ZHOU (Migration)

ZHOU (Migration) [2019] AATA 2337 (6 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Wenshuo ZHOU
CASE NUMBER:  1711060
HOME AFFAIRS REFERENCE(S):           BCC2016/2879706
MEMBER:Margaret Forrest
DATE:6 May 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 06 May 2019 at 10:54pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – breached visa condition 8202 – suffered from a medical condition – unsatisfactory attendance – conflicting evidence about future plans – maintain ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.211, 500.212, 500.218
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 9 May 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 30 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.
The applicant appeared before the Tribunal on 21 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was assisted in relation to the review by their registered migration agent (by their registered migration agent did not attend the hearing).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant provided the Tribunal with a copy of the delegate’s decision record dated 9 May 2017. The Tribunal also had access to the relevant file of the Department of Home Affairs and the Tribunal file (including an undated genuine temporary entrant statement from the applicant).
In accordance with the Direction, the Tribunal questioned the applicant about his potential circumstances in Australia. The applicant told the Tribunal that he has no family in Australia. In the information form submitted to the Tribunal, the applicant stated that “due to language barrier, the visa applicant merely has any community participation in Australia”. On the basis of this evidence, the Tribunal considers that the applicant’s family and community ties with Australia do not constitute a strong incentive to remain in Australia.
Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of his enrolment records from the Provider Registration International Student Management System (PRISM) database. For completeness, the Tribunal provided the applicant with a copy of his PRISM enrolment records. The Tribunal explained to the applicant what the PRISMs database is and the relevance of the records to the review before the Tribunal (that the records showed the applicant intends to study in a field unrelated to previous studies, the applicant has undertaken a series of short, inexpensive courses and that despite being onshore for some time, the applicant has only completed two courses). The Tribunal explained to the applicant the consequences of it relying upon the information (that the Tribunal may form the view that the applicant is not a genuine temporary entrant and does not meet the criteria for the visa for which he has applied). The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal invited the applicant to comment on or respond to the information and advised the applicant that he may seek additional time to comment on or respond to the information. The applicant elected to respond at the hearing.
The applicant told the Tribunal that he arrived in Australia on 11 November 2012. The applicant confirmed that since arriving in Australia he has completed the following courses:
a.Diploma of Management;
b.Advanced Diploma of Management.
The applicant also enrolled in the following courses, but did not complete them:
a.English Language Programs (Beginner to Advanced);
b.Certificate IV in Tertiary Preparation Program;
c.Diploma of Commerce;
d.Bachelor of Commerce;
e.Bachelor of International Tourism and Hotel Management;
f.Bachelor of Business (Hospitality and Tourism Management);
g.Bachelor of Business (Event Management).
The applicant said he did not complete the English Language Programs (Beginner to Advanced) course that he was enrolled in when he first arrived in Australia in 2012 and his enrolment in this course was deferred because this was his first time abroad and he did not adjust well. In January 2013 the applicant returned to China for Chinese New Year. He asked his teacher for leave, and this was granted, but when he returned from his trip to China, the teacher that had given him leave, was on leave. As a result of his poor attendance, the applicant’s confirmation of enrolment (COE) certificate for the English Language Programs (Beginner to Advanced) course was cancelled in February 2013. In the absence of any further evidence in relation to this matter, the Tribunal accepts the applicant’s evidence in this regard.
Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file notes from the Department of Immigration and Border Protection that indicated that he had breached student visa condition 8202 which provides that the holder of a student visa must maintain satisfactory attendance in their course and course progress for each study period as required by their education provider. This information indicated that the applicant’s COE certificates were cancelled for the following courses on the following dates:
a.English Language Program (Beginner to Advanced) - 28 July 2013;
b.Bachelor of International Tourism and Hotel Management - 23 May 2016;
c.Bachelor of Business (Hospitality and Tourism Management) - 8 February 2017;
The Tribunal explained to the applicant the relevance of the notes to the review before the Tribunal (that the applicant was not committed to his studies). The Tribunal explained to the applicant the consequences of it relying upon the information (that the Tribunal may form the view that the applicant is not a genuine temporary entrant and does not meet the criteria for the visa for which he has applied). The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal invited the applicant to comment on or respond to the information and advised the applicant that he may seek additional time to comment on or respond to the information. The applicant elected to respond at the hearing.
The applicant said that he did not complete his differed English Language Programs (Beginner to Advanced) that he was scheduled to study from 18 March 2013 to 24 May 2013 because when he stopped attending class to return to China for Chinese New Year earlier that year, the school did not report him for non-attendance until July and that’s when his COE was cancelled. In the absence of any further evidence in relation to this matter, the Tribunal accepts the applicant’s evidence in this regard.
The applicant said that after he completed his Diploma of Management in October 2014 and his Advanced Diploma of Management in February 2015, he did not complete his Bachelor of International Tourism and Hotel Management which he was schedule to study between 2 March 2015 and 30 June 2017 because his English was not good enough and his teachers did not offer effective assistance. He also said that maybe he left the lectures half way through before the lecturers called the attendance and that is why they marked him as not there. The Tribunal accepts the applicant’s evidence in this regard.
The applicant said that he then enrolled in a Bachelor of Business (Hospitality and Tourism Management) at Kaplan (which he was scheduled to study between 16 March 2016 and 3 March 2018) after receiving advice from his migration agent. The applicant said that his migration agent told him he should not enrol in a basic English course because this would breach a condition of his visa. The applicant said that he did not complete his Bachelor of Business (Hospitality and Tourism Management) because he was diagnosed with ([Medical Condition 1]) in August 2016. The applicant said that treatment lasted about half a year and was concluded by mid-2017. When the applicant was diagnosed with [the condition], the Doctor recommended that the applicant not attend school while he was receiving treatment. The Tribunal has had regard to a letter provided by the applicant from Dr [A] to the Bupa Medical Visa Service dated 20 December 2016 which indicates that the applicant was diagnosed with [Medical Condition 1] in early September 2016 and received a course of treatment from 29 September until the end of March 2017. The Tribunal also had regard to a letter provided by the applicant from Dr [A] dated 15 November 2016 supporting the applicant’s application to defer his studies on medical grounds because the course of treatment he will be on until the end of March 2017 causes the applicant fatigue and difficulty concentrating. The Tribunal accepts that the applicant was unable to study between August 2016 and March 2017 because of his [treatment] and that after August 2016 the applicant did not complete his Bachelor of Business (Hospitality and Tourism Management) because of his [Medical Condition 1] diagnosis.
The Tribunal has had regard to a letter provided by the applicant from the Kaplan Business School to the applicant dated 5 January 2017 which says that on 29 July 2016, the applicant attended a meeting with the School to discuss his unsatisfactory progress in relation to his Bachelor of Business (Hospitality and Tourism Management). The Departmental notes also suggested that the Kaplan Business School had recorded unsatisfactory attendance for the applicant in relation to his Bachelor of Business (Hospitality and Tourism Management) before he deferred his enrolment because of [Medical Condition 1]. When asked to comment on this, the applicant said that before being diagnosed with [the condition], he was struggling with this course due to his poor English and the fact that his teachers did not offer him any effective assistance. The applicant said that at that time, he was depressed and went to a psychologist because of this issue. In the applicant’s genuine temporary entrant statement, the applicant claims that at this time his mental health was drastically affected. No further medical evidence was presented to the Tribunal to support this claim.
When the applicant submitted his current application for a student visa on 30 August 2016, the applicant was proposing to study a Bachelor of Business (Event Management) which he was scheduled to study from 5 June 2017 and 17 May 2020. The applicant said that, despite completing his treatment for [Medical Condition 1] in mid-2017, his COE for this course was cancelled on 22 October 2018 and he did not complete this course because of his long existing problem with English. He said that his migration agent told him he could not enrol in a basic English course because this would breach his visa conditions and that his teachers did not offer him any effective assistance. The applicant claimed that it was Department of Immigration policies that prevented him from finishing this course as well as the fact that he could not keep up. Later in the hearing, the applicant also said that he had wanted to enrol in an English program in 2018, but his father had cut him off at that time so he could not. The applicant said that he did not enrol in an English course alongside his Bachelor of Business (Event Management) after finishing his [medical] treatment in mid-2017 and before his father cutting him off in 2018, because he did not accept at that stage that he needed to learn English before completing a Bachelor’s degree. In the applicant’s undated GTE statement he also states that he did not reveal his limited study progression to his traditional Chinese parents because his father would be ashamed of him.
While I accept that the applicant’s [Medical Condition 1] diagnosis would have been distressful for the applicant and that it did prevent him from studying between August 2016 and March 2017, there is no evidence before the Tribunal indicating that the applicant suffered any mental condition that would have prevented him from continuing with his Bachelor of Business (Event Management) or enrolling in an English Course alongside his Bachelor of Business after he concluded his [medical] treatment in mid- 2017. The Tribunal accepts that the applicant’s migration agent told him he was unable to stop studying his other courses to enrol in a basic English course and that the applicant did not reveal his limited study progression to his family. However, if the applicant was a genuine student, it would not be unreasonable to expect him to have enrolled in a basic English course alongside his Bachelor of Business (Event Management) after he concluded his [treatment] in mid-2017 to address his long-standing issues with English proficiency.
The applicant gave evidence that he has not worked in Australia since August 2016. Given that there is no evidence that the applicant was struggling to meet his living expenses in Australia in 2018 and the applicant was enrolled in a Bachelor of Business (Event Management) from 5 June 2017 to 22 October 2018, the Tribunal does not accept the applicant’s evidence that he did not have access to sufficient funds in 2018 to enrol in a basic English course in that year.
The applicant is currently enrolled in a General English (Beginner – Advanced) Course. This course commenced on 18 March 2019 and was scheduled to conclude on 12 April 2019. The applicant said that if he was granted a student visa he wants to stay and further his studies in Australia, but if he is not granted a student visa, he will leave any time. The applicant said that if he is allowed to stay in Australia, he expects his English skills would improve enough in 6 to 12 months and then he plans to study a Bachelor of Business in Hospitality and Tourism Management.
When asked why the applicant had enrolled in a General English (Beginner – Advanced) Course on 20 March 2019, after he had received the hearing notice from the Tribunal on 27 February 2019, the applicant said that he had enrolled in this course as soon as he returned from his recent trip to China for Chinese New Year. The applicant said that he is no longer cut off by his father so he is now able to enrol in a General English (Beginner – Advanced) Course.
The applicant said that he was now studying a basic English course after completing a higher level Diploma of Management and Advanced Diploma of Management because his migration agent had told him he would breach a condition of his visa if he enrolled in a basic English course after completing these higher level courses. The applicant said that now that his matter was before the Tribunal, he wanted to start from scratch. The applicant also said that he had been hiding his lack of progress with his study from his parents, but this year he told his parents everything and they are supportive of him learning English and then going on to other studies.
The applicant said that he swapped from commerce to hospitality and tourism management because commerce was chosen by his father and his migration agent. They had told him that after he started commerce, he could transfer to any other major that he found interesting. The applicant decided to transfer to hospitality and tourism management. Earlier in the hearing, the applicant said that his father had been pressuring him to finish his Bachelor of Commerce so the applicant could take over family business. However, the applicant said that his father supported this change to hospitality and tourism management because it could be more relevant to the family business. The applicant said that he is from Shandong in China which is a Province famous for tourism and that his family business involves tourism. The applicant said that his plan was to go back to help his father with the family business and that this requires him to have a relevant degree. In the information form provided to the Tribunal, the applicant says that he “has a high possibility to take over his family business after the study”.

Later in the hearing, the Tribunal questioned the applicant further about his plans for the future. The applicant said that his father’s business is not actually in tourism and that his current plan is to work for a tourism company in China. The applicant said that his father had business partners in the tourism industry but that they could not just get him a job at the company he wants to work at. The applicant said that he would need to apply and that he would need to at least have a Bachelor’s degree. In the applicant’s undated GTE statement he says that his father “has an extensive connection [sic] throughout the tourism industry in Shandong and he assured me to a decent work opportunity if I successfully graduated with an oversea [sic] bachelor qualification”.
As described in paragraphs [29] and [30] above, the applicant has made distinct changes to his study and proposed career objectives numerous times. In paragraphs [29] and [30] above, the applicant has also given conflicting evidence to the Tribunal about his future plans. When the applicant’s limited progression with his studies is considered with the number of times that the applicant has changed the focus of his studies and associated career plans, the Tribunal considers that the applicant’s evidence in relation to his future plans appeared to be tailored to fit with his proposed course selection in Australia in the future. The Tribunal does not accept the applicant’s evidence in relation to his future plans.
The applicant confirmed that since arriving in Australia on 11 November 2012, he has departed Australia 7 times for periods of between 3 and 9 weeks to visit family back home. The applicant also recently undertook a visit back home for one month in February 2019.
The Tribunal is concerned that the applicant is proposing to stay in Australia until an undetermined time in the future. In this case, the applicant has been in Australia for over 6 years, has had a number of COE certificates cancelled, has changed the focus of his study and career plans a number of times and has only completed two courses. The applicant has indicated to the Tribunal that after completing another 6 to 12 months of English study, he plans to commence a Bachelor of Business in Hospitality and Tourism Management. The applicant told the Tribunal that he feels like a victim of the system because in 6 years he has spent more than AUD$100,000 on courses and miscommunications between teachers and immigration policies have prevented him from studying English. Given that, on the applicant’s evidence, his treatment for [Medical Condition 1] concluded in mid-2017 and he did not enrol in a basic English course alongside his Bachelor of Business (Event Management) at this time because he did not accept that this stage that he needed to learn English before completing a Bachelor’s degree, the Tribunal does not consider his academic progress to be that of a genuine student. The Tribunal considers that if the applicant was committed to completing any further study in Australia, his studies would be further progressed. The Tribunal is not satisfied that the applicant is not simply now proposing further short, inexpensive courses in order to gain a student visa with the primary objective of maintaining ongoing resident in Australia.
In accordance with the Direction, the Tribunal questioned the applicant concerning the circumstances in his home country.
In the information form provided to the Tribunal, the applicant indicated that he is not concerned about military service commitments or political or civil unrest in China. The Tribunal accepts this.
The applicant stated that he did not undertake the university entrance exam in China which would prevent him from undertaking university study in China. He is unable to take the exam now given his age. In the absence of any further evidence in relation to this matter, the Tribunal accepts this.
The applicant told the Tribunal that his parents and younger brother continue to reside in China. The applicant said that he contacts them via Skype or Wechat and in the information the applicant submitted to the Tribunal he said that he contacts them every day. In the information form submitted to the Tribunal the applicant said that “the visa applicant is kind of Celebrity in Chinese social media such as Weibo and Kick Tick. He maintains his fan page every day and thousands of people are following him”. At the hearing, the applicant said that he used to have a great amount of follows and was a social media influencer but he gave this up in the second half of 2017 to focus on his studies. The applicant confirmed that he and his brother have access to properties in China valued at a bit under AUD$1,000,000. The Tribunal accepts that the presence of his family and access to property in China would constitute an incentive to return to China.
In accordance with the Direction, the Tribunal questioned the applicant about the value of the course to the applicant’s future.
The Tribunal has had regard information provided by the applicant evidencing that he completed high school in China. The Tribunal accepts the applicant’s education history in his home country as presented to the Tribunal.
The applicant told the Tribunal that before he was diagnosed with [Medical Condition 1] he was working as a casual but that he has not worked in Australia since he was [diagnosed]. The applicant did not provide the Tribunal with any information about how much he was earning as casual in Australia.
At the hearing, the applicant clarified that he expected to earn up to AUD$10,000/month in China working for a tourism company in China. The applicant said that he had come up with this figure after his father had spoken to his friends in the tourism industry and after the applicant spoke to his friend who works at the company where the applicant wants to work. In the absence of any further evidence in relation to how this figure was arrived at, the Tribunal does not accept this evidence.
Given that the applicant has not provided any information to the Tribunal about how much he previously earned in Australia, the Tribunal makes no findings about whether the applicant’s economic circumstances in Australia presents a significant incentive for the applicant to remain in Australia.
In accordance with the Direction, the Tribunal questioned the applicant about his immigration history. In the information form submitted to the Tribunal, the applicant confirmed that he has been granted one student visa from November 2012 to August 2018 and that his current visa application is his second student visa application.
The applicant agreed that he was not enrolled in a course of study and was not studying for a period between 22 October 2018 and 18 March 2019. This is a breach of the applicant’s visa condition 8202 which provides that the holder of a student visa must be enrolled in a full-time registered course and must maintain enrolment in a registered course. Given the Tribunal’s earlier findings that:
a.there is no evidence before the Tribunal indicating that the applicant suffered any mental condition that would have prevented him from continuing with his Bachelor of Business (Event Management) or enrolling in an English Course alongside his Bachelor of Business after he concluded his [Medical Condition 1] treatment in mid-2017;
b.it would not be unreasonable to expect the applicant to have enrolled in a basic English course alongside his Bachelor of Business after he concluded his [treatment] in mid-2017 to address his long-standing issue with English proficiency;
c.the Tribunal does not accept the applicant’s evidence that he did not have access to sufficient funds in 2018 to enrol in a basic English course in that year; and
the Tribunal finds that the applicant has not provided evidence to the Tribunal justifying this non-compliance with condition 8202.
The information form submitted by the applicant indicates that the applicant has never applied for any other Australian visa where a decision on that application has not yet been made. The information form also indicates that (other than the current student visa application) the applicant has never been refused a visa to any country (including Australia) and has never held a visa to any country (including Australia) that was cancelled or considered for cancellation. The Tribunal makes no in relation to these matters.
Being provided with a final opportunity to identify considerations illustrated in the Direction for the Tribunal’s consideration, the applicant indicated there were no further matters for the tribunal to consider.
There is no evidence before the Tribunal regarding the following factors indicated by the Direction: the applicant’s circumstances in China relative to others in that Country, any previous travel to Australia or other countries by the applicant including, if the applicant previously travelled to Australia whether the applicant complied with conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control and if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country.
As the applicant is over 18 years of age, the intent of any parent, legal guardian or spouse is not relevant to the Tribunal’s assessment.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. The Tribunal has found that the presence of the Applicant’s family and access to property in China would constitute an incentive to return to China. However, taking into account the amount of time the applicant has now spent in Australia on student and associated bridging visas, the fact that the applicant has changed the focus of his studies and his career plans a number of times and has only completed two courses, on balance, the Tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence.
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).
Conclusion on cl.500.212
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Margaret Forrest
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.

[2019] AATA 2337

6 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction