1936370 (Migration)

1936370 (Migration) [2021] AATA 5278 (10 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1936370
MEMBER:Michael Biviano
DATE:10 November 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 10 November 2021 at 10:00 am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – study gap of 1 year and 10 months – onshore for 8 years and 4 months – value of the course – inconsistent with applicant’s level of education – reasons for studying in Australia – substantial financial incentive to remain in Australia – substantial ties to Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311
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 Home Affairs on 11 December 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 18 September 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that she was not a genuine applicant for entry and stay as a student because she did not intend to stay in Australia temporarily.
Further, as the applicant had not met the requirements of cl 500.212(a) of Schedule 2 to the Regulations, the delegate determined that her spouse and child, the secondary applicants, had not met the requirements of cl 500.311 of Schedule 2 to the Regulations and the secondary applicants did not meet the criteria for the grant of a student visa.
The applicants appeared before the Tribunal on 26 July 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary, to enable the examiner to establish the relevant facts.
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 was a genuine applicant for entry and stay as a student.
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 is a [age]-year-old Pakistani national who first came to Australia [in] July 2013. She entered Australia after obtaining an initial student visa (Subclass TU 573).
The decision record of the Delegate of the Department of Home Affairs dated 11 December 2019 which was provided to the Tribunal by the applicant confirms that the applicant made the current application for a student (Class TU Subclass 500) visa on 18 September 2019 (Decision Record).
The Decision Record set out the reasons why the Delegate refused the applicant’s application for a student visa. At the time of the current visa application the applicant was enrolled to undertake a Diploma of Leadership & Management and an Advanced Diploma of Leadership & Management which were to conclude on 3 September 2021.
On 25 March 2021, prior to the hearing, the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses she was studying and information about her entry and stay in Australia in accordance with s 359(2) of the Act (Response).
In addition to the Response the applicant filed a substantial amount of supporting documentation which comprised:
a.handwritten GTE Statement of the applicant dated 25 March 2021 (Statement);
b.medical certificates from [Medical Centre 1] dated 22 March 2021, patient health summary dated 22 March 2021, medical certificate dated 3 June 2020, Department of Health Notification of newborn’s name for [Child A] date of birth being [date] and the form dated 18 November 2020;
c.letter from Australian Careers College dated [in] March 2021 comprising student letter of offer for the applicant to undertake a Diploma of Leadership & Management from 19 April 2021 to 20 April 2022 and an Advanced Diploma of Leadership & Management from 25 April 2022 to 30 April 2023 together with schedule of fees and terms and conditions and invoice;
d.death registration certificate for the applicant’s grandmother dated 29 May 2020;
e.booking confirmation for flights on Jetstar from Melbourne to Darwin dated [in] January 2020;
f.medical certificate from [Medical Centre 1] dated 3 June 2020;
g.boarding pass for Jetstar for the applicant and her spouse dated [in] October 2019;
h.letter from [counselling service provider] dated 23 March 2021 confirming that the applicant had been referred to [the provider] for counselling on 3 February 2021;
i.medical certificate from [Medical Centre 1] dated 8 February 2020;
j.series of text messages exchanged between the applicant and relevant community care and medical providers regarding her health condition and issues with her young baby from 2020 and 2021;
k.confirmation of enrolment (COE) certificate no. [number] for the applicant to study a Diploma of Leadership & Management at Alana Kaye College with a commencement date [in] July 2021 and a course end date [in] July 2022 which was created [in] July 2021;
l.land ownership tables/certificates for landholdings held by [Mr B];
m.letter from [Company 1] dated 19 November 2019 confirming the applicant’s spouse [Mr B] has been working as a [Occupation 1] for several months with that company;
n.deferral application form from IH Business College for the applicant to defer her Diploma of Leadership & Management with a start date [in] September 2019 to November 2019.
Prior to coming to Australia the applicant completed high school in Pakistan and obtained a Bachelor of Arts which she completed in 2009. From August 2009 to March 2013 the applicant worked as an [Occupation 2] at [Business 1] earning approximately AU$12,000 per annum. The applicant gave evidence that the business was owned by her father and operated tours and organised travel for people in Pakistan.
The applicant arrived in Australia [in] July 2013 on a student visa to undertake a Bachelor of Business Accounting which she was undertaking at Cambridge International College.
The applicant whilst in Australia completed the Bachelor of Business Accounting at Cambridge International College. The applicant, on the documentation provided to the Delegate, married [in] June 2013 and she gave birth to her daughter in Australia on [date].
