Accordingly, the applicant has not returned to China since 16 April 2018.

   CONCLUSIONS

2. The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.

49.   Without diminishing the applicant’s evidence, it can be summarised as follows.

50.   The applicant completed a Bachelor of Arts in China majoring in the Japanese language. He worked in a Japanese airline, perhaps from 2002 until 2009 but that is not clear. The applicant arrived in Australia in 2009, he did not provide a precise date. He stated that he held a student visa and intended to study “commerce, obtain a Master in Commerce”. The applicant has not provided information regarding his visa history in Australia despite agreeing to do so. However, based on the information which he gave at the hearing it appears that he has held two student visas between 2009 and 2015 and then a subclass 457 visa between 2016 and 2020. The application for the student visa in question was made on 9 April 2020, a few days prior to the expiry of the 457 visa.

51.   The applicant did not study between 2016 and 2020 when he applied for the student visa in question.

52.   The applicant has completed a Graduate Diploma in Commerce and a short English course. He enrolled in a Master of Information Systems in 2011 but abandoned it in 2015. He then enrolled in a Master Professional Accounting course in 2015 but abandoned that course in 2016.

53.   He applied for a subclass 457 visa because his then employer offered him full-time employment. He was employed in marketing in a recycling business.

54.   The applicant has changed level and direction of his study whilst in Australia. The applicant has returned regularly to China but not returned since 2018. He has family in China but has no assets. He has had some employment in China but the duration of and details are unclear.

55.   The applicant has stated that he intends to work “in commerce” in the field of recycling when he returns to China. However, he had informed the Department earlier that he intended to work in sales and marketing”.

56.   Although the applicant has not provided a certificate of completion it appears most likely that he has recently completed a Master of Business Administration (Professional Accounting).

1. The applicant has not explained to the Tribunal’s satisfaction why he changed the level and direction of his study whilst in Australia, why he changed the level and direction of his study from that completed in China, why he attempted to study a Master of Information Systems and a Master Professional Accounting if his true intention is to work in sales and marketing, why he chose to cease studying and apply for a subclass 457 visa, why he did not return to China permanently when he was struggling with his study, why he did not return to China permanently when his subclass 457 visa expired or when his recent student visa application was refused, why he chose to return to study and apply for a student visa a few days prior to the expiry of his 457 visa, a clear and cogent career path, details of his career path, and why his existing skills and experience are insufficient for him to embark on his vague career path.

2. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole in reaching a finding about whether she has satisfied the genuine temporary entrant criterion.

3. The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from China. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study.  Whilst the Tribunal accepts that the applicant may have family ties to China, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to China.

4. The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia in 2009 as a holder of student visa valid to 2010. The proposed study would extend the applicant’s stay until at least July 2023. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunals view this is not the conduct of a genuine temporary student. On balance, it is consistent with the applicant having decided to extend her stay in Australia by utilising the student visa programme.

5. The Tribunal does not place substantial weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First, the applicant has given vague evidence as to his future career path and no satisfactory details. Secondly, he has provided no satisfactory explanation as to why his existing skills and experience are insufficient to enable him to embark on his vague career path. Secondly having regard to his poor study history there exists reasonable doubt as to whether the applicant will complete his current course of study.

6. The Tribunal has considered the applicant’s study history since arrival and notes that he commenced study in Australia in 2009 and since that time has completed a graduate diploma in commerce, a short English course, and most likely a Master of business Administration course. There is also an extensive period, between 2016 and 2020 when he chose not to study and applied for a subclass 457 visa which he successfully obtained.

7. The Tribunal observes the applicant’s current course of study is inconsistent with the applicant’s qualifications and experience obtained China and is inconsistent with his plans when he entered Australia.

8. On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has experience in sales and marketing obtained both in China and in Australia and qualifications in commerce and business administration obtained in Australia. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.

9. The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.

10. The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between China and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to China. The applicant has been unable to demonstrate substantial ties or personal assets in her home country which diminishes his incentive to return to China.

11. The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to her future.

12. The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia in 2009 the applicant has spent approximately 13 years in Australia and has regularly returned to China but has not returned to China since 2018, has no assets in China, appears to have stable employment in Australia and intends to reside in Australia for the purposes of study until at least July 2023 all of which indicates that he does not appear to have strong personal ties to China. On balance, the Tribunal assesses the applicant’s incentive to return to China to be minimal.

13. The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted to student visa specifically to enable him to achieve that goal. Further, the applicant was granted a subclass 457 visa in order so he could obtain experience in Australia. The applicant lodged this application a few days prior to expiry of the subclass 457 visa. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.

14. The Tribunal has considered all information provided by the applicant in support of her application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

15. On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.

16. There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in China; political or civil unrest circumstances in China; remuneration the applicant could expect to receive in China, or a third country compared with Australia; circumstances in China relative to Australia or any other country; and the applicant’s circumstances in China relative to others in that country.

17. 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 need cl 500.212(a).

18. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.

19. 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

20. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Peter Booth
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.