After the conclusion of the Bachelor’s degree the applicant applied for a temporary graduate visa to undertake work here in Australia and gain valuable experience. Whilst here on the temporary graduate visa she enrolled in a professional year for accountants at the Australian Technical & Management College which she studied between July 2018 and June 2019 which she completed. Further, during her professional year the applicant worked in various roles.
The Decision Record confirms that the applicant worked as an agent for [Business 2] which was involved in transport. The applicant gave evidence that her primary objective was to complete her qualifications here in Australia and then return home to work and manage her father’s travel and tourism business where she had previously worked as an [Occupation 2].
The applicant claimed her studies in the Bachelor of Business Accounting were interrupted as a consequence of her father falling ill as a consequence of being diagnosed with cancer and he passed away shortly after the birth of her daughter in 2015. The applicant claims that during that time she suffered severe depression and it interrupted her studies.
She claims that her spouse and daughter joined her in Australia in around 2018 when they successfully obtained secondary visas to come to Australia to support her while on a temporary graduate visa.
The applicant claims that she was further distraught as her spouse was diagnosed with [a medical condition] when he arrived here.
The applicant having completed her professional year then sought to undertake a Diploma of Leadership & Management and an Advanced Diploma of Leadership & Management formerly at the International House Business College. The applicant gave evidence that she did not undertake those studies at the end of 2019 and through 2020. Those studies were supposed to conclude in September 2021.
The applicant claims that she could not undertake those studies as she had a falling out with the College. The falling out arose initially from the College not allowing her to bring her daughter to college and that she was not able to have her spouse looking after her daughter because he was working as a [Occupation 1] and was on the road at the time interstate. Whilst the Tribunal notes that the applicant’s spouse was working which made it difficult for her to look after her young child the whole purpose of the applicant’s spouse coming to this country was to help support her and help look after family while she undertook her studies. The issue of not being able to have her daughter sitting in classes she claims caused her significant stress and she was required to defer on a couple of occasions to start her course at the commencement of 2020 however the relationship with the college broke down over fees and she did not commence those studies.
The applicant claims in 2020 she was unable to study because as discussed above there had been a number of deaths in her family but also distant relatives had passed away by reason of the Covid-19 pandemic and also because she was being harassed at work. The applicant claims that she also had severe difficulties with her life with losing her father’s brother (uncle) and her grandmother around this time that resulted in her falling into a depression. While the applicant submitted documentation that she was struggling to cope with her young child, and medical certificates that state she was stressed and unable to work on occasions, there was no medical evidence tendered that she was suffering from depression to the extent that she was unable to study or enrol in a course of study and defer her studies for the period of 1 year and 10 months, since the date of the application for a student visa.
The applicant claims she then subsequently became pregnant and gave birth to another child on [date].
The applicant has enrolled in a Diploma of Leadership & Management at the Alana Kaye College which was commencing [in] July 2021 and is expected to conclude [in] July 2022. The enrolment in that course was created [in] July 2021 less than two weeks prior to the hearing in this matter.
The applicant has not undertaken any study prior to this date since bringing the application for a student visa which represents a gap of 1 year and 10 months in undertaking studies. The applicant claims she is better now and she can study. The applicant has failed to undertake studies for a period of 1 year and 10 months, in circumstances where she has claimed that she wants to be here for the purposes of study on a student visa. Such a gap in studies is inconsistent with the purpose of a student visa which is to come to this country and undertake studies in a timely manner and after the conclusion of those studies to return home.
The Tribunal considers that the above explanations do not explain the gap in studies of some 1 year and 10 months. Consequently the Tribunal does not accept the applicant’s reasons for the extensive gap in studies justify that she was unable to study.
The applicant has been in this country for 8 years and 4 months and if she completes the course in July 2022 her stay in Australia will have reached 9 years which is a very long period of time and inconsistent with the stay being temporary and inconsistent with the purpose of the visa.
Whilst the applicant claims that circumstances have improved the Tribunal notes that the applicant has only sought to commence studies in the Diploma of Leadership & Management once this matter had received a hearing date.
It appears that the applicant has enrolled in the course solely for the purpose of maintaining residency here rather than to genuinely undertake studies.
The Tribunal notes that the applicant is studying a Diploma of Leadership & Management for the purposes of, and as stated in her Statement, improving her leadership and management skills and business skills so she can run her father’s business. The applicant in evidence confirms that the business has been ravaged by the Covid-19 pandemic and only has 1 employee. The difficulty with the applicant’s evidence that she needs to obtain the Diploma to improve her business skills, is that she has already completed a Bachelor of Business Accounting which she had undertaken for that purpose and obtained work experience here and she has more than had ample opportunity to complete a Diploma of Leadership & Management if it was so essential for her future career development in Pakistan.
Having regard to the value of the course the Tribunal notes that considering the applicant’s two previous Bachelor degrees that she has obtained in Pakistan and in Australia, together with her experience both working in the family business as an [Occupation 2] and working here in Australia, the Diploma of Leadership & Management the applicant is currently enrolled in will only marginally improve her employment prospects and remuneration back in Pakistan.
The applicant has changed her career paths initially from arts to business accounting to now leadership and management. The courses studied are not connected to each other and do not lead to a career path or position of employment. The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However this is not the case where an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses. The course that the applicant has completed in Australia, being a Bachelor of Business Accounting, was a higher education course which she completed in 2017 however now 4 years later the applicant is seeking to undertake a Diploma course which is a VET course and does not reveal any progression in her course of studies.
As discussed above she has obtained previously two Bachelor degrees and the Tribunal finds that her present course of study is inconsistent with her level of education and does not reveal career progression. The Tribunal further notes that the applicant has previously been employed in the business and by reason of her experience and her previous qualifications is sufficiently qualified and experienced to go back to Pakistan and operate the family business.
The applicant has claimed in the Response that she has not undertaken this course of study back in Pakistan because there are no similar courses available in Pakistan in her home town. The applicant gave evidence that there were no similar management courses in Pakistan. The applicant has not provided any documentation or evidence about attempts to gain information about other courses she could study in Pakistan or details of the research that she has carried out. The Tribunal considers it would be remarkable to suggest that there were no management courses or suitable business courses available in Pakistan to assist her in operating a business. The Tribunal does not accept that as being a reasonable motive to come to this country for the purposes of undertaking this course. There is nothing preventing the applicant from undertaking such studies in another part of Pakistan.
Accordingly the Tribunal finds that the applicant does not have reasonable motives to study the Diploma of Leadership & Management in Australia rather than undertake studies in her home country.
The applicant has lived in Australia for the last 8 years and 4 months and has a substantial degree of knowledge about living in Australia. The applicant is undertaking a Diploma of Leadership & Management at a new education provider. However considering the applicant’s previous studies and that the applicant has been enrolled in two prior Diplomas in Leadership & Management but not commenced them at Australian Careers College and at International House Business College, the Tribunal accepts that the applicant has a substantial degree of knowledge about the course and the provider. The applicant has been employed in previous roles whilst in Australia.

The applicant gave evidence that whilst initially here in Australia she completed a Certificate III in Childcare on the side. She did not disclose that in the Response or explain why she had completed that. She claims that she worked from 2014 with [Business 2] which is an agency as a casual working 1 to 2 days per week in childcare earning AU$26 per hour and that her total income did not exceed AU$18,000 per annum which is a substantial level of income. When considered along with the level of income that the applicant’s spouse was earning as a [Occupation 1] it would mean that the applicant and her spouse are earning a substantial level of income whilst here in Australia. The applicant claims that whilst in Australia she has had other roles: she has worked as a picker and packer at [Business 3] for a period of approximately 10 months for which she was on an income of approximately AU$7,000 per annum and also from April 2020 to November 2020 she worked as a [Occupation 3] at [Business 4] earning a salary of AU$20,000 per annum. The applicant has also claimed that she has worked as an [Occupation 1].
The applicant in the Response refused to provide any details of what level of income she would earn back in Pakistan other than to say that as she would be running her own business that her remuneration would depend on the profit that she would make and she claims that she would have a stress-free life in Pakistan running her own business. The applicant gave evidence that the level of wages in Australia is higher than those in Pakistan. The Tribunal notes that the applicant’s previous income as an [Occupation 2] was AU$12,000 per annum. The Tribunal notes that if the applicant is able to remain in Australia on a full-time basis, then the minimum wage in Australia if she obtained full-time employment as at 1 July 2021 as set out by the Fair Work Commission is $772.60 per week which equates to AU$40,175.20 per annum.[1]
[1] National Minimum Wage Order 2021 – PR729671.
Even if the applicant’s income doubles in operating the business she will earn substantially less than the minimum wage here in Australia and having regard to her level of qualifications both in Australia and in Pakistan the Tribunal considers that the level of income she would receive in Australia would be substantially more than what she would receive in Pakistan which would provide her with a substantial financial incentive to remain here rather than to return home.
The applicant also gave evidence that the economic circumstances in Australia are better than those in Pakistan, which would also provide the applicant with a financial incentive to remain here rather than to return home. The applicant gave evidence that her father’s business is now being operated by her brother-in-law. The business has gone bad due to the Covid-19 pandemic and only has 1 employee. The business previously had 4 to 5 employees. Considering the size of the business and the number of employees there the Tribunal considers the requirement of completing a Diploma of Leadership & Management would not improve the business.
The applicant gave evidence in the Statement that she has returned home on at least 2 occasions for the purposes of visiting her father when he was unwell. The applicant in the Response also identified that she had returned home for a period of 3 months in March 2018 when she was supposed to be undertaking study for the purposes of visiting her spouse as he had been diagnosed with [a medical condition] and to visit her family. It is unclear how she could have returned home for that period whilst at the same time undertaking studies in the professional year to complete her accounting qualification.
Based on the applicant’s evidence she has returned home on 3 occasions for what appears to be a significant period of approximately 4 to 5 months. Considering that she has been in this country for 8 years and 4 months the Tribunal considers that the relatively few number of times she has returned home is consistent with her wanting to remain here on a permanent basis rather than to return home.
The applicant both in the Statement and the Response identified that (and she has provided supporting documentation) her spouse has a house and land in Pakistan. The applicant in the Response has identified or assessed that the value of the house is approximately equivalent to AU$200,000 and that she also has gold and furniture back in Pakistan worth a total of AU$10,000. Whilst this ordinarily would provide a substantial incentive for her and her spouse to return home it is important to note that she has been here for a very long period of time and the levels of income that they could earn here in Australia coupled with her ties and economic circumstances here would present her and her spouse with a significant incentive to stay here.
The applicant both in the Response and in evidence did not have any concerns about returning to Pakistan and she had no concerns about military service commitments or political and civil unrest in her home country. The Tribunal finds they do not present as a significant incentive for the applicant not to return home.
The Tribunal finds based on the applicant’s evidence and circumstances in her home country including her assets in conjunction with that of her spouse together with her education and support from her family that relative to others in that country she is in a good position and it would not provide a significant incentive for her not to return home.
The Tribunal accepts that the applicant and her spouse have been married since 2013 and they are not in a relationship of concern for a successful visa outcome.
The applicant has both personal ties to Australia and to her home in Pakistan. The applicant both in the Response and in the Statement confirmed that she has substantial ties to Pakistan. The applicant has her mother, her two sisters and extended family in Pakistan which would ordinarily provide her with a substantial incentive to return home. However those ties must be considered in connection with her ties here in Australia and that she has been here for the last 8 years and 4 months together with her circumstances here and the higher levels of income that she can receive here with her spouse and staying here with her children. The applicant intends staying here for at least a further 9 months and has previously enrolled to undertake an Advanced Diploma of Leadership & Management which would extend her study for a further year. The Tribunal finds that her ties to her home country do not provide a significant incentive for her to return home to Pakistan.
Further the applicant has substantial ties to Australia. She is here with her spouse and two children, both of whom she has given birth to here. She has been here for 8 years and 4 months. The applicant in the Statement to the Delegate about her circumstances here confirmed that she is involved in donating blood, giving to the Royal Melbourne Hospital charities and was involved in driving Uber vehicles at night to make sure females got home safely. The applicant’s concern and involvement with the community here is consistent with her developing community ties here and when coupled with the duration and stability of her living arrangements in Australia together with prospects of earning higher levels of income they demonstrate a strong incentive for her and her family to remain here rather than to return home.
The applicant in her Response has not identified any visa refusals or visa cancellations either in Australia or elsewhere. There is nothing before the Tribunal from the Delegate’s Decision Record to indicate the applicant has experienced any other visa refusals or any other immigration issues either in or outside of Australia.
In light of the long duration that the applicant has spent in Australia together with the fact that she is studying a VET course for the purposes of obtaining management skills to run a business which only has 1 employee, and she could undertake a suitable business course back in Pakistan, the Tribunal considers that the applicant has made this application to gain a student visa to maintain ongoing residence in Australia and remain here permanently and not to study temporarily here in Australia.
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).
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.
Further, as the applicant has not met the requirements of cl 500.212(a) of Schedule 2 to the Regulations, then the secondary applicants do not meet the requirements of cl 500.311 of Schedule 2 to the Regulations and do not meet the criteria for the grant of a student visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Michael Biviano
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.

[2021] AATA 5278

10 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction